Director of Public Prosecutions (ACT) v Shui (a pseudonym)
[2022] ACTSC 62
•24 March 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions (ACT) v Shui (a pseudonym) |
Citation: | [2022] ACTSC 62 |
Hearing Dates: | 10 December 2021 and 17 December 2021 |
DecisionDate: | 24 March 2022 |
ReasonsDate: | 6 April 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [112] |
Catchwords: | CONFISCATION OF CRIMINAL ASSETS – Application by non-party to inspect and uplift affidavits relied on in closed court proceeding involving restraining orders over property – application brought by media – “restricted access proceeding” in the Confiscation of Criminal Assets Act 2003 (ACT) – open justice – r 2903 of the Court Procedures Rules 2006 (ACT) – application opposed by defendants – application neither opposed nor consented to by DPP and Commissioner of the AFP |
Legislation Cited: | Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 50A Confiscation Act 1997 (Vic) ss 16, 17, 19 Taxation Administration Act 1953 (Cth) sch 1; ss 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355 |
Cases Cited: | Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756 Australian Securities & Investments Commission v Rich [2001] NSWSC 496; 51 NSWLR 643 Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192 |
Texts Cited: | Explanatory Statement, Confiscation of Criminal Assets Bill 2002 (ACT) |
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 R McCrone ( Plaintiff) G Jones ( Defendants) E Batrouney (Applicant) M Pekevska (Interested Party) |
| Solicitors ACT Director of Public Prosecutions ( Plaintiff) AKN & Associates ( Defendants) The Age Company Pty Ltd (Applicant) Australian Government Solicitor (Interested Party) | |
File Number: | SC 110 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 26 March 2021, I made a restraining order under the Confiscation of Criminal Assets Act 2003 (ACT) (COCA Act) in relation to interests in certain property of Ms Vivian Shui (a pseudonym) (the first defendant), the second defendant, the third defendant, and the fourth defendant brought by the ACT Director of Public Prosecutions (the DPP). The second defendant, third, and fourth defendants’ interests in property were suspected to be under the effective control of the first defendant and therefore tainted property. A supporting affidavit of Constable James Johnston affirmed 24 March 2021 was read in support of the DPP’s application. Pursuant to s 243 of the COCA Act the proceeding was a restricted access proceeding, without notice to the defendants and pursuant to subsection (5), the application was heard in closed court. That is, the application was heard ex parte and the court was closed.
On 10 May 2021, I made a further restraining order under the COCA Act in relation to interests in certain property of the fifth defendant and the sixth defendant, interests which were suspected to be under the effect control of the first defendant and tainted property. The fifth and sixth defendant were joined to the proceedings pursuant to r 220 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) on this date. The application was again brought by the DPP. A supporting affidavit of Constable James Johnston affirmed 5 May 2021 was read in support of the DPP’s application. Again, pursuant to s 243 of the COCA Act, the proceeding was a restricted access proceeding heard ex parte and pursuant to subsection (5), the application was heard in closed court.
On 28 April 2021, the substantive proceedings resolved by way of consent orders pursuant to s 252 of the COCA Act made without admissions. The consent orders included an order that one of the first defendant’s interests in an ACT property be forfeited to the Territory, pursuant to s 67 of the COCA Act, and an unexplained wealth order against the first defendant in the sum $2,250,000, pursuant to s 98D of the COCA Act.
On 14 October 2021, the Age Company Pty Ltd (the applicant) filed an application seeking leave for the applicant to uplift and copy any affidavit relied on by the plaintiff at the ex parte hearing on 10 May 2021, pursuant to s 2903 of the Court Procedures Rules. The application came before me for mention on 21 October 2021 where the Commissioner of the Australian Federal Police (Commissioner of the AFP) was granted leave to be heard on the applicant’s application and a timetable was set for the filing of submissions as well as a hearing date. Having been advised by the DPP that there were two hearings where restraining orders were granted, the applicant revised its application seeking leave to uplift and copy the James Johnston affidavit affirmed 24 March 2021 relied on at the hearing on 26 March 2021 and the James Johnston affidavit affirmed 5 May 2021 relied on at the hearing on 10 May 2021. The hearing of the applicant’s application proceeded before me on 10 December 2021 and 17 December 2021.
On 24 March 2022, I made orders. The final form of the orders is that:
1. The applicant is granted leave to inspect and uplift the affidavit of James Johnston affirmed 24 March 2021 as set out in redacted form in the second confidential affidavit of Scott Moller sworn 25 November 2021 as annexed therein as “SJM-5” and the affidavit of James Johnston affirmed 5 May 2021 as set out in redacted form in the first confidential affidavit of Scott Moller sworn 15 November 2021 as annexed therein as “SJM-3”, with two further redactions: the full and/or partial names of the second defendant and the third defendant in the affidavit of James Johnston affirmed 24 March 2021.
2. The further redacted affidavits of James Johnston are to be provided to chambers by the Commissioner of the AFP before inspection and uplift occurs by the applicant.
3. Orders 1 and 2 are stayed until publication of these reasons for 48 hours. Parties then have liberty to apply.
4. Reasons to follow.
5. Costs will be determined on the papers upon receipt of submissions.
My reasons for order 1 now follow. I also note that the names of the fourth defendant and the fifth defendant are already part of the proposed redactions.
Relevant Legislation
The applicant brings an application pursuant to r 2903 of the Court Procedures Rules. That rule relevantly provides:
2903Inspection of registry files
(1)Anyone may search the registry for, inspect, or take a copy of, any document filed in the registry.
Note 1For a family or personal violence proceeding, a party to the proceeding may inspect, or take a copy of, a document filed in the registry provided the document does not include an affected person’s home or work address or other information that may allow the affected person to be located (see r 3802 (2) (s)).
Note 2Rule 4053 (Criminal proceedings—inspection of registry files) applies to documents filed in criminal proceedings.
(2)However, the registrar must not allow a person who is not a party to a proceeding to search the registry for, inspect, or take a copy of, any of the following documents about the proceeding unless the person appears to the registrar to have a sufficient interest in the document or the court gives leave:
(a)an order, transcript of the proceeding, or any other document, that the court has ordered to be kept confidential;
(b)an affidavit that has not been read in court;
(c)a part of an affidavit ruled to be inadmissible in evidence;
(d)an interrogatory, or an answer to an interrogatory, that has not been admitted into evidence;
(e)a list of documents given on discovery;
(f)an admission that has not been admitted into evidence;
(g)a subpoena;
NoteRule 6609 (Inspection of, and dealing with, subpoenaed documents and things produced otherwise than on attendance) deals with the inspection of documents produced in response to a subpoena.
(h)an application for leave to serve a subpoena in New Zealand;
(i)a document in relation to a proceeding about the adoption, custody or guardianship of a child;
(j)a document in relation to a proceeding under the Family Law Act 1975 (Cwlth);
(k)a document filed in the probate jurisdiction, other than—
(i)a grant of probate or letters of administration; or
(ii)an order to administer an estate; or
(iii)a proceeding about a contested matter;
(l)a deposition taken before an examiner;
(m)a document filed in support of an application made in the absence of a party;
(n)a written submission that has not been read in court;
(o)an unsworn statement of evidence;
(p)a document that the registrar decides should be confidential to the parties to the proceeding in the interests of justice.
NotePt 6.2 (Applications in proceedings) applies to an application for leave under this rule.
…
Section 243 of the COCA Act is also important in the context of this matter. That section provides:
243Restricted access proceedings—notice of applications etc
(1)This section applies to a confiscation proceeding for any of the following orders (a restricted access proceeding):
(a)a restraining order;
(b)an application by the DPP or public trustee and guardian for an additional order under section 39 in relation to a restraining order or restrained property;
(c)an order under section 49 (Extension of time for restraining orders) that a restraining order—
(i)is to remain in force for a stated period (or as stated in the order); or
(ii)that has ended is to be revived for a stated period (or as stated in the order);
(d)a monitoring order;
(e)a transaction suspension order;
(f)a production order (other than an application to vary a production order under section 162);
(g)an examination order.
(2)An application to begin a restricted access proceeding may be made to a relevant court without notice to the person against whom the relevant order is sought.
(3)If an application is made to begin a restricted access proceeding without notice to the person against whom the relevant order is sought, the applicant is the only party to the application.
(4)If notice is given to the person against whom the order is sought, the person is entitled to appear and to present evidence at the hearing of the application, but the person’s absence does not prevent the court from making the order.
(5)The relevant court must hold a restricted access proceeding in closed court if the applicant asks and may give directions about who may be present.
Evidence
Affidavits of Samuel White
In support of its application, the applicant relied upon an affidavit of Mr Samuel White affirmed 14 October 2021 (the first White affidavit). In the first White affidavit, Mr White confirms that he is Editorial Counsel at Nine Entertainment Co, the parent company of the applicant. The first White affidavit details that the applicant is the publisher of The Age newspaper and the new media website located at the URL The Age regularly reports on matters involving organised crime in Australia and matters that are before the courts in all Australian states and territories. Mr White deposed that The Age has an interest in publishing fair and accurate reports of matters that are before the courts, and the public has an interest in The Age reporting on those matters. The first White affidavit concludes by Mr White stating that he is informed and believes that the proceedings relate to matters that are of significant interest to The Age’s reporting.
Mr White also prepared a second affidavit affirmed 5 November 2021 (the second White affidavit). In the second White affidavit, Mr White noted that on around 17 September 2021, a journalist employed by the applicant, Mr Nick McKenzie, made a request by email to the Court registry to “review the affidavit of the AFP that was lodged in a civil confiscation case on 10 May 2021” in these proceedings. On around 23 September 2021, the Senior Deputy Registrar confirmed that a formal application with a supporting affidavit would need to be lodged. That correspondence was exhibited to the second White affidavit. Thereafter, the application was formally lodged and filed with the court, along with the first White affidavit in support.
On around 29 October 2021, Mr White received an email from Mr Rory McCrone, the representative in this matter for the DPP. In that correspondence Mr McCrone confirmed that the relevant affidavits in this matter were the affidavit of James Johnston affirmed 24 March 2021 and the affidavit of James Johnston affirmed 5 May 2021 (the Johnston affidavits).
The second White affidavit sets out The Age newspaper’s public interest in court reporting. Mr White refers to The Age taking its court reporting function seriously and that The Age has an interest in publishing fair and accurate reports of matters that are before the courts. Mr White also notes that the court reporting of The Age extends to reporting on civil confiscation proceedings, including reporting on evidence that is filed in ex parte proceedings. In the second White affidavit, Mr White states that there is a public interest in reporting on civil confiscation proceedings, particularly when the assets confiscated are believed to be the proceeds of criminal activity.
Mr White further sets out that he is informed and verily believes that The Age has previously applied for and been granted access to affidavit material filed in civil confiscation proceedings. The second White affidavit cites other matters therein, including an order by Whelan J to vacate an earlier made confidentiality order in Victorian confiscation proceedings related to Antonius (Tony) Mokbel: Order of Whelan J in In the matter of the Confiscation Act 1997 (Supreme Court of Victoria, S CR 2010 1216, 13 April 2010).
In the second White affidavit, Mr White states that The Age considers its reporting on, and exposure of, organised crime is in the public interest in light of the concern expressed by law enforcement as to the scale and seriousness of organised crime operations in Australia and due to the corrosive nature of organised crime upon civil society.
The second White affidavit sets out the background of Mr McKenzie and the Age’s interest in the proceedings. Mr White notes that among Mr McKenzie’s principal journalistic interests are high level organised crime, the response of law enforcement to such organised crime including asset seizure and confiscation regimes, and illegal prostitution.
Mr White notes that in the course of its investigation, journalists at The Age became aware of the proceedings and were made aware of other publicly accessible media reporting on them. The second White affidavit exhibited a bundle of media reporting on the proceedings. Mr White observed that the existing media reports demonstrated that:
(a) The proceedings relate to the largest restraint of criminal assets in the Territory’s history, valued at over $10 million;
(b) The assets seized were alleged to be connected to an illegal brothel enterprise operating throughout Australia;
(c) The assets seized included cash, houses and apartments;
(d) The DPP on behalf of ACT Policing successfully applied to the Supreme Court of the ACT for the restraint of two properties used in the brothel enterprise, worth an estimated $2.8 million;
(e) The police investigation related to a woman operating “multiple brothels nationally”; and
(f) One purpose of the seizure of assets was to ensure that organised criminal groups could not accumulate or reinvest the money derived from illegal activity.
Mr White notes that based on the content of the existing public reporting, the proceedings are relevant and of interest to The Age’s investigation because they involve allegations of a large-scale criminal enterprise related to a national network of illegal brothels.
Mr White stated that the applicant seeks access to the affidavits so that it can fairly and accurately report on the details and nature of the police investigation that led to the proceedings in a more comprehensive manner than has been done by other media to date. Mr White deposed that the applicant believed it can fairly and accurately report on the proceedings in a way that will not compromise any ongoing police investigations.
Mr White deposed that it is clear from the existing media reporting that the scale and importance of the police investigation the subject of these proceedings is significant. Mr White noted that he is of the view, having regard to the subject matter and in particular the scale and seriousness of investigation and the fact that it has not properly been fully brought to light to the public, that reporting of this matter is in the public interest.
Affidavits of Scott Moller
Detective Superintendent Scott Moller prepared various affidavits on behalf of the Commissioner of the AFP. Detective Superintendent Moller prepared an open affidavit and a confidential affidavit sworn on 15 November 2021.
The open affidavit sworn on 15 November 2021 sets out the qualifications of Detective Superintendent Moller and the position of the Commissioner of the AFP as to the applicant’s application. Detective Superintendent Moller confirms that upon reviewing the relevant affidavits of James Johnston, the Commissioner of the AFP would not object to the Court giving access to The Age of redacted versions of the Johnston affidavits. A letter from Ms Siobhan Stoddart from the Australian Government Solicitor is annexed to the affidavit of Detective Superintendent Moller confirming that the redactions sought by the Commissioner of the AFP to the Johnston affidavits are minimal, limited to certain personal information and information the subject of statutory secrecy provisions.
Detective Superintendent Moller noted that at the time of swearing the open affidavit, the position of the DPP was not known to the Commissioner of the AFP. However, Detective Superintendent Moller acknowledged that the Commissioner of the AFP was aware that the defendants were objecting to the applicant inspecting and uplifting the relevant Johnston affidavits.
Detective Superintendent Moller sets out that the Commissioner of the AFP seek to apply the following redactions to the Johnston affidavits if they are released to the applicant:
(a) Personal details of the defendants to the proceedings (including their dates of birth, telephone numbers, email addresses, addresses and passport numbers, bank account, home loan, and credit card details;
(b) The personal information of complainants who notified police of their suspicions of any criminal behaviour.
(c) The names of any females at addresses where alleged prostitution or other like behaviour was being undertaken. These females may be sex workers;
(d) The names of any males identified at these addresses who may be clients of the alleged sex work (including their address details).
(e) Any telephone numbers (or parts of telephone numbers) of any alleged prostitution/ brothel services;
(f) The details of various persons that were spoken to as part of the AFP’s investigation that are not related to the defendants.
(g) Family members names of the defendants who are not involved in the proceedings.
Detective Superintendent Moller also noted that the Commissioner of the AFP identified material contained in the Johnston affidavits which would require redaction based on the secrecy provisions in s 50A of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (Anti-Money Laundering and Counter-Terrorism Financing Act) and ss 335-355 of sch 1 of the Taxation Administration Act 1953 (Cth) (Taxation Administration Act).
The confidential affidavit of Detective Superintendent Moller sworn on 15 November 2021 was provided directly to chambers upon the Commissioner of the AFP being granted leave to do so. The confidential affidavit was provided to the DPP and the defendants, but not to the applicant. In the confidential affidavit, Detective Superintendent Moller annexes the Johnston affidavits in a form so that the Court could identify what redactions the Commissioner of the AFP sought. The proposed redactions are either in a red box: where the sought redaction is made on the basis of personal information or a blue box: where the sought redactions are based on the statutory secrecy provisions in s 50A of the Anti-Money Laundering and Counter-Terrorism Financing Act and ss 335-355 of sch 1 of the Taxation Administration Act.
Detective Superintendent Moller prepared two further affidavits in this matter sworn on 25 November 2021: a further open affidavit and a further confidential affidavit. In the second open affidavit, Detective Superintendent Moller confirmed that he deposed a further affidavit in response to submissions of the defendant filed on 16 November 2021 about the application of pt 12 of the COCA Act, the defendants noted that material in the relevant Johnston affidavits may be caught under the information gathering provisions under pt 12 of the COCA Act. This would have the effect of s 192 of the COCA Act applying which would prevent disclosure.
Detective Superintendent Moller notes in the second open affidavit that the legal representatives for the Commissioner of the AFP made enquiries as to whether pt 12 of the COCA Act, specifically the “non-disclosable information orders” listed in s 191 of the COCA Act being an inquiry notice, a monitoring order, a transaction suspension order, a production order, an examination order and an examination notice, were utilised by the AFP in undertaking their investigations relevant to the matters affirmed in the affidavits. Detective Superintendent Moller goes on to confirm that there is no information contained within the relevant Johnston affidavits that has arisen from any “non-disclosable information order” as defined in s 191 of the COCA Act. Detective Superintendent Moller confirms that for the most part, the AFP relied on search warrants to collect the information contained in the Johnston affidavits pursuant to div 10.2 of the Crimes Act 1900 (ACT) (Crimes Act) together with other investigative methods that did not fall within pt 12 of the COCA Act.
In the second confidential affidavit, Detective Superintendent Moller notes that the purpose of deposing a further confidential affidavit is to propose further sought redactions to the Johnston affidavit affirmed on 24 March 2021. The proposed further redaction is sought because it touches on matters relating to pt 12 of the COCA Act. Detective Superintendent Moller annexed a further proposed redacted version of the Johnston affidavit affirmed on 24 March 2021, with the proposed redaction contained in a green box. Detective Superintendent Moller sought that this version of the Johnston affidavit affirmed on 24 March 2021 replace the exhibit of the previous version to the first confidential affidavit. It is noted that the second confidential affidavit of Detective Superintendent Moller did not seek any further redactions of the Johnston affidavit affirmed on 5 May 2021.
Submissions
Applicant Submissions
At the outset of submissions, the applicant noted that as it is a non-party, its knowledge of the background to and the current status of the substantive proceeding was limited. The applicant therefore anticipated filing further submissions in reply following receipt of the material relied upon by the defendants opposing the application.
The applicant noted that r 2903(1) of the Court Procedures Rules provides that anyone may inspect, or take a copy of, any document filed in the registry. However, r 2903(2) provides that leave of the Court is required where access is sought to certain categories of documents. It was submitted that when considering whether to grant leave under r 2903(2) to a non-party seeking access to material relied upon by the Court, the principle of open justice applies: ACCC v ABB Transmission and Distribution Ltd(No 3) [2002] FCA 609 (ACCC v ABB Transmission and Distribution Ltd (No 3)) at [7]; R v Jovanovic [2014] ACTSC 98; 285 FLR 108 (R v Jovanovic) at [9]-[16]. The applicant noted that in such cases, there is a presumption in favour in permitting access and access should only be refused in exceptional and special cases: David Syme & Co v General Motors-Holden Ltd [1984] 2 NSWLR 294 (David Syme & Co v General Motors-Holden Ltd) at 299. The applicant acknowledged that the principle of open justice is not absolute.
The applicant submitted that the presumption is particularly so where leave is sought by a media organisation. It was submitted that the entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. The applicant submitted that nothing should be done to discourage fair and accurate reporting of proceedings: John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; 61 NSWLR 344 (John Fairfax Publications Pty Ltd v District Court (NSW)) at [20]. The Court proceeds on the assumption that the media will use the material to which it seeks access to produce a fair and accurate report: R v Jovanovic at [53].
The applicant submitted that in line with Refshauge J in R v Jovanovic at [56] citing Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192 at [27], other relevant factors in the exercise of the Court’s discretion as to whether to grant leave include:
(a) Whether and if so to what extent the document has been referred to in open court;
(b) The stage reached in the proceedings;
(c) The contents of the document;
(d) The nature of the proceedings;
(e) Whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process; and
(f) The purpose for which access is required.
In relying on the second White affidavit, the applicant submitted that leave should be granted to the applicant to inspect and copy the Johnston affidavits as there is a public interest in reporting on civil confiscation proceedings. Reference was made to Mr McKenzie and his many journalistic accolades. It was emphasised that Mr McKenzie is currently investigating the societal impact of the illegal sex trade in Australia. It was submitted that the public interest in media reporting on such matters is significant because it raises public and political awareness of the regulatory and legal regime concerning prostitution and worker exploitation.
The applicant referred to the existing media reporting of this matter, as set out in the second White affidavit. It was submitted that in the circumstances, granting access to the affidavits is necessary to facilitate an understanding of the proceeding and therefore, a fair and accurate report. The applicant emphasised that the existing media coverage reported that the assets restrained had a value of over $10 million. The applicant submitted that the public interest in media reporting on this subject matter is significant and is of interest to The Age’s ongoing investigation into the illegal sex trade and the connection with organised crime.
It was further submitted that there is no presumption that affidavits relied upon in a “restricted access proceeding” under s 243 of the COCA Act should not be subjected to public scrutiny to enable a full and fair report of the proceeding. The applicant submitted that this was particularly so where affidavits, relied on in an ex parte application, have been served on a defendant and restraining orders imposed. It was submitted that the basis for the making of orders on an ex parte application must be available so that the Court is accountable for what it has done after it has considered the information provided to it: Australian Securities & Investments Commission v Rich [2001] NSWSC 496; 51 NSWLR 643 at [25] (Australian Securities & Investments Commission v Rich).
The applicant submitted that it was for the parties opposing the application to demonstrate an exceptional and special case such that leave should be refused. It was submitted that the Court must also be satisfied that any restrictions imposed on the principle of open justice are the minimum necessary to secure any other legitimate interest, such as the integrity of any ongoing police investigation.
Defendants’ Submissions
The defendants submitted that the starting point for r 2903(2) of the Court Procedures Rules precludes access for a non-party to inspect documents unless the Court grants leave. The defendants submitted that contrary to the position of the applicant, there is no requirement of an exceptional or special case. The defendants noted that there is no prescription for the granting of leave within r 2903(2) of the Court Procedures Rules. Noting that the applicant relies primarily upon the open justice principle, it was submitted by the defendants that this principle “has limitations and one of those limitations relates to court files and therefore exhibits” citing R v Jovanovic at [17].
The defendants noted that some caution needed to be applied to R v Jovanovic as what was sought in that matter by the relevant media organisations was CCTV footage that was tendered as exhibits in a jury trial and relevant at the sentence hearing. The defendants emphasised that the CCTV footage was played in open court and that all parties were represented. The defendants further highlighted that in R v Jovanovic, the offender had been convicted of a criminal offence by a jury, whereas the defendants in the present matter were yet to have any charges laid against them.
It was correctly submitted that the authorities establish that due caution must be exercised when:
(a) The relevant documents were not used in open court: R v Jovanovic at [39(e)].
(b) The proceedings were at an interlocutory stage: David Syme & Co Ltd v General Motors-Holden Ltd at 297.
(c) There was no attendance by any of the defendants on 26 March 2021 and 10 May 2021: r 2903(2)(m) Court Procedures Rules.
(d) There had been no opportunity to ascertain and evaluate from all defendants’ perspective, including no cross-examination.
The defendants submitted that a further consideration emphasised in R v Jovanovic at [65] was the often-stated quote from Deane, Gaudron and McHugh JJ in R v Glennon (1992) 173 CLR 592 at 623 (R v Glennon) that “the central prescript of our criminal law is that no person shall be convicted of a crime otherwise than after a fair trial…”. The defendants submitted that the Johnston affidavits asserted conduct both in the Territory and externally of either a criminal and or administrative nature that may render a person liable to either criminal or civil sanction. The defendants emphasised that apart from the proceedings finalising by way of consent orders, no further criminal or civil proceedings have yet to be commenced against any of the defendants.
In referring to the DPP neither opposing nor consenting to the application, the defendants submitted that the DPP had taken the position of a model litigant, which was appropriate as the DPP’s task for the Territory finalised by way of the consent orders.
The defendants submitted that the position of the Commissioner of the AFP was somewhat more vexed than the DPP. The defendants accepted that the Commissioner of the AFP has a sufficient interest in the proceedings: r 2903(2) Court Procedures Rules. In referring to the position of the Commissioner of the AFP that it did not oppose the disclosure of the Johnston affidavits in redacted form, the defendants confirmed they opposed this course. It was submitted that unless undertakings were provided from various stakeholders not to prosecute, including the Territory and interstate law enforcement and regulatory bodies who were not parties to the original proceeding, the Court would be unable to ensure that the principle from R v Glennon could be upheld.
It was submitted that the applicant recognised ongoing police investigations in the second White affidavit, but had failed to recognise the interests of all the defendants. The defendants submitted that future criminal and or administrative proceedings are relevant important considerations: Re Fairfax Media Publications Pty Ltd [2017] NSWSC 1779 (Re Fairfax Media Publications Pty Ltd) at [20]. It was further submitted that the protection of the interests of the parties to the litigation is a further principle of justice that must be considered: Re Fairfax Media Publications Pty Ltd at [16].
The defendants also submitted that a further consideration is that the ancillary orders under s 255 the COCA Act provide that self-incrimination measures are overridden:
255 Self-incrimination and other privileges overridden
(1)This section applies despite the Legislation Act, part 15.4 (Preservation of certain common law privileges) if a person is required to disclose anything in a confiscation proceeding, by an order under this Act, or otherwise under this Act.
(2)The person is not excused from the disclosure because—
(a)the disclosure might tend to incriminate the person or make the person liable to a penalty, or the person’s property liable to forfeiture, under this Act or another territory law; or
(b)the disclosure would be in breach of an obligation (whether imposed by law or otherwise) of the person not to make the disclosure.
Example—legal professional privilege
A person is not excused from disclosing a document because to do so would be in breach of an obligation by a lawyer to a client not to disclose the existence or contents of the document.
(3)However, the disclosure is inadmissible against the person making the disclosure in a civil or criminal proceeding except—
(a)in a criminal proceeding in relation to giving false or misleading documents, information or testimony; or
(b)in a proceeding on an application under this Act; or
(c)in a proceeding for an additional order under section 39 or section 250 in relation to another confiscation proceeding under this Act; or
(d)in a proceeding for enforcement of a confiscation forfeiture order, an automatic forfeiture or a penalty order; or
(e)for a document—in a civil proceeding in relation to a right or liability it gives or imposes.
(4)An action does not lie against a person because of the disclosure if it is in breach of an obligation the person would otherwise have (whether imposed by law or applying otherwise).
(5)In this section:
disclosure, by a person, includes—
(a)the person answering a question or giving testimony or information to someone else; and
(b)the person giving or producing a statement, document or anything else to someone else.
Example of disclosure
giving information about the nature or location of property held by anyone
The defendants ultimately submitted that the Court ought to adopt the approach taken by Lonergan J in Re Fairfax Media Publications Pty Ltd and submitted that this approach was highly persuasive to the present application for the following reasons:
(a) It dealt with the release of information provided on an ex-parte basis, in relation to proceeds of crime proceedings under the NSW equivalent of the COCA Act, which also overrides self-incrimination;
(b) The material had not been tendered in open court,
(c) Fairfax had relied upon the same principle of “open justice”,
(d) The NSW Crime Commission objected to the release of the information given the potential for it to interfere with future criminal proceedings.
It was submitted that Re Fairfax Media Publications Pty Ltd was persuasive in relation to how the Court would determine the application.
Upon receipt of the proposed redacted versions of the Johnston affidavits, the defendants raised concern that the information gathering provisions under pt 12 of the COCA Act or under the Crimes Act, which it was submitted in turn refers back to the COCA Act, may have been engaged in order to compile the information contained in the affidavits. The defendants noted that s 192 of the COCA Act provides that the disclosure of such material is a criminal offence and there is no provision for disclosure to media outlets. It was submitted that in the absence of clear evidence that the relevant evidence is not sourced, either directly or indirectly, from non-disclosable information or information obtained under compulsion, the Court would be reticent to grant leave to access the information.
The defendants ultimately submitted that the applicant’s application should be dismissed and emphasised that the relevant Johnston affidavits were tendered in civil proceedings, in closed court on an ex parte basis. The defendants submitted that it must be doubted whether the principle of open justice is engaged.
It was submitted that the predominant bases for which leave should not be granted can be summarised as follows:
(a) There is a potential for criminal proceedings. While an undertaking was provided by the DPP for the Territory not prosecute, this does not alleviate the potential for criminal proceedings in other jurisdictions unless there are corresponding undertakings from relevant stakeholders. It was submitted that the potential to prejudice criminal proceedings must be real: Re Fairfax Media Publications Pty Ltd at [20]; and
(b) It is not in the interests of the defendants to release information that was conveyed in closed court on an ex-parte basis in strictly civil proceedings. It was submitted that the defendants had invoked s 5A of the Court Procedures Act2004 (ACT) in resolving the substantive dispute quickly, inexpensively and efficiently by way of consent orders without admissions. Section 5A of the Court Procedures Act is enlivened as the Court considers invoking r 2903(2) of the Court Procedures Rules.
The defendants submitted that if the Court was minded to grant the applicant access to inspect and uplift the Johnston affidavits, further redactions should be made for the following reasons:
(a) Personal information of a person who has committed no crime.
(b) Personal information of a person who is not charged with committing a crime.
The defendants noted that the only defendant suspected of committing a crime was the first defendant. It was submitted that mention of the remaining defendants should be redacted and set out a schedule containing the relevant paragraph numbers of the Johnston affidavits that ought to be redacted.
DPP Submissions
The DPP confirmed that it neither consented to nor opposed the orders sought by the applicant to inspect and uplift the relevant Johnston affidavits. Noting that the DPP is the only entity capable of bringing applications for restraining orders under the COCA Act pursuant to ss 25(1), 26(1) and 26A(1), the purpose of the DPP’s submissions were to assist the Court on the application of the principle of open justice to proceedings under the COCA Act. The position of the DPP was taken on the basis that the proceeding between the DPP and the defendants had concluded, in light of the consent orders made without admissions.
The DPP agreed with the applicant’s submission that r 2903 of the Court Procedures Rules is a statutory basis on which a non-party seeks access to the Court file, and in deciding to grant leave under r 2903(2) the principle of open justice applies.
The DPP agreed with the submissions of the parties regarding the factors to be taken into account by the Court in granting leave under r 2903(2) of the Court Procedures Rules but correctly noted the following additional factors:
(a) The “principle of open justice” is a principle, not a freestanding right;
(b) There is no single applicable test;
(c) The principle needs to be balanced against other principles of justice;
(d) The principle must give way or accept modification to ensure that proceedings are conducted in a manner which serves the overall interests of society.
The DPP underlined for the Court’s attention features of applications for restraining orders under the COCA Act, which it noted may be relevant in deciding whether to grant leave under r 2903(2) of the Court Procedures Rules. The DPP noted that an application for a restraining order pursuant to s 19, is a “confiscation proceeding” as defined by s 236 of the COCA Act.
The DPP noted that s 237 of the COCA Act provides that confiscation proceedings are civil proceedings and not criminal, and clearly prescribes the rules of interpretation and evidence that apply to confiscation proceedings. It was noted that the DPP is the only entity in the Territory who may commence a confiscation proceeding for a restraining order over property, pursuant to ss 25(1), 26(1) and 26A of the COCA Act. The AFP and the Commissioner of the AFP are not parties to an application for a restraining order. Pursuant to reg 10 of the Confiscation of Criminal Assets Regulation 2003 (ACT), a police officer may only propose that property be restrained under the COCA Act, by giving the DPP written notice detailing:
(a) The property to which the proposal relates;
(b) The name and address of anyone whom the police officer believes has an interest in the property; and
(c) Any other information the police officer considers appropriate.
The DPP highlighted that whilst a police officer may propose that property be restrained under the COCA Act, the decision to commence a confiscation proceeding for a restraining order is solely a matter for the Director. The DPP noted that an application for a restraining order is an interlocutory proceeding as it does not determine any substantive issues between the parties: Hardel Pty Ltd v Burrell & Family Pty Ltd [2009] SASC 77; 103 SAS 408 at [34]-[38] and Burnett v Director of Public Prosecution (NT) [2007] NTCA 7; 21 NTLR 39 at [72]. Section 22 of the COCA Act establishes that the purpose of a restraining order is to preserve property so that it is available to satisfy forfeiture or other orders made under the COCA Act. It was submitted that an application for a restraining order is akin to an application for an interim or interlocutory injunction: Director of Public Prosecutions (NT) v Dickfoss [2011] NTSC 4; 28 NTLR 71 at [46]. However, the DPP noted that proceedings brought pursuant to the COCA Act are unique to injunctions as they do not require the Director to establish the strength of its case for the future forfeiture or civil orders that will be made and no return date is set for parties to be heard in respect of the restraining order.
The DPP’s submissions also addressed the nature of “restricted access proceedings” within the meaning of the COCA Act. It was noted that a confiscation proceeding for restraining order is a restricted access proceeding as defined by s 243(1) of the COCA Act. No order of the Court is required for a confiscation proceeding to be a restricted access proceeding and the proceeding is a restricted access proceeding by reason of it falling within one of the categories of s 243(1): Director of Public Prosecutions (ACT) v Xuan [2019] ACTSC 164; 343 FLR 277 (Director of Public Prosecutions (ACT) v Xuan) at [6].
Where the Director brings a restricted access proceeding for a restraining order, the DPP may do so without notice to the person/s whose property the order seeks to restrain: s 243(2) of the COCA Act. Where the Director brings a restraining order application without notice, the DPP is the only party to the application: s 243(3) of the COCA Act.
The DPP highlighted that no order of the Court is necessary to bring the proceeding without notice as the COCA Act gives that discretion to the applicant of the restricted access proceeding, being the Director. The only order of the Court that is given under s 243, is for the mandatory closing of the Court under subsection (5) if sought by the Director: Director of Public Prosecutions (ACT) v Xuan at [6]-[7].
The DPP noted that unless a person is given notice of the application for a restraining order, there is no testing of the evidence relied upon by the Director.
In addressing the submission of the applicant that there is no presumption that the affidavits relied on in a restricted access proceeding should not be subject to public scrutiny, the DPP noted that where an affidavit is read, in the sense that it is “deemed” to be read aloud: Australian Securities and Investment Commission v Cassimatis (No 4) [2015] FCA 465 at [9], in a restricted access proceeding in a closed court, the question arises as to whether that material has been “used” or “deployed” in open court such that the principle of open justice is engaged: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 (John Fairfax Publications Pty Ltd v Ryde Local Court) at [32], [65]-[68] applied in Seven Network Ltd v News Ltd(No 9) [2005] FCA 1394; 148 FCR 1 at [26] and Baptist Union of Queensland – Carinity v Roberts [2015] FCA 1068; 241 FCR 135 at [28]. The DPP submitted that the affidavits were not deployed in open court as discussed in John Fairfax Publications Pty Ltd v Ryde Local Court at [32] where Spigelman CJ observed:
I will consider further below the position with respect to access once material is deployed in open court. Subject to the provisions of a particular statutory regime, use in court will often be determinative when making a decision to grant the media access to documents so deployed.
The DPP submitted that the threshold issues in the application that qualify the grant of leave is whether the material had been deployed in open court and the nature of the proceedings in which the material has been used. It was submitted that as the Johnston affidavits had been relied on ex parte in closed court, the material had not been deployed in open court and the principle of open justice was therefore not engaged.
The DPP referred to the decision of Director of Public Prosecutions (ACT) v Tomas [2015] ACTSC 233; 298 FLR 413 (Director of Public Prosecutions (ACT) v Tomas) at [12] where it was observed that the COCA Act imposes a low threshold for the making of restraining orders. However, while the threshold for the making of a restraining order is low, the COCA Act imposes a series of detailed requirements in relation to the form of the application, the affidavit in support, and the order itself: Director of Public Prosecutions (ACT) v Tomas at [13]. Although the COCA Act prescribes detailed requirements in relation to restraining orders, the requirements do not require the Court to be satisfied of a nexus between the offence/s or alleged offence/s and the property sought to be restrained: Director of Public Prosecutions (ACT) v Close [2015] ACTSC 10; 293 FLR 133 at [29]. The DPP also noted that pursuant to ss 29(1)(b)(ii)(B) and 31(2)(b)(ii)(B), the Court must make a restraining order under the COCA Act in relation to a serious offence, even if the defendant will not be charged with the relevant serious offence.
The DPP’s submissions addressed the applicant’s submission that there is public interest in accessing material relied on in a restricted access proceeding in circumstances where the material has been served on the respondent to the application. The DPP noted that there is no positive obligation under the COCA Act for copies of affidavit material relied on in support of an application for restraining orders, to be provided to a defendant unless the Court orders the Director to do so: s 34(2) COCA Act. However, the DPP noted that as a model litigant, the Director does provide copies of the affidavit material to a defendant unless the provision of that material would affect the integrity of an investigation under the COCA Act.
The DPP acknowledged that it was open to the Director to seek an order pursuant to s 35 of the COCA Act prohibiting publication or disclosure of the Johnston affidavits and that the Director did not do so on 26 March 2021 nor on 10 May 2021.
The DPP confirmed it did not seek orders under s 35 of the COCA Act as a matter of course, taking into account the offence provisions for breach in s 36, in circumstances where:
(a) The hearing of the application for the orders were restricted access proceedings which occurred in closed court; and
(b) The DPP is in control of who is provided with the affidavit material relied on in support of the application.
The DPP further noted that the Director is the only party who may seek an order pursuant to s 35 of the COCA Act. It was submitted that a defendant the subject of a restraining order may be able to seek a similar order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), however a defendant may be doing so in circumstances where they were not present at the hearing of the application and would only be in possession of the affidavit material if the Director had provided them with a copy.
The DPP submitted that s 243 of the COCA Act served a dual purpose. The first purpose was to bring applications without putting a defendant on notice and thereby protecting assets from being dissipated or divested. The DPP submitted that s 243 also served a purpose of keeping proceedings brought pursuant to the COCA Act out of the public view because of their nature. The DPP emphasised that the closing of the court pursuant to s 243(5) of the COCA Act creates a different character to the proceeding and that the Director will seek the Court to be closed in a relevant proceeding to enhance the objects of the COCA Act.
The DPP referred to the applicant’s outline of examples in the second White affidavit of other jurisdictions where access has been granted to affidavit material under the Proceeds of Crime Act 2002 (Cth) (Proceeds of Crime Act) and the Confiscation Act 1997 (Vic) (Confiscation Act). The DPP noted that access to the documents in those matters was not opposed by the parties.
The DPP submitted that in deciding whether to grant leave under r 2903(2) of the Court Procedures Rules, regard must be had to the COCA Act and the DPP emphasised the following differences of the restraint regimes in the Proceeds of Crime Act and the Confiscation Act:
(a) Pursuant to ss 16(1), (2), (2A) and 19(1) of the Confiscation Act, a person must be convicted, charged or proposed to be charged with an offence.
(b) Pursuant to s 17 of the Confiscation Act, the decision to hear the application in the absence of the person affected is at the discretion of the Court.
(c) Pursuant to s 26(3), (4) and (5) of the Proceeds of Crime Act, whilst the application may be heard in the absence of the person affected by the order, the Court may direct the applicant to give notice of the application to a person or class of persons before finally determining the application.
(d) Pursuant to s 319A of the Proceeds of Crime Act, the decision to hold the proceedings in close court is at the discretion of the Court.
The DPP correctly submitted that in circumstances where the Director neither consents to nor opposes the relief sought by the application, the following matters are relevant about the public interest in reporting on civil confiscation proceedings:
(a) The public interest in ensuring the purposes of the COCA Act are protected.
(b) The interests of the defendant/s are relevant, in particular where the proceedings are interlocutory, and the defendant/s did not have the opportunity to test the evidence.
(c) A defendant’s right to a fair trial.
(d) Fair and accurate reporting does not always require access to Court documents and can be satisfied from a judgment.
The DPP accepted the submissions put forward by the applicant as to the ongoing media investigation and accepted that Mr McKenzie would report fairly as a decorated journalist and as The Age is a respected media outlet.
The DPP maintained that it neither consented to nor opposed the access of the affidavits but agreed that if access was granted to the Johnston affidavits, it ought to be in redacted form. The DPP noted that while the Commissioner of the AFP indicated it would not oppose access to the Johnston affidavits in redacted form, the Commissioner of the AFP nor any AFP police officer are not a party to the relevant proceeding.
Commissioner of the AFP Submissions
The submissions of the Commissioner of the AFP confirm that its position is set out in the open affidavit of Detective Superintendent Moller sworn on 15 November 2021. That is, that the Commissioner of the AFP would not object to the Court providing the applicant with redacted versions of the Johnston affidavits, with the proposed redactions explained in the open affidavit of Detective Superintendent Moller.
The Commissioner of the AFP neither objected to nor consented to the provision of the Johnston affidavits to the applicant and adopted a neutral position. However, it was noted that the Commissioner of the AFP had not identified public interest immunity concerns in respect of the contents of the Johnston affidavits, such that the Commissioner did not object to the release of those affidavits, subject to the proposed redactions set out in the confidential affidavits of Detective Superintendent Moller.
The Commissioner of the AFP wished to take a limited role in the application and therefore, its submissions were limited to the following two matters raised in the defendants’ submissions:
(a) The application of pt 12 and particularly s 192 of the COCA Act, made on the assumption by the defendants that pt 12 of the COCA Act applies to the Johnston affidavits; and
(b) What, if any, relevance there is to the current application that the Johnston affidavits may contain a compilation of information obtained under the Crimes Act.
The Commissioner of the AFP did not make submissions about the application of the principle of the open justice principle and how it ought to apply to a proceeding brought under the COCA Act that is defined as a “restricted access” proceeding pursuant to s 243. The Commissioner however referred the Court to the discussion of the open justice principle in the High Court decision of Hogan v Hinch [2011] HCA 4; 243 CLR 506 (Hogan v Hinch) at [20]-[22]. The Commissioner also referred the Court to the decision of Bell J in the Victorian Supreme Court in PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; 53 VR 45 (PQR v Secretary, Department of Justice and Regulation (No 1)) at [34]-[41] in relation to the summary of the key authorities in respect of the open justice principle summarised therein.
The Commissioner of the AFP referred to the second open affidavit of Detective Superintendent Moller, where it set out that the AFP had made enquiries about whether pt 12 of the COCA Act, specifically the “non-disclosable information orders” listed in s 191, were utilised by the AFP in conducting their investigations in relation to the defendants and whether any such information was then included in the Johnston affidavits. The Commissioner emphasised that Detective Superintendent Moller was able to confirm in his second open affidavit that there was no information contained in the Johnston affidavits that has arisen from any “non-disclosable information order” as defined in s 191 of the COCA Act. However, Detective Superintendent Moller did note that the first Johnston affidavit affirmed on 24 March 2021 contained one paragraph that the AFP sought to redact out of an abundance of caution as it refers to matters that may touch on pt 12 of the COCA Act.
In respect of the question of the application of pt 12 and s 192 of the COCA Act, the Commissioner of the AFP noted that s 192(1) of the COCA Act prevents the publishing or disclosure of the existence or operation of a “non-disclosable information order”. The Commissioner accepted that if s 192 of the COCA Act applied to the contents of the Johnston affidavits, those parts of the affidavits affected by s 192 may not be permitted to be disclosed to a media agency, including the applicant. The Commissioner noted that there is no exception in s 192 permitting publication or disclosure to a media agency, noting that s 192(3) appears to only permit publication or disclosure to certain prescribed persons. The Commissioner maintained that the there is no information in the Johnston affidavits that would meet the definition of a “non-disclosable information order” in s 191 of the COCA Act. It was submitted that s 192 of the COCA Act was not relevant to the present application. The Commissioner of the AFP was able to positively submit that the assumption made by the defendants that there may be information that amounts to a “non-disclosable information order” in the Johnston affidavits was incorrect.
The Commissioner of the AFP also addressed the impact of the Crimes Act on the application in its submissions. The Commissioner noted that the second open affidavit of Detective Superintendent Moller confirmed that the majority of the information contained in the Johnston affidavits arose from the execution of search warrants pursuant to div 10.2 of the Crimes Act. The Commissioner confirmed in submissions that this was intended to read pt 10, div 10.3 of the Crimes Act.
The Commissioner noted that pt 10, div 10.3 of the Crimes Act relates to, amongst other matters, when a search warrant can be issued, what is authorised by a search warrant, the execution of a search warrant, the powers available to police officers when executing search warrants and matters relating to the seizure of material pursuant ot a warrant. Other than s 194(6)(a)(iii) of the Crimes Act, which refers to “target material or tainted material” relevant to the COCA Act, it was submitted that there is nothing contained in pt 10, div 10.3 of the Crimes Act that in turn refers back to the COCA Act as submitted by the defendants.
The Commissioner of the AFP further highlighted that there is no provision in the Crimes Act that prevents disclosure of information where a search warrant has been lawfully sought and executed under the Crimes Act. It was noted that the only disclosure prohibition contained in the Crimes Act is s 153, which appears to be a “catch all” section to prevent officers of the Territory from disclosing or communicating information they have obtained through their officer function without lawful authority or authorisation. It was submitted that s 153 of the Crimes Act would not apply to a situation where an officer of the AFP is providing information lawfully for the purpose of proceeds of crime and confiscation proceedings. The Commissioner noted that there is no provision in the Crimes Act akin to s 192 of the COCA Act.
The Commissioner of the AFP submitted that the mere fact that information in the Johnston affidavits has been obtained pursuant to lawful search warrants under the Crimes Act, does not have any bearing on the Court’s discretion to grant or not grant the application brought by the applicant. The Commissioner of the AFP submitted that the defendants’ submissions as to pt 12 and s 192 of the COCA Act and the Crimes Act did not assist the Court in determining the applicant’s application.
In oral submissions, counsel for the Commissioner of the AFP indicated that where the AFP has concluded financial investigations, information sharing occurs with government institutions such as the Australian Taxation Office, AUSTRAC or Centrelink. The Commissioner of the AFP confirmed that the AFP had engaged in information sharing with the Australian Taxation Office and Centrelink. It was noted that the AFP were not aware of any investigations that were underway by those agencies.
Consideration
As stated by French CJ in Hogan v Hinch, the application of the open justice principle may have limitations at [21]-[22]:
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could “cause an entire destruction of the whole matter in dispute”. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer’s victim, called as a prosecution witness, may be suppressed because of the “keen public interest in getting blackmailers convicted and sentenced” and the difficulties that may be encountered in getting complainants to come forward “unless they are given this kind of protection”. So too, in particular circumstances, may the name of a police informant or the identify of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. …
It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
(citations omitted)
Similar observations were made in PQR v Secretary, Department of Justice and Regulation (No 1) at [34]-[41]. In The Herald and Weekly Times Pty Ltd v A [2005] VSCA 189; 160 A Crim R 299 at [34], Maxwell P and Nettle JA spoke of the need to balance “the interests of society in ensuring that the accused receives a fair trial against the competing interests of society in the freedom of expression”. In Nationwide News Pty Ltd v Farquharson [2010] VSCA 131; 28 VR 473 at [19], Nettle JA said, in a similar context, that whether to make an order depended upon a “fact/value assessment”. See also PQR v Secretary, Department of Justice and Regulation (No 1) at [42].
The principle of open justice is relevant where a party seeks leave under r 2903(2) to access material relied upon by a Judge. The principle of open justice must guide the courts in deciding whether to grant the media access to court records and exhibits: Re Fairfax Media Publications Pty Ltd at [15]; see also R v Jovanovic at [18]-[26].
Nevertheless, the principle of open justice is a principle, not a freestanding right, and there is no common law right for a non-party to obtain access to a document filed in proceedings and held as a part of the Court record: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [29]-[31].
There is a requirement that the judicial process be open to public scrutiny, but only to the extent necessary for the public to scrutinise the judicial process itself: Re Fairfax Media Publications Pty Ltd at [16].
There is no single test applicable in all situations to identify when a document has been put before a court in such a matter that it ought be made public: John Fairfax Publications Pty Ltd v Ryde Local Court at [68].
The principle needs to be balanced against other principles of justice which protect the interests of the parties to the litigation: Re Fairfax Media Publications Pty Ltd at [16]; John Fairfax Publications Pty Ltd v District Court (NSW) at [29]-[31] (Spigelman CJ).
The principle must give way or accept modification to ensure that the proceedings are conducted in a manner which serves the overall interests of society: R v Scerba [2015] ACTSC 176; 299 FLR 221 at [9]. Further, there is a public interest in ensuring the purposes of the COCA Act are protected.
The interests of the defendants are clearly relevant and important: Re Fairfax Media Publications Pty Ltd at [16]. Especially where the proceedings are interlocutory, and the defendants have not had the opportunity to test the evidence.
A defendant’s right to a fair trial in any future criminal proceeding is a central consideration: R v Glennon at 623, particularly noting the material that can be put before the Court on a confiscation proceeding pursuant to s 248 of the COCA Act.
Fair and accurate reporting does not always require access to Court documents and can be satisfied from the judgment or a transcript of reasons given in the confiscation proceeding: Re Fairfax Media Publications Pty Ltd at [21]. I interpolate to note that there is no judgment in this case in respect of the restraining orders.
The primary concern of the defendants in opposing disclosure of the Johnston affidavits is the possibility of prejudice to any future criminal proceedings. It must be said that there is no evidence of any criminal proceedings on foot.
Correspondence is noted from the Deputy Director of the DPP, Mr Anthony Williamson, who is also the Chief Crown Prosecutor for the ACT, who has confirmed that the Territory will not pursue any of the defendants for the alleged offences the subject of the COCA Act proceeding. This development does not support the defendants’ submission as to prejudice to future criminal proceedings. The applicant further submitted that it was for the defendants to particularise how such prejudice would manifest from the applicant inspecting the Johnston affidavits. It was further correctly submitted that members of the public understand the difference between allegations made in court and findings made by courts.
The Court proceeds on the basis that the applicant will use the affidavits to produce an accurate report, including by noting the nature of the Johnston affidavits and the proceeding to which they relate: R v Jovanovic at [53]; Australian Securities & Investments Commission v Rich at [39]-[40].
The defendants have not identified the basis upon it is asserted that s 192 of the COCA Act is, or might be, engaged. Section 192 of the COCA Act is not relevant to this application. Additionally, I note that the Commissioner of the AFP has taken a cautious approach to the disclosure of information in the Johnston affidavits, including by making redactions based on statutory secrecy provisions.
It is important to note in this context the Explanatory Statement to the Confiscation of Criminal Assets Bill 2002 (ACT) which states that the purpose of the section now referred as s 243 of the COCA Act is as follows:
The purpose of this clause is to ensure that the objectives of these orders are not frustrated by giving offenders premature warning of impending action to restrain and confiscate their property, thereby giving them time to destroy or conceal relevant information or property.
The objective of the restraining orders has now been carried out.
While the DPP neither consents nor opposes the applicant’s application, the DPP had submitted that “the question arises” as to whether the Johnston affidavits had been “used” or “deployed” in open court such that the principle of open justice is engaged. While the Johnston affidavits have not been used or deployed in open court such that the principle of open justice is not thereby necessarily engaged, this does not of itself determine the matter. The case must be determined on the particular facts of the case before me.
The applicant submitted that the proposition that untested allegations are somehow to be shielded from public view merely because they are untested allegations, and could only possibly be properly understood in the context of a fully contested hearing, does not sit with the principle of open justice or the right of anyone fairly to report proceedings in a court of justice: Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293 at [27]; Bolitho v Banksia Securities Ltd (No 9) [2020] VSC 309 at [28]. The applicant submitted that untested allegations regularly form part of fair and accurate court reports, where they are described as being simply that: untested allegations.
In Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756, Snaden J granted access to documents filed in a proceeding which was discontinued before the originating documents were served.
In Australian Securities & Investments Commission v Rich, Austin J granted access to affidavits relied on by the plaintiff on an ex parte application seeking interim orders restraining some of the defendants from dealing with their assets and from leaving the country. On the return date of the originating process, undertakings were given by some defendants and the proceedings were dismissed by consent. Austin J dealt with an argument about untested allegations, which his Honour referred to as “prematurity” and dismissed the argument opposing leave at [25]. Austin J held at [26] that there must be some specific or obvious prejudice for a Court to refuse access to affidavits relied upon at an ex parte hearing which results in the Court granting significant relief and that “the basis for the marking of [ex parte] orders must be available so that the court is accountable for what it has done after it has considered the information provided to it” (emphasis added).
In ACCC v ABB Transmission and Distribution Ltd (No 3), access was granted to statements of agreed facts and outlines of submission, Finkelstein J observed at [7]:
The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. … the position is a fortiori when the material has been read by the judge in private and is not read in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position.
(emphasis added)
The course adopted by Lonergan J in Re Fairfax Media Publications Pty Ltd, where access was allowed to the judgment but not to the sought affidavits was based on the potential for future criminal proceedings. The present application is distinguishable from Re Fairfax Media Publications Pty Ltd. There the NSW Crimes Commission objected to the release of the sought material, given the potential for such material to interfere with future criminal proceedings. In the present application, that was not a position adopted by the DPP nor the Commissioner of the AFP. The Commissioner of the AFP does not object to the release of the Johnston affidavits, if redacted in accordance with the proposed redactions. I note the undertaking of the ACT DPP to not prosecute any of the defendants and I further note that the defendants have merely pointed to the theoretical possibility of prosecutions elsewhere without specifically identifying or developing the prejudice in that regard.
I have considered all relevant matters as discussed above, including the particular nature of COCA Act proceedings as was underlined by the DPP to be “unique”. In light of the foregoing reasons, I consider that leave ought to be granted to the applicant.
In accordance with the authorities discussed above, I consider that any redactions made ought to be the minimum necessary in the circumstances of this case.
As set out at [50]-[51], the defendants submitted in the alternative should the Court conclude a redacted version can be released that “in short, the only person who is suspected of committing an offence is Vivian Shui. Otherwise mention of all other defendants should be redacted”. I propose to redact the names of all other defendants, except of the sixth defendant as the sixth defendant is a company owned by the first defendant. The first defendant is the sole director, shareholder, and secretary of the sixth defendant.
Orders
In respect of the application, I confirm the following order:
1. The applicant is granted leave to inspect and uplift the affidavit of James Johnston affirmed 24 March 2021 as set out in redacted form in the second confidential affidavit of Scott Moller sworn 25 November 2021 as annexed therein as “SJM-5” and the affidavit of James Johnston affirmed 5 May 2021 as set out in redacted form in the first confidential affidavit of Scott Moller sworn 15 November 2021 as annexed therein as “SJM-3”, with two further redactions: the full and/or partial names of the second defendant and the third defendant in the affidavit of James Johnston affirmed 24 March 2021.
| I certify that the preceding one hundred and twelve [112] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 29 September 2022 |
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