R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan; R v Jacobs Group (Australia) Pty Ltd (No 2)

[2021] NSWSC 1084

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan; R v Jacobs Group (Australia) Pty Ltd (No 2) [2021] NSWSC 1084

Hearing dates:

On the papers

Decision date:

26 August 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Direct the parties to agree, if possible, on a redacted version of the remarks on sentence in respect of Jacobs Australia (the Redacted Reasons), for the purposes of the proposed variation to the non-publication orders set out in these reasons.

(2)   Direct the parties to provide to my Associate an agreed form of the Redacted Reasons and draft short minutes or order, or, in the absence of agreement, competing versions, by 3 September 2021, with a view to the orders being made in chambers.

(3)   Otherwise dismiss the Crown’s amended notice of motion dated 12 August 2021.

(4)   Grant liberty to the parties to restore the matter on 3 days’ notice.

Catchwords:

CIVIL PROCEDURE — Suppression and non-publication — Variation of orders — Necessary to protect administration of justice and consider needs of open justice — exemption from prohibition proposed by Crown too wide — narrower exemption authorised subject to agreement as to redacted version of sentencing judgment of corporate offender

Legislation Cited:

Court Suppression and Non-Publications Orders Act 2010 (NSW), s 13

Criminal Code Act 1995 (Cth), s 70.2

Cases Cited:

Decision restricted [2021] NSWSC 534

Decision restricted [2021] NSWSC 657

Texts Cited:

Commonwealth Director of Public Prosecutions, Best Practice Guidelines: Self-reporting of foreign bribery and related offending by corporations (20 December 2017)

Category:

Procedural rulings

Parties:

Proceedings 2018/150442
Regina
Paul Peter Dougas (Accused)

Proceedings 2018/150387
Regina
Mark Andrew Read (Accused)

Proceedings 2018/150400
Regina
Geoffrey Kym Linke (Accused)

Proceedings 2018/150467
Regina
Paul Joseph Casamento (Accused)

Proceedings 2018/221995
Regina
Andrew William John Counihan (Accused)

Proceedings 2018/154158
Regina
Jacobs Group (Australia) Pty Ltd ACN 001 024 095 (Offender)

Representation:

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Arnold Bloch Leibler (Paul Peter Dougas)
Stary Norton Halphen (Mark Andrew Read)
Logie-Smith Lanyon Lawyers (Geoffrey Kym Linke)
Johnson Winter & Slattery (Paul Joseph Casamento)
Holding Redlich (Andrew William John Counihan)
Jones Day (Jacobs Group (Australia) Pty Ltd)

File Number(s):

2018/150442; 2018/150400; 2018/150387; 2018/150467; 2018/221995; 2018/154150

Judgment

1. On 14 May 2021, I made orders under the Court Suppression and Non-Publications Orders Act 2010 (NSW) (the Act) and gave reasons for my orders: Decision restricted [2021] NSWSC 534.

2. My orders included the following:

“(1) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), prohibit the publication of any material containing any reference to any of the following:

(a)   the pleas of guilty entered by Jacobs Group (Australia) Pty Ltd ACN 001 024 095 (Jacobs Australia) to charges of conspiring to cause offer of bribe to foreign public officials;

(b)   any statement of facts relevant to the offences to which Jacobs Australia pleaded guilty to;

(c)   the sentence hearing in respect of Jacobs Australia;

(d)   the sentence imposed on Jacobs Australia;

(e)   the sentencing remarks in relation to the sentence imposed on Jacobs Australia; and

(f)   this application.

…

(4)   Order (1) is made on the ground in s 8(1)(a) of the Act, namely that it is necessary to prevent prejudice to the proper administration of justice.

(5)   Pursuant to s 11(2) of the Act, these orders are to apply throughout the Commonwealth of Australia.

(6)   Order (1) is to operate until the earlier of either:

(a)   the determination of the criminal proceedings 2018/150442 against Paul Dougas; 2018/150387 against Mark Read; 2018/150400 against Geoffrey Linke; 2018/150467 against Paul Casamento and 2018/221995 against Andrew Counihan; or

(b)   further order.”

3. Order (2) permitted disclosure to those involved in the proceedings. Order (3) permitted disclosure to those with a commercial or regulatory interest in the material.

4. On 9 June 2021, after the orders referred to above were made, I imposed a sentence on Jacobs Group (Australia) Pty Ltd (the corporate offender) and gave reasons for sentence: Decision restricted [2021] NSWSC 657 (the Reasons). An unredacted version of the Reasons was provided to the Crown, the corporate offender and each of the accused persons: Mark Read, Geoffrey Linke, Paul Dougas, Paul Casamento and Andrew Counihan. A restricted version of the Reasons, which comprised the Medium Neutral Citation and the catchwords, was posted on Caselaw, as follows:

“Decision restricted

Medium Neutral Citation: [2021] NSWSC 657

Decision date:         09 June 2021

Jurisdiction:         Common Law

Before:            Adamson J

Catchwords:

CRIMINAL PROCEDURE — Sentence proceedings — Reasons for sentence — Pronouncement of sentence

SENTENCING — Federal offences — Three offences of conspiracy to cause an offer of a bribe to a foreign official contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) — Relevant factors on sentence — Objectively serious and within the mid-range — Damage caused by corruption of public officials — Past and future assistance given by the company to authorities — Need for general and specific deterrence — General deterrence achieved by rewarding a self-reporting company who assists investigating and prosecuting authorities — The company’s self-reporting and its response to the offending suggests remorse and contrition, and a desire to set about its own rehabilitation — Consideration of delay

SENTENCING — Penalty for body corporate — Determination of the maximum penalty — The meaning of ‘benefit’ in s 70.2(5)(b) of the Criminal Code Act 1995 (Cth) — Consistent with the legislative intention, benefit means net benefit — Discount for guilty plea, past assistance and an undertaking to provide future assistance.”

5. On 17 June 2021, I varied order (2)(a) to permit access to be granted to the Commonwealth’s legal representatives, intergovernmental agencies and State, Territory and Government agencies.

6. By email to my Associate dated 1 July 2021, Emily McLennan, a solicitor at Allens Linklaters, requested access to the Reasons. The basis for her request was, as stated in her email:

“We [Allens Linklaters] provide advice to a number of companies in relation to proceeds of crime applications proposed by the Australian Federal Police.”

7. Ms McLennan offered to give undertakings not to publish any material containing reference to the matters covered by the non-publication orders.

8. By amended notice of motion dated 12 August 2021, the Crown seeks that further exceptions to order (1) be made. The effect of the proposed further variation would be to permit the Commonwealth Director of Public Prosecutions (the CDPP), the Australian Federal Police (the AFP) or any legal representative, or employee, of the Commonwealth to provide a copy of the Reasons to “lawyers representing corporations investigated or prosecuted by a Commonwealth agency”. Further, the Crown does not oppose access to the Reasons being granted to Ms McLennan.

9. The Crown’s application is supported by an affidavit of Geoffrey Turner, Federal Agent, Commander Crime, sworn 16 August 2021 and an affidavit of Hannah Amelia Iris White, a Federal Prosecutor at the CDPP, affirmed 17 August 2021. Federal Agent Turner has responsibility for overseeing Australia’s foreign bribery enforcement strategy. He deposed that the AFP has a number of ongoing foreign bribery investigations that relate to Australian corporations and that, “in many cases there is ongoing engagement with legal and financial representatives of those corporations”. These representatives include Deloitte, Allens Linklaters, Clayton Utz and Arnold Block Leibler. The AFP also expects some corporations to self-report, in accordance with the CDPP’s Best Practice Guidelines: Self-reporting of foreign bribery and related offending by corporations (20 December 2017). Federal Agent Turner deposed that it would assist the AFP’s ongoing engagement with such representatives if it could give those representatives access to the Reasons. Ms White’s evidence is to similar effect although she also deposed that the Reasons might also be useful with respect to other Commonwealth offences which carry similar maximum penalties to the one I considered in the Reasons (with respect to s 70.2(5) of the Criminal Code Act 1995 (Cth) (Criminal Code)). Both deponents undertake to provide a copy of my non-publication orders to any recipient of the Reasons.

The facts

10. The position of each accused person and the corporate offender with respect to the Crown’s application is as follows.

11. Neither the corporate offender, nor Mr Casamento, nor Mr Read, wished to be heard against the Crown’s application.

12. Mr Livermore QC and Ms Anniwell submitted on behalf of Mr Counihan that the proposed “carve-out” (“lawyers representing corporations investigated or prosecuted by a Commonwealth agency”) in the amended notice of motion was too broad; that it was not warranted; and that, if ordered, there was a risk that the efficacy of the non-publication orders would be undermined. They indicated that they would consent to publication of the Reasons in a form whereby the names of the accused, the co-accused and the company were anonymised and any other parts of the Reasons which would otherwise identify those parties were redacted. They also sought a further requirement that any lawyers to whom the redacted Reasons were provided would need to be identified and would need to fulfil the requirement that they were briefed or retained in matters concerning corporations investigated or prosecuted for foreign bribery offences.

13. It was further submitted on behalf of Mr Counihan that the circumstances, which included Ms McLennan’s request, did not constitute a change in circumstances which would warrant a review of the non-publication orders pursuant to s 13 of the Act.

14. Mr Pararajasingham submitted on behalf of Mr Dougas that the Crown’s application ought be dismissed. He adopted the submissions made on behalf of Mr Counihan. Mr Linke opposed the Crown’s application for the Reasons to be provided to the expanded categories of people set out in the amended notice of motion and adopted the submissions made on behalf of Mr Counihan and Mr Dougas.

15. In response, the Crown opposed the compromise position proposed on behalf of Mr Counihan in the following terms:

“The provision of the judgment to various legal representatives would not give rise to any negative publicity that would prejudice any trial of the accused, noting that the legal representatives from the relevant law firms will be provided with a copy of the non-publication orders.”

16. Further, the Crown submitted, without elaboration, that the anonymisation of the Reasons was “unnecessary”.

Consideration

17. It is the responsibility of the sentencing judge to set out the findings of fact in order that the basis of the sentence imposed is clear. These findings of fact were largely agreed but were relatively detailed because of the sophistication of the transactions involved. The location and nature of the business conducted by the corporate offender might be sufficient to identify the company and, by implication, its officers. Thus, publication of the redacted Reasons still has the potential to put the trial at risk.

18. I set out the basis for the non-publication orders made at [59] of my reasons as follows:

“… The publication of the detail of the narrative in the statement of agreed facts would be prejudicial to the applicants if it became known to potential jurors who may be unable to discern that it represents a negotiated agreement about the narrative rather than a statement of the truth, and may be unable to appreciate that the [corporate offender] cannot make admissions which are binding, or which implicate, the natural persons through whom it acts and with whom it deals. It is this particular aspect of the present case which gives rise to the prejudice for which, in my view, a non-publication order is necessary to prevent. It is also necessary to prohibit publication of the [corporate offender’s] plea, the sentencing proceedings, the sentencing remarks and the sentence ultimately imposed on the Company to prevent prejudice to the administration of justice.”

19. In substance, as my reasons for making the orders on 14 May 2021 indicate, I decided that it was necessary to protect the administration of justice to make the orders since the corporate offender had pleaded guilty to offences based on the actions of individuals who were entitled to the presumption of innocence. If publication of the matters referred to in the order was allowed, there was a potential for the publication to prejudice the trials of the individual accused which are listed for hearing in early 2022. For this reason, I ensured that, only a restricted judgment was published on Caselaw (in the form extracted above).

20. The Crown has failed to engage with the proposition advanced on behalf of Mr Counihan that there is no need for advisers or representatives of other clients to know the name of the corporate offender or the individuals through whom it acted, some of whom stand charged and are to be tried next year. It is difficult to see how the advice given by the representatives of those charged with foreign bribery or those who are being investigated for that offence would be improved by knowledge of the names of the accused or the corporate offender. For example, it is common for the names of sex offenders to be anonymised in published judgments to protect the identity of the complainants. In this way, the judgments can still serve the purposes of general deterrence and education, while ensuring that the inroad into the principles of open justice is relatively slight.

21. However, there is a relevant difference between sex offences and foreign bribery offences. Because sexual abuse is so clichéd, and can only be performed in certain ways, anonymisation of the names of perpetrators and victims is usually sufficient to protect the identity of the victims. By contrast, the circumstances of the offending in the present case (which include location and the contracts for which the corporate offender was submitting tenders) has the potential to implicate the individual accused, even if their names and the name of the corporate offender are redacted.

22. Further, insofar as there may be interest in the meaning of “benefit” in s 70.2(5) of the Criminal Code (which I note is the subject of ground 1 of the Crown appeal against the sentence imposed on the corporate offender), this interest need not extend to the name of the corporate offender or the names of individual accused.

23. As I endeavoured to explain in my reasons for making the non-publication orders, I am concerned about protecting the fairness of the trials of the accused. I accepted the arguments raised on behalf of the accused that disclosure of the Reasons and associated documents posed a very substantial risk to the fair trial of the accused. Jurors could not be expected to appreciate that an admission by a corporation that its conduct through a human agent, does not incriminate the human agent. Thus, publication of the Reasons in a manner which could reach potential jurors could be highly prejudicial.

24. I accept Mr Livermore’s submissions that the categories proposed by the Crown are far too broad to be helpful. The evidence adduced by the Crown does not indicate how many people would fall into the categories proposed. Further, I would resist the suggestion that it was appropriate to have a group of persons who are entitled to be “in the know” as to the identity of the corporate offender and the accused when there is no particular reason why they ought to know in advance of the final determination of the trials of the individual accused. Once these have concluded, the Reasons in their unredacted form can be published without restriction, having regard to the duration of the non-publication orders.

25. The safeguard proposed by the Crown, that the CDPP undertakes to provide a copy of any non-publication order when furnishing a copy of the Reasons to the relevant legal representatives “in order to ensure that the sentencing remarks are not further disseminated or published to the public or a section of the public”, is inadequate. The only reason the legal representatives will want to have access to the Reasons (apart from continuing legal education) is to provide advice to clients. Once the advice is provided to the clients of the legal representatives in a way which discloses the Reasons, the purpose of the non-publication order is potentially thwarted.

26. The Crown has proposed limitations such that an exception to the prohibition in order (1) of the non-publication orders would apply only to legal representatives of particular firms. There is no principled reason why the exception ought be limited in this way and no basis for conferring what might be regarded as a competitive advantage on particular firms. Further, as the present case indicates, there is significant potential for conflict between corporations and their associates or employees, which would necessitate separate representation of each person, whether corporate or natural, involved in the alleged offending. For this reason, I propose to limit the legal representatives who can have access to the Reasons to those who have been instructed or retained by persons who have been charged with foreign bribery offences or who are the subject of investigation for such offences, without reference to the firms with which such legal representatives are associated.

Conclusion

27. For the reasons given above, I am not persuaded that it is appropriate to amend the non-publication order as proposed by the Crown. I accept the submissions made on behalf of Mr Counihan (which were adopted by Mr Dougas and Mr Linke). I consider that the amendment proposed by Mr Livermore and Ms Anniwell, modified as set out below, will serve the needs of open justice and protect the administration of justice and, most importantly and relevantly, protect the rights of the accused persons to a fair trial.

28. The orders which I propose are as follows:

1. Vary the orders made on 14 May 2021 and varied on 17 June 2021 by adding the following subparagraph:

(3A)   Order (1) does not prevent publication of the sentence imposed on Jacobs Australia or a redacted version of the sentencing remarks in relation to the sentence imposed on Jacobs Australia:

(a) subject to (b) below, to legal representatives retained or briefed by natural or corporate persons who are currently being investigated or prosecuted for an offence or offences of foreign bribery under s 70.2 of the Criminal Code Act 1995 (Cth) (foreign bribery offence);

(b)   prior to any publication to legal representatives referred to in (a), each representative must provide to the Crown:

(i)    his or her name and contact details;

(ii)   the name of the client who is being investigated or charged with a foreign bribery offence; and

(iii)   a written acknowledgment that he or she has been provided with a copy of the non-publication orders made in this matter.

29. I will leave it to the opponents to the Crown’s amended notice of motion (Mr Counihan, Mr Dougas and Mr Linke) to propose redactions to the Reasons. A draft redacted version can then be provided to the Crown and the other parties with a view to the parties agreeing on a redacted version for the purpose of my proposed orders. Once agreed, the agreed form redacted Reasons is to be provided my Associate with proposed short minutes of order, so that the orders can be made in chambers. If adjudication is required, the matter can be re-listed before me for that purpose.

Orders

30. For the reasons given above, I make the following orders:

1. Direct the parties to agree, if possible, on a redacted version of the remarks on sentence in respect of Jacobs Australia (the Redacted Reasons), for the purposes of the proposed variation to the non-publication orders set out in these reasons.

2. Direct the parties to provide to my Associate an agreed form of the Redacted Reasons and draft short minutes or order, or, in the absence of agreement, competing versions, by 3 September 2021, with a view to the orders being made in chambers.

3. Otherwise dismiss the Crown’s amended notice of motion dated 12 August 2021.

4. Grant liberty to the parties to restore the matter on 3 days’ notice.

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Decision last updated: 20 April 2022