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

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

The Crown's proposed exception was too broad and its safeguards were inadequate because disclosure of the unredacted sentencing reasons to a broad class of legal representatives could reveal the identity of the corporate offender and individual accused and thereby create a substantial risk to the fairness of the pending trials. There was no demonstrated need for advisers in other foreign bribery matters to know those identities. A narrower variation permitting publication of the sentence and an agreed redacted version of the sentencing remarks to legal representatives retained or briefed by persons currently investigated or prosecuted for foreign bribery offences, subject to...

Jurisdiction
Australia
Judgment Date
26 August 2021
Procedural Posture
Procedural Ruling Concerning Suppression and Non Publication Orders in Criminal Proceedings / Crown Amended Notice of Motion Dated 12 August 2021 to Vary Non Publication Orders, Heard on the Papers
Outcome
The Court declined to amend the non-publication orders in the broad terms proposed by the Crown, directed the parties to agree on redacted sentencing reasons, otherwise dismissed the Crown's amended notice of motion dated 12 August 2021, and granted liberty to restore.
Legal Topics
['variation of Non Publication Orders' 'open Justice' 'proper Administration of Justice' 'fair Trial of Accused Persons' 'foreign Bribery Offences' 'redacted Sentencing Reasons' 'corporate Offender Sentencing']
['civil Procedure' 'criminal Procedure' 'suppression and Non Publication' 'sentencing'] ['variation of Non Publication Orders' 'open Justice' 'proper Administration of Justice' 'fair Trial of Accused Persons' 'foreign Bribery Offences' 'redacted Sentencing Reasons' 'corporate Offender Sentencing']

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Procedural Posture

Procedural Ruling Concerning Suppression and Non Publication Orders in Criminal Proceedings / Crown Amended Notice of Motion Dated 12 August 2021 to Vary Non Publication Orders, Heard on the Papers

Legal Issues

  1. 1 ['Whether the non-publication orders should be varied to permit the CDPP, AFP or Commonwealth legal representatives or employees to provide the sentencing reasons for Jacobs Australia to lawyers representing corporations investigated or prosecuted by a Commonwealth agency.' 'Whether disclosure of the unredacted sentencing reasons would risk prejudicing the fair trials of the individual accused persons.' 'Whether a narrower variation permitting publication of the sentence and redacted sentencing remarks to legal representatives retained or briefed by persons investigated or prosecuted for foreign bribery offences should be authorised.']

Ratio Decidendi

The Crown's proposed exception was too broad and its safeguards were inadequate because disclosure of the unredacted sentencing reasons to a broad class of legal representatives could reveal the identity of the corporate offender and individual accused and thereby create a substantial risk to the fairness of the pending trials. There was no demonstrated need for advisers in other foreign bribery matters to know those identities. A narrower variation permitting publication of the sentence and an agreed redacted version of the sentencing remarks to legal representatives retained or briefed by persons currently investigated or prosecuted for foreign bribery offences, subject to...

Court Disposition

The Court declined to amend the non-publication orders in the broad terms proposed by the Crown, directed the parties to agree on redacted sentencing reasons, otherwise dismissed the Crown's amended notice of motion dated 12 August 2021, and granted liberty to restore.

Orders

  • ['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.' 'Direct the parties to provide to my Associate an agreed form of the...