R v Note Printing Australia Limited (Ruling No 2)
[2012] VSC 304
•17 July 2012
| IN THE SUPREME COURT OF VICTORIA | Unrestricted | |
AT MELBOURNE
CRIMINAL DIVISION
Nos. 0157, 0158 of 2011
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NOTE PRINTING AUSTRALIA LIMITED and SECURENCY INTERNATIONAL PTY LTD |
---
JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 26 April 2012 | |
DATE OF RULING: | 17 July 2012 | |
CASE MAY BE CITED AS: | R v Note Printing Australia Limited & Anor (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 304 | |
---
CRIMINAL LAW – Two corporate offenders pleaded guilty to foreign bribery offences – Trials of former employees yet to occur – Applications by individual co-accused for orders restricting the publication of the sentences and sentencing remarks until after their trials– Application by media for access to the plea brief – Public interest in open justice – Right to a fair trial – Prejudice to the administration of justice
---
APPEARANCES: | Counsel | Solicitors | |||
| For the Commonwealth Director of Public Prosecutions | Mr N Robinson SC Mr K Armstrong (26/4/12) | Commonwealth Director of Public Prosecutions | |||
| For the Commissioner of the Australian Federal Police and the Commonwealth of Australia | Mr P R D Gray SC Mr R Knowles (17/4/12) | Australian Government Solicitor | |||
For Note Printing Australia Limited | Mr J Williams (17/4/12) Ms C Cox (26/4/12) | Freehills | |||
For Securency International Pty Ltd | Dr R Higgins | Clifford Chance | |||
For Mitchell Anderson | Ms S Michel (17/4/12) | Logie Smith Lanyon | |||
For Christian Boillot | Mr A Chernok (17/4/12) | Doogue & O’Brien | |||
For Barry Brady | Mr M Cahill (17/4/12) | Hicks Oakley Chessell Williams | |||
For Myles Curtis | Mr T Hargreaves | Tony Hargreaves & Partners | |||
For Clifford Gerarthy | Mr C Fairfield | Andrew George Solicitors | |||
For John Leckenby | Mr C Thompson | Holding Redlich | |||
For Rognvald Marchant | Mr N Galantas (17/4/12) | GPZ Legal | |||
For The Age Co Ltd | Ms V Scott (17/4/12) Mr S O’Meara (26/4/12) Mr D Bongiorno (26/4/12) | Minter Ellison | |||
HER HONOUR:
Introduction
On 5 December 2011, Note Printing Australia Limited (“Note Printing”) and Securency International Pty Ltd (“Securency”) each pleaded guilty in this court to three charges of conspiring to bribe a foreign official, contrary to ss 11.5(1) and 70.2(1) of the Criminal Code 1995 (Cth).
A number of former employees of Note Printing and Securency (“the individual co-accused”) have also been charged with various criminal offences arising out of some of the same events; their cases have yet to come on for trial. At the end of the plea hearing, lawyers for some of the individual co-accused sought orders restricting the publication of any material containing any reference to the fact that Securency and Note Printing had pleaded guilty, or intended to plead guilty, to charges of conspiring to bribe foreign public officials (“the guilty plea facts”). Similar orders had previously been sought and obtained in the Magistrates’ Court.
On 5 December, I made orders which, in general terms:
(a) Permitted limited publication of the guilty plea facts to the parties (including the individual co-accused), and certain interested parties (such as various government bodies, related parties, financiers and the like);
(b) Otherwise, prohibited publication of the guilty plea facts; and
(c) Restricted access to the plea materials, including the submissions, exhibits, other plea brief materials and transcript, to named categories of persons,
until further order (“the 5 December orders”).
The 5 December orders were made pursuant to ss 18(1)(c) and 19(b) of the Supreme Court Act 1986 (Vic), to ensure that the individual co-accused would be able to receive a fair trial. I formed the opinion that it was necessary to do so in order not to prejudice the administration of justice in that regard.
Although the DPP did not support the making of most of the 5 December orders, there was no substantial opposition to their being made that day.
Shortly prior to the plea hearing, the court had received notice that the Commissioner of the Australian Federal Police (“the AFP”) and the Commonwealth of Australia wished to seek orders restricting the publication or release of certain information contained in the plea brief and the statement of agreed facts, on the basis of public interest immunity. I deferred the hearing of those applications, and proceeded to hear the plea. At the end of the plea hearing, I indicated that I would hear the public interest immunity applications prior to publishing my sentencing remarks.
When the court contacted the interested parties to fix a date for hearing the public interest immunity applications, it became apparent that:
(a) The Commonwealth applicants wished to file further material in support of their applications;
(b) Securency and Note Printing sought to have minor amendments made to the 5 December orders, to enable them to disclose relevant material to additional persons;[1]
(c) Some of the individual co-accused wished to apply to extend the terms of the 5 December orders;[2] and
(d) The publisher of The Age newspaper (“The Age”) wished to oppose the proposed extension, and have some of the 5 December orders varied.
[1]The additional persons were their tax advisers and the Australian Securities & Investment Commission.
[2]Although some of the individual co-accused argued that what they were seeking was already covered by the 5 December orders, I concluded that they were in fact seeking an extension to those orders.
Accordingly, I set various timetables, to enable interested persons to file and serve affidavits and submissions.
By either written or oral applications, seven of the individual co-accused seek to restrict the publication of any material containing any reference to the plea hearing on 5 December, the sentences handed down to Securency and Note Printing, and my sentencing remarks. The DPP and The Age both oppose any such extension to the non-publication orders.
The Age seeks to have paragraphs 5 and 6 of the 5 December orders varied, so as to enable it to have access to the redacted statement of agreed facts relied upon during the plea hearing.[3]
[3]The Age only seeks access to the redacted version of the statement of agreed facts, from which material has been removed on the public interest immunity grounds relied upon by the AFP and Commonwealth.
During April 2012, I heard argument in relation to the public interest immunity applications and the various applications concerning the 5 December orders. On 17 April 2012, I made the minor amendments to the 5 December orders sought by Securency and Note Printing, as there was no opposition to them. I otherwise reserved my decisions.
I propose to publish my sentencing remarks[4] and reasons for decision on the public interest immunity applications[5] at the same time as these reasons for decision.
[4]R v Note Printing Australia Limited & Anor (Sentence) [2012] VSC 302R.
[5]R v Note Printing Australia Limited & Anor (Ruling No 1) [2012] VSC 303R.
Relevant events
The foreign bribery provision came into effect on 17 December 1999. The charges laid against the two companies and their former officers are the first prosecutions brought under that provision. That has several relevant consequences, which will be considered later in these reasons.
It seems that the offending conduct was first uncovered as a result of some investigative journalism by reporters from The Age. The AFP only began investigations after the newspaper brought the matter to the attention of the Securency board around May 2009, and the board notified the AFP.
The charges were laid against Securency, Note Printing and the individual co-accused in or around late June 2011.
In August 2011, non-publication orders were made in the Magistrates’ Court, under ss 126(1)(b) and (2)(d) of the Magistrates’ Court Act 1989 (Vic). The orders were varied in October and November 2011. In general terms, they restrict the publication of the guilty plea facts until the determination of the committal proceedings. Publication of those matters, and access to the plea brief materials, is only permitted to certain restricted categories of persons.
On 27 October 2011, Securency and Note Printing entered their pleas of guilty in the Magistrates’ Court.
On 8 November 2011, The Age applied to have the Magistrates’ Court non-publication orders revoked, and sought access to the Securency and Note Printing plea briefs; those applications were refused.[6]
[6]Although the DPP had also indicated an intention to apply to revoke the Magistrates’ Court non-publication orders, that application was not ultimately pressed.
The Commonwealth issued proceedings in the County Court of Victoria, seeking pecuniary penalty orders against Securency and Note Printing arising out of the foreign bribery charges, pursuant to s 116 of the Proceeds of Crime Act 2002 (Cth).
On 15 November 2011, his Honour Judge Parsons made orders, under s 80(1)(c) of the County Court Act 1958 (Vic), restricting the publication of the fact that the companies were making pecuniary penalty payments. The orders were expressed to have effect until all current criminal proceedings against the individual co-accused in the Magistrates’ Court have been heard and determined.
The committal hearing for the individual co-accused has been fixed to commence in August 2012, and is likely to last for about three months.
The individual co-accused have indicated their intention to contest the charges.
If some of the individual co-accused are committed to stand trial, their trials would be likely to commence in this court during 2013, although there is some possibility that they may not commence until early 2014.[7]
[7]Affidavits filed on behalf of the DPP and The Age refer to enquiries made by them of a criminal listings officer. Such general enquiries are, quite understandably, usually met with a cautious or conservative estimate. From my own knowledge and enquiries, I am satisfied that there is every prospect that these trials would take place during 2013, as long as the committal hearings are completed this year.
The areas in dispute
Further non-publication orders
Neither the DPP nor The Age seeks to persuade the court to lift the current prohibition on the publication of the guilty plea facts.
However, they both oppose the making of orders prohibiting the publication of any material containing any reference to the plea hearing, the sentence and the sentencing remarks (“the proposed further non-publication orders”).
The individual co-accused are concerned that their rights to a fair trial before an impartial jury will be prejudiced if the proposed further non-publication orders are not made.
They say that because of the high profile nature of the case (including their relationship with the Reserve Bank), the international and interstate attention it has already attracted, and the novelty of the foreign bribery provision and these prosecutions, there is no real prospect that any damage caused by prejudicial publicity will have dissipated in the time before their trials might reasonably be expected to occur.
The DPP and The Age say that, because of the likely time between sentencing and any trial, the risk of prejudice to the individual co-accused is more theoretical than real. Further, they say that any prejudicial pre-trial publicity to potential jurors can be adequately dealt with by way of appropriate jury selection and directions.
Apart from the general public interest in having fair and accurate reporting of the decisions of courts, the DPP says there is a particular public interest in publishing the sentences for the first prosecutions for serious and novel criminal offending. It is said that the publication of such sentences will have both educative and general deterrence effects.
Access to documents
The 5 December orders included the following restrictions on access to documents:
(a) Access to the submissions and exhibits, the other plea brief materials, and the transcript of the plea hearing, be limited to the parties (and their related entities, advisers and investors), the Commonwealth, and the individual co-accused (order 5);
(b) Notwithstanding the above, in relation to the part of the statement of agreed facts and supporting documents which relate to Nepal (“the Nepalese materials”), access be limited to the parties, the Reserve Bank, the Commonwealth, and their legal representatives (order 6).
The tighter restriction in relation to the Nepalese materials was placed on the application of the Commonwealth. At this stage, no charges have been laid against any of the individual co-accused in relation to the Nepalese conspiracy. That position may change, as a result of further investigations.
The Age seeks to have those orders varied, so as to enable it to have access to the statement of agreed facts. It says that such access is a necessary incidence of the principle of open justice.
The individual co-accused oppose any such access being granted.
What is not in dispute
There has already been considerable media interest in the matters the subject of the charges.
Not only are these the first such prosecutions under the foreign bribery provision, but they also involve subsidiaries of the Reserve Bank involved in the bribery of high-level foreign officials in relation to the printing of banknotes.
Unless restrained by non-publication orders, it is highly probable that there would be considerable media coverage of the companies’ pleas, the sentencing remarks, and the facts of each of the conspiracies.
The competing public interests
The starting point is that it is a fundamental principle of the common law that all proceedings should be held in public. The open justice principle helps to maintain the integrity and efficiency of the courts, and the public’s confidence in the administration of justice.
Sections 18 and 19 of the Supreme Court Act are consistent with that principle. They provide as follows:
18. Power to close proceedings to the public
(1) The Court may in the circumstances mentioned in section 19 –
(a) order that the whole or any part of a proceeding be heard in closed court; or
(b) order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding; or
(c) make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding.
(2) This section applies to any proceeding, whether civil or criminal.
….
19.Circumstances in which order may be made under section 18
The Court may make an order under section 18 if in its opinion it is necessary to do so in order not to –
(a) endanger the national or international security of Australia; or
(b) prejudice the administration of justice; or
(c) endanger the physical safety of any person; or
(d) offend public decency or morality; or
(e) cause undue distress or embarrassment to the complainant …; or
(f) cause undue distress or embarrassment to a witness …
So, the court may only make an order under s 18 if it is of the opinion that it is necessary to do so for one of the purposes stated in s 19. Here, the only purpose relied upon in that in s 19(b). And any such order should go no further than necessary to achieve that purpose.
This court also has inherent jurisdiction to make suppression or non-publication orders in order to ensure a fair trial and avoid prejudice to the administration of justice.[8] That inherent jurisdiction recognises that it is a fundamental principle of the common law that a person is entitled to a fair trial.
[8]General Television Corporation Pty Ltd v Director of Public Prosecutions (2009) 19 VR 68; Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299.
Although I was taken to many cases concerning the principles of open justice and the entitlement to a fair trial, there is no real dispute between the parties as to the legal principles to be applied in this case. The dispute is as to how those principles apply to the facts of this case.
The DPP accepts that publishing the admission of guilt by a co-conspirator (as opposed to a finding of guilt) may increase the risk of the jury engaging in impermissible reasoning in relation to another co-conspirator. But the DPP and the Age say that reporting the imposition of the penalty and the sentencing remarks, without disclosing the process of finding guilt, would not prejudice any individual co-accused’s trial, particularly given the time that is likely to elapse between now and any trial.
In my sentencing remarks, I did not made findings of fact as to which of the individual co-accused were involved in which conspiracy. It was not necessary to do so for the purposes of sentencing the companies, and I was keen not to do so in the absence of evidence or submissions from the individual co-accused (and given the limitations in the statement of agreed facts, which I discuss later in these reasons).
The DPP and The Age say that because the sentencing remarks do not identify individual co-accused by name, publication of my sentencing remarks will not give rise to potential prejudice at any jury trial.
That submission is too simplistic. Publication of my sentencing remarks is likely to lead to widespread publicity of the fact that two subsidiaries of the Reserve Bank have been sentenced for conspiring with some of their former senior executives to bribe foreign banks in order to secure banknote contracts. Each of the individual co-accused clearly fits that description. The fact that they may not be mentioned by name in media reports, because I have not named them in my sentencing remarks, is not particularly important in terms of potential prejudice. Unlike some of the applicants in other cases which were referred to me, none of them are of such current notoriety that their names would be likely to be remembered by prospective jurors at a trial held next year. But what is likely to be remembered is that former senior executives of the Reserve Bank subsidiaries were involved as co-conspirators in bribing foreign banks.
It is self-evident that the passage of time can lead to the fading of memories, and the diminution of potential prejudice. But the novelty surrounding these being the first prosecutions for this offence (in circumstances where many Australians may not even realise that it is an offence to offer a bribe in countries where bribes may be perceived to be part of doing business), and the fact that the offenders are subsidiaries of Australia’s central bank, mean that not only are the conspiracies likely to receive considerable publicity, but the publicity is likely to stay in the minds of potential jurors longer than might otherwise be the case.
The DPP and the Age rightly point out that modern courts have “rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice.”[9]
[9]John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 366 per Spigelman CJ.
Trial judges often have to deal with cases where there has been pre-trial publicity which is prejudicial to the accused. Courts have developed a number of strategies for dealing with such problem situations after they have arisen, including by way of jury selection and jury directions. And, our criminal justice system is premised on the assumption that jurors can be relied upon to carry out such directions. But it does not follow that there is no need for a court (looking forward, rather than backwards) to take appropriate steps to reduce prejudicial pre-trial publicity, in order to protect an accused’s right to a fair trial.
The prosecution case against each of the individual co-accused is that they conspired with one or both of the companies. It will be evident to the jurors that the companies are not taking part in the trials with the individual co-accused. There are a number of ways the trial judge can deal with that matter, including by directing the jury not to speculate on the absence of the companies from the trial. Such a direction would be designed to prevent speculation that the companies had already been found guilty, and impermissible use of that speculation in considering the individual co-accused’s verdicts. Or, it may be that defence counsel will wish the jurors to be informed that the companies have pleaded guilty, and then seek to distance themselves from the company’s actions. There are difficult forensic decisions to be made by trial counsel in this regard. Their capacity to make those decisions is compromised if the fact that the companies have been sentenced has already been widely published.
Finally, I consider the DPP’s general deterrence arguments. In my sentencing remarks, I have noted that general deterrence is an important sentencing consideration for “white collar” crime such as these offences.
I accept that the Commonwealth government and its law enforcement agencies may be keen to deter others in the Australian business community from paying or offering bribes to foreign officials. And, as the first prosecutions under the foreign bribery provisions, there is likely to be considerable value in using these offences and sentences for educational purposes.
The conspiracies operated at various times around a decade ago. The AFP started their investigations around May 2009. These were large and very complex investigations. The charges were laid in June 2011. The effect of my orders will be that there will be a delay of a year or so, until the Australian community can be educated by reference to this sentence. I am not persuaded that the educational value of my sentence is sufficient to displace the individual co-accused’s right to a fair trial.
For these reasons, I am of the opinion that it is necessary to make the proposed further non-publication orders, in order to protect the rights of the individual co-accused to a fair trial, and to thereby prevent prejudice to the administration of justice.
Finally, I consider the question of access to plea brief documents. The Age is effectively seeking an order that I vary paragraphs 5 and 6 of the 5 December orders, so as to enable it to have access to the redacted statement of agreed facts.
It says that the principle of open justice also necessarily incorporates access to court documents.
In Herald & Weekly Times Ltd v Magistrates’ Court of Victoria[10], the Court of Appeal recognised that, given the way modern committals generally proceed, unless access to the hand-up brief is made available, a reporter will frequently find it impossible both to understand what is taking place during a committal hearing and thus to produce a report that is fair and accurate.[11]
[10](2000) 2 VR 346.
[11]At [7].
Similar reasoning was adopted by Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3)[12], a case concerned with access to documents in civil proceedings. In that case, his Honour held that 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.
[12](2002) ATPR 41-873.
The Age says that such a presumption should apply with respect to all documents:
(a) Relied upon by the court in reaching some determination; but
(b) Not read aloud in open court.
But, as Finkelstein J himself acknowledged, the presumption of access applied “unless the interests of justice require a different course.”[13]
[13]At [7].
Neither of those cases considered whether a court should allow public access to documents, the contents of which are not able to be reported because to do so would prejudice an accused person’s right to a fair trial.
For the reasons given above, I have determined that it is necessary to make the proposed further non-publication orders, in order to protect the individual co-accused’s rights to a fair trial. Given that The Age and other media will be unable to refer to my sentencing reasons until after completion of any trials of the individual co-accused, there is no logical reason for varying the current non-publication orders so as to allow public access at this time to one of the documents upon which my sentencing reasons were based.
Whether the redacted statement of agreed facts should be publicly released after the trials of the individual co-accused is not something I need to determine today. However, I make a few observations about some possible concerns in that regard.
Once the agreed statement of facts is released, it would be likely to be reported as if its contents were an accurate account of each of the conspiracies. But the agreed statement of facts is a document that has been agreed to by the prosecution and the corporate offenders, for the sole purpose of enabling the court to sentence them. It does not represent facts agreed to by any of the individual co-accused, or tested by any of the usual rigorous trial processes.
All of the individual co-accused left the companies’ employment some years ago. The prosecution, the companies and their lawyers have had to try to reconstruct what happened from documents and from speaking to other current or former employees. There are many parts of the agreed statement which are not so much “agreed” as simply not disputed, because the companies themselves do not know what happened, are not in a position to dispute the prosecution case, and have made a pragmatic decision to accept the prosecution case for sentencing purposes.
It may be that, at any trial of the individual co-accused, matters which have been agreed as “facts” for the purpose of sentencing the companies are no longer pressed by the prosecution, are ruled to be inadmissible, or simply do not stand up to trial scrutiny. Or, if any of the individual co-accused decide to plead guilty prior to trial, and offer to assist the prosecution, in order to receive a substantial discount on the sentence that might otherwise be imposed on them, they may provide information to the prosecution which changes the “facts” as currently agreed with the companies.
It follows that the application by The Age for access to the redacted statement of agreed facts will be dismissed.
I will hear from the interested parties as to the appropriate form of order.
---
3