R v Note Printing Australia Limited (Ruling No 3)
[2013] VSC 449
•29 August 2013
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
SCR 2011 0157
SCR 2011 0158
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NOTE PRINTING AUSTRALIA LIMITED and SECURENCY INTERNATIONAL PTY LTD |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2013 | |
DATE OF JUDGMENT: | 29 August 2013 | |
CASE MAY BE CITED AS: | R v Note Printing Australia Limited & Anor (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 449 | |
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CRIMINAL LAW – Non-publication orders – Breach of non-publication orders by on-line media publisher – Breach inadvertent – Immediate steps taken to remove offending material once breach discovered – Appropriate steps taken to improve compliance system – No prior breaches of non-publication orders by publisher – Apology accepted – No further punishment called for
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K Armstrong | Commonwealth Director of Public Prosecutions |
| For Bloomberg LP | Mr J Ruskin QC and Mr A Dinelli | Minter Ellison |
| For Mr Stephen Wong | Mr P Tehan QC | Slade and Parsons |
HER HONOUR:
On 5 December 2011, two subsidiaries of the Reserve Bank of Australia, Note Printing Australia Limited and Securency International Pty Ltd, 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). I heard their respective pleas on that date.
A number of individuals, including former officers or employees of Note Printing and Securency, have also been charged with being party to one or more of those conspiracies. Their cases have yet to come on for trial. One of the individual co-accused, Mr Stephen Wong, appeared before me by his senior counsel.
On 5 December 2011, I made orders prohibiting the general 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.
On 17 July 2012, after hearing a number of further applications in the meantime, I sentenced the two companies in respect of those charges. On the same day, I also made orders which effectively extended the scope of my previous non-publication orders. In particular, the 17 July orders prohibited the general publication of any material containing any reference to the plea hearing, the sentences, or my sentencing remarks.
I made the 5 December and 17 July orders in order to ensure that the individual co‑accused would be able to receive a fair trial, in the event that any of them were committed to stand trial.
Similar non-publication orders have been made in the Magistrates’ Court of Victoria, where committal proceedings against the individual co-accused are underway.
In addition, the County Court has prohibited publication of the fact that substantial pecuniary penalty orders have been made in that court against the two companies.
In August 2012, the committal proceedings for the individual co‑accused began. They have taken longer to complete than originally expected, primarily due to delays caused by an application made by one of the individual co-accused, seeking to require some journalists to reveal the sources of an article they published in December 2012. The magistrate’s ruling on that application was appealed to a judge in the trial division of this court, and then to the Court of Appeal.
I understand that current estimates are that the committal proceedings are expected to conclude before the end of this year.
Bloomberg LP is a financial news and information provider, based in New York City, USA. It provides financial data, news, tools and analytics to subscribers through the Bloomberg Terminal, a secure computer platform for Bloomberg clients. Bloomberg also publishes articles on various platforms, including the publicly-accessible websites and
At midnight on Monday 29 July 2013 (being the start of Tuesday 30 July 2013) an article was published on the Bloomberg Terminal and the two named websites, under the heading “RBA Units Suffered ‘Collective Amnesia’ in Bribes Probe”, or an almost identical heading.
The article was published in an identical form in the three locations and included the following words:
Note Printing Australia Ltd, the RBA’s money-printing unit, and Securency International Pty, the maker of polymer substrates on which notes are printed, have pleaded guilty to three charges each of conspiring to bribe foreign public officials in Malaysia, Indonesia, Vietnam and Nepal.
The disclosure of that information was in clear breach of the 17 July orders. It would also appear to be in breach of the equivalent Magistrates’ Court orders.
In so far as the article also disclosed that the two companies had been ordered to pay penalties of $19.8 million and $1.8 million, that appears to be in breach of the relevant County Court orders.
The article was written by Mr Joe Schneider, Sydney legal reporter, Bloomberg News, and edited by Mr Edward Johnson, Sydney Bureau Chief, Bloomberg News.
Veronica Clare Scott, special counsel at Bloomberg’s solicitors, Minter Ellison, has sworn affidavits dated 9 and 22 August 2013, respectively. The first affidavit was prepared and filed for use in the Magistrates’ Court, and a copy has been provided to this court. The first affidavit sets out in some detail the circumstances in which the suppressed information came to be published, and the steps subsequently taken to improve the system for compliance by Bloomberg with non-publication orders.
The second affidavit was prepared and filed in this court, to update the court in relation to steps taken by Bloomberg to improve its compliance system.
The first affidavit also conveys the regret and unreserved apologies of Mr Schneider, the author, and Mr Johnson, the editor, both of whom are very experienced journalists. Both of them attended at the Magistrates’ Court on 9 August 2013, when the publication of the article was considered by Magistrate Goldberg. Mr Johnson also attended this court.
Given the matters set out in the first affidavit, it is easy to understand why Mr Schneider was not personally aware of the fact that he was precluded from reporting the suppressed information.
Mr Schneider had attended three days of the committal proceedings in the week before the article was published. A Magistrates’ Court order, dated 22 July 2013, was posted on the door, but I understand that it only related to non-publication of some matters then before the magistrate. It appears that on those three days, there was no notice on the door of the court, advising of the fact that there were non-publication orders in relation to the guilty pleas.
Mr Schneider was aware of a report by the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity entitled “Integrity of overseas Commonwealth law enforcement operations”, dated June 2013, which he used in the preparation of the article. Mr Schneider obtained a copy of the committee’s report, which is publicly available on the Parliament of Australia’s website.
It is most unfortunate that the committee’s report discloses to the general public matters which a number of courts, including this one, have ordered not to be published until after the completion of the cases against the individual co-accused. Specifically, it discloses that the companies have pleaded guilty, and have been ordered to pay the very substantial pecuniary penalties.
The committee’s report also contains a footnote reference to an article, which appeared in the Sydney Morning Herald on 28 October 2011, reporting that the companies had entered guilty pleas in the Magistrates’ Court. When he read the committee’s report, Mr Schneider recalled having read the Sydney Morning Herald article, or one like it, in the past.
Finally, while writing the article, Mr Schneider contacted the RBA for comment on the findings in the committee’s report. He spoke with Mr Chris Collins, a manager in the media and public relations office of the RBA, who declined to comment on the report. Mr Collins did not mention that there were any non-publication orders in place, which might affect any article written about the report.
Mr Collins was well aware of the existence of the non-publication orders. At about 9.30 am on 30 July 2013 (that is to say, on the same morning as the Bloomberg article appeared on-line), Mr Collins rang Mr Johnson, the editor, and informed him that the article potentially breached a suppression order made in the Magistrates’ Court.
Unfortunately, this is not the first time that non-publication orders have been breached, in circumstances which could easily have been avoided, had the RBA behaved differently.
In October last year, an article appeared in the Australian Financial Review, which disclosed suppressed information similar to that which was published by Bloomberg. When that matter came before me in November last year, it became apparent that Brian Toohey, the very experienced journalist in that case, had also contacted the RBA’s media and public relations office, before publishing his article. He left a message, asking for confirmation that the companies had pleaded guilty, and for a comment about the charges and penalties. His call was returned by a woman, who described herself as an “in-house lawyer at the RBA”, who informed him she could not answer his questions because of the ongoing proceedings before the court. She did not inform him that there were any non-publication orders in place, which might affect any article he was proposing to write about the pleas and penalties.
As in this case, the person who contacted Mr Toohey after publication, and informed him that his article may have breached the non-publication orders, was the very person to whom the journalist had spoken to in advance of writing the article.
It is obviously a matter for the RBA whether or not it wishes to answer questions from, or make comments to, the media. However, when it does receive a media inquiry about a matter which it is well aware is the subject of non-publication orders, the court expects that a responsible body in the position of the RBA (or Securency or Note Printing, for that matter) would at least alert the journalist to the existence of the orders. For the RBA, by its silence, to enable journalists who appear to be ignorant of the existence of the non-publication orders, to inadvertently breach those orders, is contrary to the spirit (if not also the letter) of the orders.
I have no doubt that had Mr Collins informed Mr Schneider of the existence of the non-publication orders, when the inquiry was first made of the RBA, Bloomberg would not have published the suppressed information.
After Mr Collins rang Mr Johnson on the morning of 30 July, and informed him that the article potentially breached the orders, Mr Johnson immediately sought legal advice, and asked for the article to be removed from the two websites. It was removed shortly thereafter. Early that afternoon, the article was re-filed on the Bloomberg Terminal, but not the websites, with the suppressed information removed. Prior to their removal, the article received a total of about 1,200 unique hits across the three locations.
Prior to this incident, Bloomberg’s system for ensuring compliance with non-publication or suppression orders was less than adequate. If an article was perceived to raise any legal concerns, a journalist or editor could refer it to Bloomberg’s legal counsel in New York, for “legalling”. But there was no system for routinely receiving notice of such orders, or notifying staff of reporting limitations in particular court proceedings. Since the incident, Bloomberg has introduced a new system for ensuring compliance with relevant orders, which has a number of features designed to try to avoid a repetition of this incident. If rigorously applied and maintained, the new system should significantly reduce the possibility of a similar incident occurring.
Finally, I note that in the seven years that Mr Johnson has been the editor, Bloomberg has not been before any Australian court for any alleged breach of a non-publication or suppression order.
In conclusion:
(a) I accept that the publication of the suppressed information occurred inadvertently, not deliberately;
(b) I am satisfied that the publisher acted promptly to remove the offending material from the Bloomberg Terminal and the two websites, as soon as it became aware of the breach;
(c) Given the nature, extent and timing of the publication, I am satisfied that the potential harm to the individual co‑accused is, in the circumstances, not significant;
(d) I am also satisfied that the publisher has taken reasonable steps to put in place a new system intended to prevent a similar occurrence in the future. I expect the new system to be adopted and enforced rigorously in the future; and
(e) Finally, I have had regard to the lack of previous breaches of non-publication or suppression orders.
Obviously, it is a matter for the County and Magistrates’ Courts to determine for themselves what, if any, steps they may wish to take in relation to any breach of their orders. However, as far as the Supreme Court is concerned, the apologies will be accepted and no further steps will be taken in relation to this particular breach of the court’s orders.
Until such time as the 17 July 2012 orders are finally discharged, access to these reasons will be limited to the following categories of persons:
(a) The Commonwealth Director of Public Prosecutions;
(b) Bloomberg LP;
(c) The individual co-accused;
(d) The Magistrates’ Court of Victoria;
(e) The County Court of Victoria;
(f) Securency International Pty Ltd, Note Printing Australia Limited and the Reserve Bank of Australia;
(g) Commonwealth Government Departments and Ministers;
(h) Committees of the House of Representatives or the Senate of the Parliament of Australia; and
(i) The legal advisers of any of the persons referred to above.
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