FEDERAL COURT OF AUSTRALIA

The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44

ORDERS

THE COURT ORDERS THAT:

1.    The appellants’ application for an extension of the non-publication order made on 6 March 2020, or in the alternative the making of a limited non-publication order which would permit publication of a redacted version of the judgment handed down on 6 March 2020, and/or the use of pseudonyms, be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellants in this matter have been committed for trial before the Court on various indictable offences under the Competition and Consumer Act 2010 (Cth). That trial is provisionally listed to commence on 27 April 2020. In a pre-trial hearing before the trial judge, the appellants applied for an order severing three charges from the indictment and staying them until further order. That application was dismissed by the trial judge. The appellants were given leave to appeal the trial judge’s orders dismissing the application. The appeal was heard on 31 January 2020 and 3 February 2020. On 6 March 2020, the Court ordered that the appeal be dismissed. An order was also made on that day restricting the publication of the Court’s reasons (Judgment) for dismissing the appeal to the parties and their legal advisers until midnight on 10 March 2020 upon the ground that that order was necessary to prevent prejudice to the proper administration of justice. That limited non-publication order was extended by order of the Court until midnight on 16 March 2020. The parties were invited to make any submissions they wished to make in relation to the extension of the non-publication order.

2    Each of the appellants subsequently filed submissions concerning the extension of the order. The first and second appellants submitted that a limited non-publication order should be made which, until the conclusion of the trial, only permitted the publication of a redacted version of the reasons using pseudonyms for the names of the appellants. The third appellant sought an extension of the non-publication order to 30 June 2020, or, in the alternative, an order in similar terms to the order sought by the first and second appellants, though with additional redactions. The prosecutor neither consented to nor opposed the making or extension of a non-publication order and did not file any submissions.

3    For the reasons that follow, we are not persuaded that there is a sound basis for extending the existing non-publication orders or for making the more limited orders proposed by the appellants. We are, in short, not satisfied that such orders are necessary to prevent prejudice to the proper administration of justice.

Relevant provisions and principles

4    Section 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that the Court may, by making a suppression order or non-publication order, prohibit or restrict the publication or disclosure of, inter alia, information tending to reveal the identity of any party in a proceeding before the Court, or information that relates to a proceeding before the Court and is “information that comprises evidence or information about evidence”.

5    Section 37AG of the FCA Act specifies the grounds upon which the Court is permitted to make such an order. One of those grounds, being the only ground potentially applicable to the circumstances of this case, is that “the order is necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a) of the FCA Act.

6    Section 37AE of the FCA Act provides that in deciding whether to make a suppression or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7    The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are fairly well settled.

8    Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

9    The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21].

The appellants’ contentions

10    The main basis upon which the appellants contend that the existing non-publication order should be extended, or a more limited non-publication order should be made, was that there is a risk that jurors or prospective jurors will read the Judgment and be “improperly influenced by extraneous material” or be “infected with the knowledge of matters other than the evidence in the proceedings”. The unstated or implicit contention appeared to be that the publication of the Judgment would thereby potentially prejudice their right to a fair trial.

11    As for the risk that jurors or prospective jurors may become aware of the Judgment, the first and second appellants submitted that “a very simple Google search for ‘Country Care’ or related search terms is highly likely to reveal the Judgment”. They also asserted that the Judgment would not be “difficult to find” because it is currently the only criminal matter in the Court. For his part, the third appellant asserted that “potential jurors … have already been notified of the identity of the proceedings on which they may act as a juror”. He also drew attention to the fact that the Court’s website contained information about the trial that named the first appellant.

12    As for the contention that there was a risk that potential jurors who became aware of the Judgment might be “improperly influenced by” or “infected with” some extraneous material, the first and second appellants drew attention to or relied on the following assertions concerning the Judgment. First, the Judgment contains a short summary of the prosecution’s factual case. It was contended, in that context, that those facts “may be materially different from the facts revealed in admissible evidence adduced at the trial”. Second, the Judgment reveals the breadth of the prosecution case before it was narrowed. That was said to suggest that “the case could have been wider and the gravity of the alleged offending different”, a matter which was said to be “irrelevant and prejudicial to a jury’s consideration of the facts at trial”.

13    The specific paragraphs that the first and second appellants submitted should be redacted from the published Judgment were paragraphs [8]-[30], [74], [86], [93], [98], [99], [100], [103], [108], [109], [114], [115]-[122] and [141].

14    For his part, the third appellant relied on the following assertions concerning the Judgment. First, while the Judgment states that the “views” expressed therein were “provisional”, there were large sections of the Judgment where that “qualification” was not repeated. Second, the Judgment rejects the appellants’ contentions concerning the “complexity of the hearing and the jury directions” and states that the appellants’ submissions “tended unnecessarily to overcomplicate the matter”. It was submitted that those features of the Judgment may “damage [the third appellant’s] ability legitimately to advance submissions which may be regarded by a jury as complex”. Third, the Judgment concludes on a preliminary basis that it is doubtful that there is any clear or necessary disjunct between the 12 events relied upon by the prosecutor. It was submitted that the appellants may wish to challenge that preliminary view. The third appellant also submitted that non-publication orders in relation to interlocutory appeals are “not uncommon in the context of (other) trials being anticipated”.

Necessary to prevent prejudice to the proper administration of justice?

15    We are not satisfied that any form of non-publication order in respect of the Judgment is necessary to prevent prejudice to the proper administration of justice having regard to the particular circumstances of this case. While there no doubt may be cases where a non-publication order is necessary to prevent prejudice to the proper administration of justice because the publication of a judgment may give rise to a risk of prejudice to an accused person in a forthcoming criminal trial, this is not such a case. That is so for a number of reasons.

16    First, we are not persuaded that it is at all likely that any prospective juror is likely to search for and read the Judgment prior to the commencement of the trial. We doubt that even the most inquisitive person who has received a jury summons in relation to the trial would be likely to search the internet for a judgment concerning the matter. Even if they did, there is no evidentiary foundation or sound basis for the assertion that a “very simple Google search” is likely to reveal the Judgment. Nor would we be prepared to take judicial notice of such a fact, or draw any such inference from our general knowledge of the internet. It is equally likely that a Google search would primarily turn up past media coverage of the case against the appellants, including perhaps coverage of the apparently lengthy committal hearing. There is no suggestion that the appellants sought any non-publication order in respect of the facts that were exposed during the course of the committal hearing.

17    Second, we seriously doubt that any person selected on the jury when the trial commences is likely to search for and read the Judgment during the course of the trial. That is because the trial judge will almost certainly direct the jury that they should not search the internet or conduct their own research in relation to the trial. Indeed, they are likely to be warned that it may be an offence to do so: see s 78A of the Juries Act 2000 (Vic). This Court, like other courts that conduct criminal trials, must “place great store in the integrity of the jury system, including that jurors will act on the directions given by the trial judge”: Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97 at [72].

18    Third, and more fundamentally, we reject the apparent contention that there is any information or material in the Judgment which would give rise to a risk of prejudice to the appellants or their right to a fair trial. There is in our view no sound basis for the assertion that a juror who somehow came to read the Judgment might be “improperly influenced by” or “infected with” any prejudicial material. The appellants’ submissions in that regard tend to mischaracterise the Judgment and the reasoning exposed therein.

19    While it may be correct that the Judgment includes a short summary of the prosecution’s factual case, it is equally clear that the summary is expressed in neutral, if not anodyne, terms. More significantly, the summary is immediately preceded by the statement that the facts as set out are “no more than allegations” drawn from the notice of prosecution case, some of which may well be disputed at trial, and that it may ultimately turn out to be the case that the prosecutor will not be in a position to prove them: Judgment at [9]. The submission by the first and second appellant that a “non-skilled reader” may not understand this statement, and may instead read the summary of facts as if it was the Court’s conclusion concerning the facts, cannot be accepted. The statement could not be clearer. No reasonable reader of the Judgment would understand the summary of facts to be the Court’s findings or conclusions about the facts.

20    The third appellant’s characterisation of the summary of facts in the Judgment as being the Court’s provisional view about the facts which a potential juror may regard as “determinative” likewise cannot be accepted. The summary of facts is not stated to be the Court’s provisional view about the facts. Indeed, quite the contrary. It is clearly stated that the summary of facts is drawn from the notice of case for the prosecution and, as already noted, it is clearly emphasised that the facts as stated are mere allegations which the prosecutor may not ultimately be able to prove.

21    The contention by the first and second appellants that the reference in the Judgment to the narrowing of the prosecution case could somehow be prejudicial should not be accepted. It is highly unlikely that a juror who happened to read the Judgment would read anything into the brief reference to the narrowing of the prosecution case, other than perhaps that it occurred as a result of the trial judge’s suggestion that the prosecutor had made the case more complicated than it needed to be by particularising the case in a way which involved various alternatives. It is difficult to see why that would result in any prejudice to the appellants, particularly in circumstances where the trial judge will no doubt in due course give the jury careful directions concerning the elements of the charges as ultimately particularised. Any juror who, by reason of having read the Judgment, had some knowledge about how the case had previously been particularised, would be likely to disregard that knowledge upon hearing the trial judge’s directions.

22    The third appellant’s submission that a juror’s knowledge about the Court’s findings in the Judgment could somehow damage his ability to advance submissions to the jury at trial about the complexity of the case is speculative and far-fetched. It is true that the Court’s reasons for dismissing the appeal included a rejection of the appellants’ contention that the trial judge will necessarily be required to give extended unanimity directions which would be of “impossible or oppressive complexity”. It was, however, repeatedly emphasised throughout the Judgment that the nature of the directions that may ultimately need to be given by the trial judge will very much depend on the evidence which is adduced at trial and the parties’ arguments and contentions concerning that evidence: see for example the Judgment at [78] and [104]. Even in the unlikely event that a juror read the Judgment, nothing said in the Judgment concerning the complexity or otherwise of the likely directions to the jury, or the complexity or otherwise of the prosecution case generally, could reasonably be regarded as likely to inhibit or “damage” any argument that the appellants may wish to put to the jury at trial.

23    As for the third appellant’s complaint concerning the Court’s observation (Judgment at [98]) that it is “doubtful that there is any clear or necessary disjunct” between some or all of the events that the prosecution contended comprised the alleged course of conduct, a fair reading of the Judgment reveals that that observation was made directly in response to submissions that had been advanced by the appellants. The suggestion that it was made “without the benefit of submissions from the parties” is plainly wrong. More significantly, the third appellant’s implicit suggestion that this observation may somehow prejudice any submission he may wish to put to the jury at trial in relation to that issue is without foundation. In particular, that suggestion entirely ignores the clear statement (Judgment at [99]) that the issues concerning the relationship or otherwise between the alleged events “ultimately fall to be considered at the trial, both by the trial judge in framing appropriate directions to the jury, and ultimately by the jury in determining whether the prosecutor has proved the conduct element of the offence”.

24    We have re-read and considered all of the paragraphs of the Judgment that the appellants said should be redacted from the published version. We have done so on the assumption that it is the appellants’ contention that it is those paragraphs which contain material that, if published prior to the trial, may somehow cause prejudice to the appellants. Read fairly and in context, none of those paragraphs contain any information which might be in any way prejudicial to the appellants or might prejudice the appellants’ defence of the charges at trial. None of those paragraphs contain information the publication of which could give rise to a risk of prejudice to the proper administration of justice in any respect.

25    We should add, in this context, that the publication of a redacted version of the Judgment, particularly a version with the extensive redactions suggested by the appellants, would in our view be more likely to give rise to a risk of prejudice. That is because a juror or prospective juror who, for some reason or other, came to read the redacted judgment might well speculate about why paragraphs had been redacted. It would also be difficult to make sense of the reasoning in the Judgment if the large number of paragraphs identified by the appellants were redacted.

26    Fourth, the third appellant’s assertion that non-publication orders in relation to interlocutory appeals are not uncommon in the context of other anticipated trials is not a matter which carries any real weight. The third appellant cites, as an example, what was said by Basten JA in Ibrahim at [55]. Basten JA went on to note, however, that “[w]hether they [non-publication orders] are always necessary is not a question which needs to be addressed”. That appears to have been an acknowledgment that attention is not always given to whether the making of non-publication orders is always necessary. There may perhaps be a practice in other courts to routinely make non-publication orders in respect of judgments concerning forthcoming criminal trials simply out of an abundance of caution and because they are generally not opposed. If there is such a practice, we are not persuaded that it is one which should be adopted here. To make non-publication orders in relation to judgments in respect of interlocutory appeals simply because such orders are commonplace would be to ignore the mandatory terms of s 37AE and the clear and emphatic terms of s 37AG(1)(a) of the FCA Act.

27    It is, of course, possible to imagine many cases involving interlocutory appeals in criminal trials where non-publication orders should be made on the basis that they are necessary to prevent prejudice to the proper administration of justice. The clearest example would be an interlocutory appeal in respect of a pre-trial ruling to exclude evidence, particularly where the appeal is dismissed and the evidence will accordingly not be adduced at trial. If the excluded evidence was of a highly prejudicial nature, there may well be good grounds for making a non-publication order. This, however, is plainly not such a case.

28    Fifth, we are not persuaded that the use of pseudonyms in place of the appellants’ names in the published Judgment is warranted or likely to assist the administration of justice in any way. The use of pseudonyms is not warranted because, for the reasons already given, the Judgment does not contain any prejudicial information or any material which gives rise to a risk of prejudice. The use of pseudonyms is unlikely to assist because, while that may result in it being even less likely that a Google search using the appellants’ names would reveal the existence of the Judgment, a particularly inquisitive and persistent person may nevertheless ultimately be able to obtain a copy of the Judgment. While we consider that to be highly unlikely, if it did occur, the person who obtained the Judgment may be able to link the facts disclosed in the Judgment to the case against the appellants, despite the use of pseudonyms. That might in turn cause the inquisitive Google searcher to speculate as to why pseudonyms were necessary in the first place.

29    Sixth, as s 37AE makes clear, the public interest in open justice is a primary consideration in deciding whether to make a suppression or non-publication order. The principle of open justice is “one of the overarching principles in the administration of justice” which “lies at the heart of the exercise of judicial power as part of the wider democratic process”: Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4]. The principle involves justice being seen to be done. While the principle is not an “absolute concept”, an order restricting the ordinary open justice approach is “not lightly made”: Egan at [4].

30    There has undoubtedly been some media and legal commentary about this case to date. That commentary may have included references to the pre-trial application, the appeal from the orders made by the trial judge, and, importantly, the dismissal of the appeal by order made on 6 March 2020. Non-publication orders were not sought or made in respect of information disclosed during the course of the appeal, which was heard in open court. The effect of the orders sought by the appellants would be that members of the public, including members of the legal and commercial communities who have a legitimate interest in the legal issues raised by the appeal, will not have access to the Court’s reasons, or full reasons, for dismissing the appeal. That would be highly undesirable and contrary to the principle of open justice. While the orders sought by the appellants would be justified if it could be demonstrated that the publication of the Judgment would give rise to a risk of prejudice to the appellants at their trial, for the reasons already given that has not been demonstrated.

Conclusion and disposition

31    The appellants have not demonstrated that an extension of the interim non-publication order is necessary to prevent prejudice to the proper administration of justice. We are not satisfied that a non-publication order of any sort, including the limited non-publication orders proposed by the appellants, is necessary to prevent prejudice to the proper administration of justice. That is primarily because we are not satisfied that there is any information or other material in the Judgment which, if read by a juror or prospective juror, would be in any way prejudicial to the appellants, or give rise to any risk of prejudice to the appellants’ defence of the charges at their forthcoming trial.

32    The interim non-publication order will accordingly not be further extended and no order will be made in its place.

Associate:

Dated:    16 March 2020