FEDERAL COURT OF AUSTRALIA

The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 30

ORDERS

THE COURT ORDERS THAT:

1.    The appeal 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    An indictment has been filed in this Court charging The Country Care Group Pty Limited, Mr Robert Martin Hogan and Mr Cameron Harrison with a total of eight offences against provisions of the Competition and Consumer Act 2010 (Cth) which involve cartel conduct. The joint trial of the three accused has been delayed by various interlocutory disputes. The latest dispute, which is the subject of this appeal, involved an application by the accused to sever the first three charges from the indictment and stay them until further order. The first three charges allege that Country Care and Mr Hogan had each attempted to induce a person to contravene a cartel offence provision (charges 1 and 2) and that Mr Harrison had aided, abetted, counselled or procured the attempt by Mr Hogan (charge 3). The trial judge dismissed that application: Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd [2019] FCA 2200 (CDPP v Country Care). His Honour subsequently granted each of the accused leave to appeal his orders dismissing the applications and vacated the trial: Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (No 2) [2019] FCA 2201. The trial is now provisionally listed to commence on 27 April 2020 with an estimate of six weeks.

2    The contention by the accused that the first three charges in the indictment should be severed and temporarily stayed hinged on the proposition that any trial on an indictment that included those three charges as particularised by the prosecutor would necessarily be unfair and oppressive. That was said to be the case because the trial of those three charges would be highly complex and would require the trial judge to give directions to the jury that would be of “impossible or oppressive complexity” and would not be able to be comprehended.

3    The complexity of the trial in relation to the first three charges was essentially said to arise because there were thousands of potential alternative “pathways” to guilt in respect of each of those charges. Those many alternative pathways were said to be a product of the way the prosecutor, the Commonwealth Director of Public Prosecutions, had particularised the “physical” elements of the charges; a conduct element relating to the alleged inducement and a circumstance element relating to the alleged cartel provision. The accused submitted that the trial judge would be required to give the jury detailed and complex directions concerning those many alternative pathways, along with directions to the effect that the members of the jury would have to be unanimous as to any particular pathway or pathways before they could find the accused guilty of the charges.

4    The trial judge did not accept that the three charges were nearly as complex as the accused contended they were. He found that there were no multiple pathways and accordingly no need for unanimity directions in relation to the conduct element. While his Honour accepted that there were some alternative pathways having regard to the way the prosecutor had particularised the relevant cartel provision, his Honour found that the number of alternatives and the complexity of the consequent unanimity directions were not as great as the accused contended. There was accordingly no reason to sever and stay the first three charges.

5    The determination of the interlocutory application by the trial judge was complicated somewhat because the prosecutor changed the way that the conduct element was characterised or particularised. That occurred after the hearing and was essentially prompted by a communication which the trial judge sent to the parties. The parties were, of course, invited to and did file further written submissions in relation to the change in the prosecution case.

6    The prosecutor continued to refine and confine the particulars of the prosecution case following the trial judge’s dismissal of the interlocutory application. That included the filing of an amended indictment and an amended notice of the case for the prosecution. As will be seen, the process of refinement and confinement continued during the hearing of the appeal. While it is, to an extent at least, important to give some consideration to the way that the prosecutor put the prosecution case at the time the trial judge decided the application, the more fundamental question now is whether the prosecution case as currently particularised is so complex, and would require such complex directions to the jury, that it would be oppressive and unfair to the accused. It was common ground that the Court should approach that question on the basis of the most recent version of the indictment and the most recent version of the notice of the case for the prosecution (notice of case).

7    There could be little or no doubt that the trial of the accused in respect of the first three charges will involve some complexity. The relevant offence provisions are such that just about any trial involving them will be complex. There is also a degree of factual complexity involved in the particular allegations against the accused in respect of charges 1 to 3. But are the charges, having regard to the way they have been particularised by the prosecutor, oppressive or unfair because they will inevitably require the trial judge to give complex directions concerning the need for unanimity in relation to what are said to be multiple potential pathways to guilt?

8    It is necessary, in order to answer that question, to give close consideration to the relevant offence provisions, the way in which the prosecution has particularised the charges in the indictment and notice of case, and the relevant principles relating to unanimity directions. Before addressing those issues, it is helpful to provide a short summary or overview of the facts that form the basis of the prosecution case.

SHORT Summary of the PROSECUTion’S factual case

9    The following summary of the facts that form the basis of the prosecution case is drawn from the notice of case. The prosecutor is required by subs 23CD(1)(a) and s 23CE of the Federal Court of Australia Act 1976 (Cth) to file such a notice. Needless to say, the facts as set out in that notice of case are no more than allegations. Some of those factual allegations no doubt are or will in due course be disputed by the accused. The application before the trial judge and this appeal were, however, necessarily conducted on the premise that the prosecutor will be in a position to prove the facts set out in the notice of case. That, of course, may ultimately turn out not to be the case.

10    Country Care supplied a range of products, referred to generally as “assistive technology products”, which are designed to assist the elderly and people with disabilities to manage their daily living activities. That range of products included wheelchairs, walkers, beds, mattresses and specialised furniture.

11    Mr Hogan was the managing director of Country Care. Mr Harrison was an employee of Country Care and was, at relevant times, its business development manager and contract operations manager.

12    In 2010, Country Care was one of the successful tenderers to enter contracts with the Department of Veterans’ Affairs to supply assistive technology products at a national level to eligible beneficiaries under programs managed by the Department. One of the Department’s programs was called the Rehabilitation Appliance Program. The tender relating to that program that Country Care successfully bid for was known as the Mobility and Functional Support Tender. The products and the prices that were to be supplied under the Tender were governed by agreements entered into between Country Care and the Department.

13    In order to supply products under the Tender, Mr Hogan developed a nationwide network of independent assistive technology businesses who would supply products under the Tender as subcontractors to Country Care. The network was referred to as the Country Care Group and the businesses who were part of the network were referred to as “members” of the Country Care Group. The members agreed with Country Care to supply products to eligible beneficiaries in the Program pursuant to the Tender at the contracted prices; that is, the prices stipulated in the agreements between Country Care and the Department. When the Department paid for products supplied under the Tender, Country Care deducted a margin and administration fee before remitting the balance to the members who supplied the products.

14    The products that were supplied by Country Care, through the Country Care Group members, to eligible beneficiaries under the Tender are referred to in the notice as the Tender Goods. The Tender Goods included: Ellipse walkers; Trust Care indoor walkers; medical sheepskin overlays; Oscar branded chairs, including Menningham chairs and dining chairs; shower stools; over toilet frames; slip on or pressure care slippers; and Roho branded cushions, including quarto select low profile cushions.

15    While those and other assistive technology products were sold to beneficiaries in the Program pursuant to the Tender, Country Care and Country Care Group members also continued to sell those products to members of the public who were not beneficiaries. As will be seen, it is an important allegation in the prosecution case that Country Care competed with some Country Care Group members, and some Country Care Group members competed with each other in relation to the supply of some of those products to the general public in some geographical regions. It is an equally important allegation in the prosecution case that Mr Hogan and Mr Harrison were aware of that competition; that is, competition at that level of generality.

16    In about November 2012, Mr Hogan became aware of instances where Country Care Group members were selling or offering products directly to their own customers, in particular by public advertisement and on websites, at prices that were less than the contracted prices at which Country Care was selling the products, through the members, to the Department or the beneficiaries under the Tender. He became concerned that the Department might notice those instances and be prompted to negotiate lower contract prices under the Tender. It was that concern which, on the prosecution case, led Mr Hogan, on behalf of Country Care, to engage in the following conduct that is the main subject of the first three charges.

17    On 13 May 2014, Mr Hogan gave a presentation at a conference attended by Country Care Group members. During that presentation, Mr Hogan displayed a series of slides, one of which stated “never advertise contracted products on websites for less than the contracted price”. His oral presentation was consistent with the slides. He said, amongst other things, that promoting products at below tender prices was “not doing any of us any good”, that they would all lose out if that was done, and that it was in the interests of “everybody” to maintain high margins. Ten days after the conference, Mr Hogan sent an email to the members which included a link to the slides.

18    Mr Hogan made similar statements at other meetings or on other occasions during 2015.

19    On 12 May 2015, Mr Hogan gave a presentation to Country Care’s annual conference which was attended by a number of Country Care Group members. During that presentation, Mr Hogan referred to government tender agencies conducting research into retail prices, said that members’ online pricing needed to be in line with the Department’s tender pricing, referred to the need to keep margins up, and made statements to the effect that a united approach on tenders was required.

20    Mr Hogan made similar statements at a meeting held in August 2015 which was attended by at least four Country Care Group members based in New South Wales, at a meeting held some time during 2015 which was attended by at least five Queensland-based Country Care Group members, and at a meeting on 24 September 2015 which was attended by at least five Country Care Group members.

21    During a meeting with a representative of one Country Care Group member in mid-2015, Mr Hogan referred to the need for members to “hold the same front” on tender pricing. At a meeting with another representative of another Country Care Group member on 6 August 2015, Mr Hogan said that the Department would look at his pricing and that it would pull every members’ margins down because the Department “googled” the pricing submitted by Country Care.

22    Between about June 2015 and April 2016, Mr Hogan and Mr Harrison were involved in the drafting and circulation of contracts which were intended to govern the relationship between Country Care and the Country Care Group members. A solicitor was engaged to assist in that endeavour. Mr Harrison was the person who mostly dealt with that solicitor. Mr Harrison instructed the solicitor that Country Care wanted a clause that would “stop the members from advertising DVA [Department of Veterans’ Affairs] contracted items on their websites at lower prices, without opening ourselves up to restriction of trade claims”. The object of the clause was said to be to protect Country Care’s “DVA contracted pricing” given the risk that the Department might seek to renegotiate the contracted prices of products the subject of the Tender if it observed that Country Care Group members were on occasion offering those products to their customers at prices which were lower than the contracted prices.

23    Various drafts of the contract included clauses that related to the prices at which the members marketed or advertised their products. An early draft of the contract included the following clause:

Online Marketing. Member shall ensure that efforts to promote Country Care Group DVA contracted items do not lessen the market value of those items. If the member advertises a Country Care Group contracted item online, the pricing must be greater than or equal to the DVA contracted price.

24    Another version of the clause drafted by Country Care’s lawyer provided as follows:

The Seller must not market the Products at a price less than the price nominated by Country Care without prior approval from Country Care. This includes all online marketing.

25    When Mr Hogan saw a copy of the draft contract including this clause, he sent an email to Mr Harrison in which he stated that he was concerned that the clause violated “restrictive trade laws”. Mr Harrison responded by email, saying that he had “reworded” the clause but that it was “[s]till a very difficult clause to cover without crossing into restrictive sales practices”. The “reworded” clause was in the following terms:

The Member must ensure that efforts to promote the Products under the DVA RAP contract do not lessen the market value of those items by advertising the Products at a price less than the price agreed to by DVA. This includes all online marketing.

26    Mr Harrison sent draft contracts which included that version of the clause by email to Country Care Group members based largely in Victoria and Western Australia on 20 July 2015, by email to members based largely in Queensland on 27 July 2015, and by email to members based in New South Wales on about 4 August 2015. The email that attached the draft contracts stated that the draft contract was being sent in advance of upcoming meetings of the Country Care Group members and referred to an earlier meeting of the members at which the benefits of a contract between Country Care Group and its members had been discussed.

27    The wording of the clause was the subject of further discussion between Mr Hogan and Mr Harrison during the balance of 2015 and up to March 2016. On 28 April 2016, Mr Harrison, acting on the instructions of Mr Hogan, sent 43 members of the Country Care Group copies of the final version of the proposed contract. The final version of the contract included a clause in the same terms as the “reworded” clause.

28    The prosecutor alleged that the conduct of Mr Hogan and Mr Harrison which has just been summarised amounted to them and Country Care attempting to induce Country Care Group members to make an arrangement or arrive at an understanding between and amongst themselves and Country Care. The precise way that the prosecutor has put the prosecution case in that regard is detailed later in these reasons. It suffices to say at this point that the prosecutor now characterises the prosecution case as involving a course of conduct and eschews any suggestion that any single act engaged in by Mr Hogan or Mr Harrison during that course of conduct would itself constitute an attempt to induce the members to make the alleged arrangement or arrive at the alleged understanding.

29    The prosecutor also alleged that that arrangement or understanding contained a “cartel provision” as defined in subs 44ZZRD(1) of the Competition Act. That cartel provision was said to be that the members would not advertise for sale goods that Country Care contracted with the Department to sell under the Tender at below the contracted prices.

30    The precise way that the prosecutor has put the prosecution case in relation to the alleged cartel provision is detailed later in these reasons. Suffice it to say at this point that, the prosecutor now contends that the prosecution case is that the alleged provision, if implemented, would have had the likely effect of maintaining the prices at which Country Care Group members supplied goods to the general public, those goods being the assistive technology goods that Country Care had contracted to sell under the Tender. The prosecutor also contended that some Country Care Group members were in competition with Country Care and with each other in relation to the supply of at least some of those goods.

The relevant Charges in the indictment

31    It is unnecessary, for the purposes of this application, to consider the terms of charges four to eight in the indictment.

32    Charge 1, which charges Country Care with an offence of attempting to induce a person to contravene a cartel offence provision contrary to subs 44ZZRF(1) of the Competition Act by virtue of subs 79(1)(b) of the Competition Act is in the following terms:

The Prosecutor charges that between about 13 May 2014 and about 4 May 2016 at Mildura in the State of Victoria and elsewhere in Australia, THE COUNTRY CARE GROUP PTY LTD attempted to induce individuals and entities who were “members” of the Country Care Group from time to time during that period to contravene a cartel offence provision namely section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth) by making an arrangement or arriving at an understanding between and amongst members of the Country Care Group and COUNTRY CARE GROUP PTY LTD containing a cartel provision, knowing or believing that the arrangement or understanding contained a cartel provision.

33    Charge 2 charges Mr Hogan with the same offence. It is in the same terms as charge 1.

34    Charge 3 charges Mr Harrison with aiding, abetting, counselling or procuring Mr Hogan to commit the offence which is the subject of charge 2. It contains essentially the same particulars of that alleged offence as charges 1 and 2.

35    The indictment includes particulars of both the “members” of the Country Care Group and the cartel provision which are referred to in charges 1 to 3. The members are said to be set out in the second schedule to the indictment, which contains a list of 49 companies and individuals and their trading names. The cartel provision is particularised in the following terms:

That “members” of the Country Care Group would not advertise for sale goods that The Country Care Group Pty Ltd contracted with the Department of Veterans Affairs to sell under the Mobility and Functional Support Tender at below the contracted prices.

Relevant statutory provisions

36    In order to address the arguments advanced by the accused concerning the oppressive complexity of the charges, it is necessary to ascertain the elements of the relevant offences. While the prolixity and convoluted nature of the relevant statutory provisions means that there is necessarily some degree of complexity involved in that exercise, it is ultimately possible to set out the elements in fairly simple terms.

37    The provisions of the Competition Act which must be considered in order to ascertain the elements of the offences the subject of the first three charges in the indictment are s 44ZZRD, s 44ZZRF and s 79 as in force during the period May 2014 to May 2016. It is also necessary to have regard to those provisions of the Criminal Code, which is the Schedule to the Criminal Code Act 1995 (Cth), which deal with the physical and fault elements of offences generally.

38    The offence which is the subject of the first three charges in the indictment is an offence against s 44ZZRF of the Competition Act. Section 44ZZRF of the Competition Act provides as follows:

Offence

(1)    A corporation commits an offence if:

(a)    the corporation makes a contract or arrangement, or arrives at an understanding; and

(b)    the contract, arrangement or understanding contains a cartel provision.

Note:    Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2)    The fault element for paragraph (1)(b) is knowledge or belief.

Penalty

(3)    An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:

(a)    $10,000,000;

(b)    if the court can determine the total value of the benefits that:

(i)    have been obtained by one or more persons; and

(ii)    are reasonably attributable to the commission of the offence;

3 times that total value;

(c)    if the court cannot determine the total value of those benefits—10% of the corporation’s annual turnover during the 12-month period ending at the end of the month in which the corporation committed, or began committing, the offence.

Indictable offence

(4)    An offence against subsection (1) is an indictable offence.

39    The prosecutor does not allege that Country Care, or any other corporation, made an arrangement or arrived at an understanding which contained a cartel provision. Rather, it is alleged that Country Care and Mr Hogan committed an offence against s 44ZZRF by virtue of subs 79(1)(b) of the Competition Act and that Mr Harrison committed an offence against s 44ZZRF by virtue of subs 79(1)(a) and (b). Subsections 79(1)(a) and (b) relevantly provide as follows:

(1)    A person who:

…

(a)    aids, abets, counsels or procures a person to contravene; or

(b)    induces, or attempts to induce, a person (whether by threats or promises or otherwise) to contravene;

…

a cartel offence provision is taken to have contravened that provision …

40    Section 44ZZRF is a cartel offence provision: see subs 79(7) of the Competition Act.

41    Subsections 79(1AB), (1A) and (1B) apply provisions of s 11.1, 11.2 and 11.5 of the Criminal Code to paragraphs (aa), (a) and (d) of subs 79(1) respectively. No provision is made for the application of s 11.1, or any other provision in Div 11 of Pt 2.4 of the Criminal Code, to subs 79(1)(b) of the Competition Act. As for subs 79(1)(a), which is relevant to the charge against Mr Harrison only, subs 79(1A) provides that subss 11.2(2) to (5) (inclusive) of the Criminal Code apply in the same way that they apply in relation to subs 11.2(1) of the Criminal Code. Subsections 11.2(2) to (5) will be considered later in the context of other relevant provisions of the Criminal Code.

42    It should perhaps be noted in this context that it is probably more accurate to describe or characterise charge 3 against Mr Harrison as being the commission of an offence by virtue of s 11.2 of the Criminal Code, rather than subss 79(1)(a) and (b) of the Competition Act. Subsection 79(1)(a) refers to aiding, abetting, counselling or procuring a person to contravene a cartel offence provision, which means s 44ZZRF or s 44ZZRG. It does not refer to aiding, abetting, counselling or procuring a person to attempt to induce another person to contravene a cartel offence provision. This rather technical point does not have any bearing on the appeal. It is, however, perhaps something that the parties should raise with the trial judge.

43    An offence will only be committed against subs 44ZZRF(1) of the Competition Act, including the commission of the offence by virtue of subs 79(1)(a) and (b), if the relevant contract, arrangement or understanding contains a “cartel provision”. Section 44ZZRD contains a lengthy, detailed and complex definition of “cartel provision”. There are many different alternative ways that a provision may be a cartel provision. It is necessary to consider only those that are relevant, or potentially relevant, to the facts alleged by the prosecutor in this case.

44    Subsection 44ZZRD(1) provides as follows:

(1)    For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:

(a)    either of the following conditions is satisfied in relation to the provision:

(i)    the purpose/effect condition set out in subsection (2);

(ii)    the purpose condition set out in subsection (3); and

(b)    the competition condition set out in subsection (4) is satisfied in relation to the provision.

45    As indicated in subs 44ZZRD(1)(a)(i), subs 44ZZRD(2) sets out the “purpose/effect condition”. Relevant to the way the prosecutor now puts the prosecution case, subss 44ZZRD(2)(a) and (c) provides that the purpose/effect condition is satisfied if “the provision … is likely to have the effect, of directly or indirectly … maintaining … the price for … goods … supplied, or likely to be supplied, by any or all of the parties to the … arrangement or understanding”.

46    As for the “competition condition”, subss 44ZZRD(4)(a) and (c) relevantly provide, in the case where subs 44ZZRD(2)(c) applies, that the competition condition is satisfied if “at least 2 of the parties to the … arrangement or understanding … are or are likely to be … in competition with each other in relation to … the supply of those goods”. The reference to “those goods”, in that context, is a reference to the goods the price for which was likely to be maintained by the cartel provision.

47    As has already been indicated, it is necessary to have regard to various provisions of the Criminal Code to determine the elements of the relevant offences.

48    Subsection 3.1(1) of the Criminal Code provides that an offence consists of physical elements and fault elements.

49    Subsection 4.1(1) of the Criminal Code provides that a physical element of an offence may be: conduct; or a result of conduct; or a circumstance in which conduct, or a result of conduct, occurs. “Conduct” is defined in subs 4.1(2) as meaning “an act, an omission to perform an act or a state of affairs” and “engage in conduct” is defined as meaning “do an act; or omit to perform an act”.

50    Subsection 5.1(1) of the Criminal Code provides that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. Subsection 5.2(1) provides that a “person has intention with respect to conduct if he or she means to engage in that conduct” and subs 5.2(2) provides that a “person has intention with respect to a circumstance if he or she believes that it exists or will exist”. Section 5.3 provides that a “person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events”.

51    Section 5.6 of the Criminal Code deals with the situation where an offence provision does not specify the applicable fault element for a physical element of the offence. It provides that in such circumstances, intention is the fault element for a physical element that consists only of conduct, and recklessness is the fault element for a physical element that consists of a circumstance or result. It should also be noted in this context that subs 5.4(4) provides that where recklessness is the applicable fault element, proof of intention, knowledge or recklessness will satisfy that fault element.

52    Finally, as foreshadowed earlier, it is necessary to have regard to subss 11.2(2) to 11.2(5) which are incorporated by reference into the elements of any offence taken to be committed by reason of subs 79(1)(a) of the Competition Act by reason of subs 79(1A). Subsections 11.2(2) to 11.2(5) of the Criminal Code deal with the elements of an offence which is taken to be committed because the accused aided, abetted, counselled or procured the commission of an offence by another person. They provide as follows:

(2)    For the person to be guilty:

(a)    the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b)    the offence must have been committed by the other person.

(3)    For the person to be guilty, the person must have intended that:

(a)    his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b)    his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

(3A)    Subsection (3) has effect subject to subsection (6).

(4)    A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:

(a)    terminated his or her involvement; and

(b)    took all reasonable steps to prevent the commission of the offence.

(5)    A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.

53    Having addressed the relevant statutory provisions, it is now possible to state the elements of the offences which are the subject of the first three charges in the indictment.

Elements of the offence the subject of charges 1 and 2

54    Charges 1 and 2, which are charges against Country Care and Mr Hogan respectively, may conveniently be dealt with together as they are in essentially the same terms. That is no doubt because the prosecution alleges that Mr Hogan’s conduct, and his state of mind while engaging in that conduct, can be attributed to Country Care by reason of s 84 of the Competition Act.

Summary

55    The offence the subject of charges 1 and 2 is the offence of attempting to induce a person to contravene a cartel offence provision contrary to subs 44ZZRF(1) of the Competition Act by virtue of subs 79(1)(b) of the Competition Act. In summary, that offence has the following four elements:

(1)    The accused engaged in conduct which amounted to an attempt to induce Country Care Group members to enter into an arrangement or arrive at an understanding (physical element: conduct).

(2)    The accused intended to engage in that conduct: that is, they intended to attempt to induce Country Care Group members to enter into an arrangement or arrive at an understanding (fault element: intention).

(3)    The arrangement or understanding that the accused attempted to induce Country Care Group members to enter into or arrive at contained a cartel provision (physical element: circumstance).

(4)    The accused knew or believed that circumstance: that is, that the arrangement or understanding that they attempted to induce Country Care Group members to enter into or arrive at contained a cartel provision (fault element: knowledge or belief).

56    It is necessary to provide some elaboration in respect of each of these four elements.

First element – Physical element: conduct

57    The first element is that the accused, Country Care and Mr Hogan, attempted to induce a person to contravene a cartel offence provision. The relevant cartel offence provision is subs 44ZZRF(1) of the Competition Act. This element is a physical element of the offence consisting of conduct; that is, doing an act or acts: subss 4.1(1)(a) and (2) of the Criminal Code. It may conveniently be referred to as the conduct element of the offence.

58    In practical terms, to make out the conduct element, the prosecution will be required to prove that Mr Hogan did an act, or engaged in acts, which amounted to an attempt to induce a person or persons, Country Care Group members, to do something which would constitute the relevant physical element of the offence in subs 44ZZRF(1). That physical element is making a contract or arrangement, or arriving at an understanding: subs 44ZZRF(1)(a). Thus, the prosecution will be required to prove that the accused engaged in conduct which amounted to an attempt to induce Country Care Group members to make an arrangement, or arrive at an understanding.

59    It should perhaps be noted, in the context of the conduct element, that it may be accepted that, insofar as the conduct of the accused involved an attempt, the prosecution will have to prove that the relevant conduct was more than merely “preparatory” to the inducement to contravene the relevant cartel offence provision. Subsection 11.1(2) of the Criminal Code provides that for a person to be guilty of the offence of attempting to commit an offence, “the person’s conduct must be more than merely preparatory to the commission of the offence”. As was noted earlier, subs 79(1A) of the Competition Act provides that subss 11.2(2) to (5) apply to subs 79(1)(a) of the Competition Act, which relates to a person attempting to contravene a cartel offence provision, but does not provide that those provisions of the Criminal Code apply to subs 79(1)(b), insofar as that paragraph relates to a person inducing, or attempting to induce, a person to contravene a cartel offence provision. That may have been a legislative oversight. Whether that is so or not, the better view, based on common law authorities concerning offences involving attempt, would suggest that it would nevertheless be incumbent on the prosecution to prove that the relevant conduct was more than merely preparatory: see, for example, Britten v Alpogut [1987] VR 929 at 932.

60    It should also be noted in relation to the conduct element that there is a considerable body of case law concerning the meaning of “arrangement” and “understanding” in the context of restrictive trade practices. It is unnecessary to attempt any comprehensive analysis of that case law for the purposes of resolving the issues that arise on this appeal. It suffices to note that it is well established that a core element of both an arrangement and an understanding is that there must be some “meeting of the minds” of those who are said to be party to the arrangement or understanding, or some consensus as to what is to be done or not to be done. Both an arrangement and an understanding require that at least one party assume an obligation, or give an assurance or an undertaking, that they will act in a particular way; a mere expectation as a matter of fact that a party will act in a certain way is not enough: Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291; Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 92 FCR 375 at [141]; Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236 at [79]; Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45].

Second element – Fault element: intention

61    The second element is the fault element for the first physical element. As that element is a physical element consisting of conduct, the relevant fault element is intention, because the offence provision does not relevantly specify a fault element for that physical element: subs 5.6(1) of the Criminal Code. The prosecution must accordingly prove that Mr Hogan (and through him Country Care) intended, or “mean[t] to” (subs 5.2(1) of the Criminal Code) engage in the conduct which amounted to an attempt to induce Country Care Group members to enter into an arrangement, or arrive at an understanding.

Third element – Physical element: circumstance

62    The third element is that the arrangement or understanding that Mr Hogan attempted to induce Country Care members to enter into or arrive at contained a cartel provision. This element is a physical element consisting of a circumstance. It corresponds with the physical element consisting of a circumstance in subs 44ZZRF(1)(b) of the Competition Act. This element may conveniently be referred to as the circumstance element.

63    To make out the circumstance element the prosecutor will have to prove that the relevant arrangement or understanding contained a provision which, relevantly, satisfied both the purpose/effect condition set out in subs 44ZZRD(2) of the Competition Act and the competition condition set out in subs 44ZZRD(4) of the Competition Act. Having regard to the way the prosecution case has now been particularised, the prosecutor will have to prove, in simple terms, that the arrangement or understanding contained a provision the likely effect of which would have been to maintain the prices of goods subject to the Tender that were the subject of competition between at least two Country Care Group members who were proposed parties to the relevant arrangement or understanding, or between at least one of those members and Country Care.

Fourth element – Fault element: knowledge or belief

64    The fourth element is the fault element for the third element, the circumstance element. Where the relevant offence is the offence of contravening subs 44ZZRF(1) of the Competition Act, subs 44ZZRF(2) expressly provides that the fault element for paragraph (1)(b) of s 44ZZRF (that is, the circumstance element) is knowledge or belief. That would suggest that where, as is the case with charges 1 and 2, the relevant offence is an offence of contravening subs 44ZZRF(1), by virtue of s 79(1)(b) of the Competition Act, by inducing, or attempting to induce, a person to contravene subs 44ZZRF(1), the relevant fault element corresponding with the circumstance element is also knowledge or belief.

65    If, on the other hand, subs 44ZZRF(2) cannot properly be construed as specifying the fault element for the circumstance element of the offence of contravening subs 44ZZRF(1) by attempting to induce a person or persons to contravene that provision, it would follow that the fault element for the circumstance element of such an offence is recklessness: subs 5.6(2) of the Criminal Code. A person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk: subs 5.4(1) of the Criminal Code. Subsection 5.4(4) of the Criminal Code provides, however, that if recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. It should also be noted, in that context, that subs 5.2(2) of the Criminal Code provides that a person has intention with respect to a circumstance if he or she believes that it exists or will exist.

66    In all the circumstances, the preferable construction of the relevant provisions is that subs 44ZZRF(2) does specify the fault element for the circumstance element of the offences the subject of charges 1 and 2. That is essentially because the circumstance element for such an offence is the same as the circumstance of an offence of contravening subs 44ZZRF(1). The corresponding fault elements should accordingly be the same. The relevant fault element for the circumstance element is therefore knowledge or belief.

67    Therefore, to make out this element of the offence, the prosecution must prove that Mr Hogan (and through him, Country Care) knew or believed that the arrangement or understanding that the accused was attempting to induce Country Care members to enter into or arrive at, contained a cartel provision. In the circumstances of this case, that means that the prosecution will be required to prove that at the time Mr Hogan attempted to induce Country Care Group members to make an arrangement, or enter into an understanding, Mr Hogan knew or believed that the relevant arrangement or understanding contained a provision the likely effect of which would have been to maintain the prices of goods sold to the general public that were the subject of competition between at least two Country Care Group members. It should perhaps be reiterated, in this context, that s 5.3 of the Criminal Code provides that a person has knowledge of a circumstance if “he or she is aware that [the circumstance] exists or will exist in the ordinary course of events”.

The elements of the offence the subject of charge 3

68    The offence the subject of charge 3 in the indictment is the offence of aiding, abetting, counselling or procuring a person, Mr Hogan, to commit the offence of attempting to induce a person or persons to contravene a cartel offence provision; that is, the offence which is the subject of charge 2. That offence has two key elements.

69    The first element is that the accused, Mr Harrison, engaged in conduct which in fact aided, abetted, counselled or procured the commission of the offence by the other person, Mr Hogan: subs 11.2(2)(a) of the Criminal Code. The prosecution would be required to prove, in the circumstances of this case, that Mr Harrison engaged in conduct which in fact aided, abetted, counselled or procured Mr Hogan’s conduct in attempting to induce members of the Country Care Group to enter into an arrangement or understanding.

70    The second element is that Mr Harrison intended that his conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type committed by Mr Hogan; or that his conduct would aid, abet, counsel or procure the commission of an offence and had been reckless about the commission of the offence (including its fault elements) that Mr Hogan committed: subs 11.2(3)(a) and (b) of the Criminal Code.

71    Dealing with the first of those alternatives, the prosecution would have to prove that Mr Harrison intended that his conduct would aid, abet, counsel or procure Mr Hogan to commit an offence “of the [same] type” as the offence the subject of charge 2, including the fault elements of that offence. The physical and fault elements of the offence in charge 2 were considered earlier. In simple terms, the prosecution would have to prove that Mr Harrison intended that his conduct would aid, abet, counsel or procure Mr Hogan to commit an offence the elements of which included intentionally attempting to procure persons to enter into an arrangement or arrive at an understanding, with knowledge or a belief that the arrangement or understanding contained a provision which was likely to have the effect of maintaining the prices of goods supplied by at least two of the parties to the arrangement or understanding. That would, as a practical matter, require proof that Mr Harrison knew or believed that the relevant arrangement or understanding contained such a provision.

72    As for the second of the alternatives, the prosecution would have to prove that Mr Harrison intended that his conduct would aid, abet, counsel or procure the commission of an offence by Mr Hogan and had been reckless about the commission of the offence (including its fault elements) that Mr Hogan in fact committed. That means that the prosecution would not need to prove that Mr Harrison intended that his conduct would aid, abet, counsel or procure the commission of the offence actually committed by Mr Hogan, or even an offence “of the type” committed by Mr Hogan. Rather, it would be necessary for the prosecution to prove that Mr Harrison intended that his conduct would aid, abet, counsel or procure the commission of an offence by Mr Hogan, that he was aware of a substantial risk that Mr Hogan would commit an offence containing the elements of the offence committed by Mr Hogan, and that it was unjustifiable to take that risk having regard to the circumstances known to him: see s 5.4 of the Criminal Code concerning recklessness.

73    It should also be noted that for Mr Harrison to be found guilty, it must also be proved that Mr Hogan committed the offence the subject of charge 2: subs 11.2(2)(b) of the Criminal Code.

“Alternative pathways” and the need for unanimity directions

74    The contention by the accused that any trial involving charges 1 to 3 would be overly complex and thereby oppressive and unfair to them hinged on the proposition that, having regard to the way the prosecutor had particularised those charges, there were potentially thousands of potential “alternative pathways” to their guilt. Indeed, before the trial judge, the accused went so far as to contend that there were more than three million alternative pathways. It was submitted that the trial judge in those circumstances would be required to give “extended unanimity directions” in respect of the alternative pathways.

75    It is necessary, before addressing those contentions, to briefly address the relevant principles concerning the types of cases where a trial judge is required to give unanimity directions in relation to alternative pathways to guilt. For reasons that will become apparent, however, it is unnecessary to give a lengthy dissertation on that topic.

Relevant principles

76    The question whether a trial judge may be required to give some form of unanimity direction may arise where one offence is charged, but having regard to the particular elements of the offence and the evidence adduced, the jury has or may be presented with different routes or pathways to determine guilt. The question in such a case is whether the jury must be directed that they must not only be unanimous as to the accused’s guilt, but also unanimous as to the route or pathway by which that verdict was reached.

77    The authorities concerning the need for unanimity directions tend to distinguish between two types of cases where the issue has arisen. The first type of case is where the prosecution advances alternative legal formulations of liability, but those alternative legal formulations are based on the same, or substantially the same, facts. The typical cases where this arises are cases where the prosecution case relies on the same facts to allege either murder or manslaughter. In such a case there is generally no need for a unanimity direction; see for example R v Cramp (1999) 30 MVR 9; 110 A Crim R 198. The accused did not contend that the prosecution case in respect of charges 1 to 3 advanced alternative legal formulations of liability. They accordingly did not suggest that this case fell to be determined in accordance with the principles expounded in Cramp and like cases.

78    The second type of case arises where there are said to be alternative factual bases for liability. The typical case where this issue arises is where the accused is charged with obtaining a benefit by deception, or a similar offence, and the prosecution relies on a number of discrete particulars to prove the deception and any one of those particulars would be sufficient to prove that element. In those circumstances, the need for any form of unanimity direction will depend on the nature of the charge and the factual issues presented by the evidence having regard to the way the prosecution and defence put their respective cases.

79    In R v Walsh (2002) 131 A Crim R 299; VSCA 98, the principles applicable in this type of case were neatly summarised by Phillips and Buchanan JJA (Ormiston JA agreeing) in the following terms (at [57]):

The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.

80    This statement of principle in Walsh has been applied or cited with approval by the High Court and numerous intermediate courts of appeal: Lane v The Queen (2018) 357 ALR 1; 92 ALJR 689 at [45]; Magnus v R (2013) 41 VR 612; VSCA 163 at [32] and the cases cited at [33]; Pratten v R [2014] NSWCCA 117 at [45]-[46] and the cases cited at [47].

81    In Magnus (at [46]-[47]), the Victorian Court of Appeal emphasised that the issue turned not only on the legal elements of the offence, but also on the way both the prosecution and defence had put their case and the live factual issues at the conclusion of the evidence:

What elements in the particular case are essential to criminal liability and thus require unanimity is, as Elias CJ observed in R v Mead “a practical question, not a technical one”. The essential points upon which the jury must agree extend beyond the statutory elements. What must be agreed turns not only upon the legal elements of the offence but also upon the factual elements essential to the case advanced for the prosecution and defence. Not only must there be unanimity as to the actus reus of the offence, but the elements must be “anchored to the facts relied upon by the prosecution as the basis of liability and put in contention by the defence. Without such agreement there is no common foundation for the verdict.” The jury verdict will not be acceptable if “based upon quite disparate findings relating to the very foundations upon which the verdict rests”.

Particulars contained in a charge ensure that an accused is given notice of the case against him. They are likely to assist in identifying essential ingredients of the case upon which jury unanimity will be required. Where there are multiple particulars, each of which may be sufficient to sustain the charge, and where the evidence leaves open the possibility of a finding that only one or some of the particulars have been established, a direction as to the need for unanimity will be required. This principle, when applied in the case of fraud charges with multiple particulars, any of which could sustain a guilty verdict, would require a unanimous finding as to the particular deceit practised.

(Footnotes omitted.)

82    The arguments raised by the accused in this case appear to be based on the apparent contention that the elements of the offences in charges 1 to 3, and the way the prosecutor has particularised the prosecution case, puts those charges within the second category of case; the sort of case considered in Walsh, Magnus and Pratten. While the submissions advanced by the accused relied heavily on the decision of the High Court in Lane, that case primarily concerned the application of the proviso in subs 6(1) of the Criminal Appeal Act 1912 (NSW) and involved circumstances and a scenario far removed from the circumstances of this case.

83    Unanimity directions of the sort considered in Walsh, Magnus and Pratten are sometimes referred to as extended unanimity directions. For convenience we will adopt that terminology. The accused contended that extended unanimity directions were required in respect of two of the four elements of the charges: the conduct element and the circumstance element. It is necessary to consider separately whether extended unanimity directions might be required in relation to those two elements. If such directions may be required, the next issue is whether it necessarily follows that those directions, or the trial generally, will be so complex as to be oppressive and unfair to the accused.

The need for extended unanimity directions in relation to the conduct element

84    As discussed in more detail earlier, the conduct element of charges 1 and 2 requires proof that Mr Hogan (and through him Country Care) engaged in conduct which amounted to an attempt by him to induce members in the Country Care Group to make an arrangement or arrive at an understanding. The conduct element of charge 3 is, in substance, that Mr Harrison engaged in conduct which aided, abetted, counselled or procured Mr Hogan’s conduct.

85    The issue as to whether some form of extended unanimity direction will be required in relation to these conduct elements essentially arose as a result of the way the prosecutor initially characterised the prosecution case in relation to those elements. The prosecutor subsequently resiled from or retracted that characterisation. The circumstances in which that occurred are set out at length in the trial judge’s reasons. It is unnecessary to rehearse those circumstances or to further dwell on how or why they came about.

86    The prosecutor particularised the prosecution case in relation to the conduct element as relying on 12 “events” or “episodes” that occurred between 2014 and April 2016. In general terms, those 12 events or episodes fell into two categories. The first category comprised the statements that Mr Hogan was alleged to have made to some of the Country Care Group members at various conferences or meetings during that period. Those statements were referred to earlier in the summary of the prosecution’s factual case. The second comprised the alleged actions of Mr Hogan and Mr Harrison in drafting proposed contracts to be entered into by Country Care Group members and sending drafts of those contracts to the members. Those actions were also summarised earlier.

87    Significantly, the prosecutor initially characterised or put the prosecution case as being that any one of those 12 events or episodes was sufficient to establish the conduct element of the charges. It is perhaps not difficult to see why or how, in those circumstances, the accused approached the prosecution case on the basis that an extended unanimity direction would be required in relation to the conduct element. The prosecutor’s initial characterisation of the conduct element appeared to put the case squarely within the principles considered in Walsh and Magnus. Indeed, the prosecutor appeared to concede or accept that such a direction would be required.

88    Subsequently, however, the prosecutor “corrected” the position or stance that had previously been taken and withdrew the assertion that any one of the 12 particularised events or episodes would be sufficient to make out the conduct element. Instead, the prosecutor characterised those events or episodes, taken in combination, as establishing “a single, continuous course of conduct in attempting to induce ‘members’ of the Country Care Group to contravene a cartel offence provision”. The prosecutor also withdrew the concession concerning the need for an extended unanimity direction, essentially because it was no longer asserted that any one of the events was sufficient to establish the conduct element. The prosecutor made it clear that the prosecution case was that there was only one attempt to induce, not 12 or any other number of attempts.

89    The trial judge accepted the prosecutor’s contention that there was no need for an extended unanimity direction in relation to the conduct element having regard to the way the prosecution case in relation to that element was now particularised or characterised. His Honour stated that he could “see no basis for requiring that the jury be unanimous as to whether any particular single event relied upon to prove the alleged course of conduct and thereby the conduct element to be relied upon by the prosecutor took place, or had the character to be ascribed to it”: CDPP v Country Care at [85]. His Honour noted, in that context, that the accused had not objected to the “course of conduct approach”. Nor, it might be added, did the accused submit, on the appeal, that the conduct element of the offence, the attempt, could not be proved by a course of conduct.

90    The trial judge characterised the 12 events as particulars which rose no higher than “a matter of evidence going to the conduct element” and rejected the contention that any of the events were “a link in a chain of reasoning in which an essential element or ingredient is embedded so as to require unanimity”: CDPP v Country Care at [87]. His Honour reasoned that it followed that “[e]ven if a particular strand of evidence by way of proof of one of the 12 events may be considered strong enough by one juror, but not by another, that does not create an impermissible lack of unanimity going to an element or ingredient” of the offence: CDPP v Country Care at [87]. His Honour also found that the position was no different in relation to the conduct element of the offence alleged to have been committed by Mr Harrison: CDPP v Country Care at [88].

91    It is important to emphasise that while the trial judge’s conclusion that there was no need for an extended unanimity direction in relation to the conduct element was at times expressed in fairly emphatic or unqualified terms, his Honour plainly recognised that the circumstances might change having regard to how the factual issues might emerge at trial and having regard to the way the prosecutor and the accused put their respective cases in their closing addresses at trial. Indeed, his Honour noted that having regard to the way the evidence unfolded, the prosecutor may “pragmatically” decide that a particular event was “so indispensable to [the] final conclusion as to, itself, be required to be proven beyond reasonable doubt and thus found to be so unanimously by the jury”: CDPP v Country Care at [89]. Equally, his Honour noted that there was nothing to “preclude the accused from advancing a closing address argument that the overall satisfaction beyond reasonable doubt as to the conduct element cannot, as a practical matter, be reached without being satisfied to that standard as to any particular event or other fact in issue”: CDPP v Country Care at [90]. His Honour found, however, that “neither scenario seems particularly likely at this stage” but that it nevertheless “may yet emerge”: CDPP v Country Care at [91]. His Honour concluded, in effect, that the existence of that possibility did not mean that it could be concluded at this early stage that an extended unanimity direction in relation to the conduct element would necessarily be required.

92    The accused contended that the trial judge erred in concluding that there was no need for an extended unanimity direction in relation to the conduct element. They submitted that the trial judge did not deal with a number of issues which they contended complicated the prosecution case concerning the conduct element, but instead “dealt with the matter on the footing that the events in question were merely factual matters of no complexity which were background to some ultimately factual conclusion, rather than themselves raising distinct and complex legal and analytical issues in competition law”. According to the accused, the approach taken by the trial judge “misapprehend[ed] the nature of the issues, both legal and factual, that arise in relation to the different events”.

93    The “issues” that the accused contended the trial judge ignored included the fact that the 12 events were “disparate”. In their submission, the legal and factual issues that would arise in relation to Mr Hogan’s presentations at conferences were “quite different” to the issues that would arise in relation to the statements made by Mr Hogan at “bilateral meetings” with individual members and different again to the issues that would arise in relation to the events that involved “a bilateral communication enclosing a bilateral draft contract”. Further complicating issues were said to arise from the fact that there was no evidence that Mr Hogan had contemplated the need for a formal contract at the time he first addressed members at the conference held in St Kilda in May 2014 and from the fact that the “membership” changed over time because some members ceased trading and new members came on the scene. In those circumstances, the accused contended “it is necessary for there to be unanimity as to the particular attempt, the particular basis on which any relevant arrangement or understanding, as those terms as understood in competition law, was sought to be induced, and who the jury considers the parties to the alleged understanding or arrangement would have been”.

94    We do not agree that the trial judge erred in rejecting the contentions advanced by the accused in relation to the need for an extended unanimity direction in relation to the conduct element. The trial judge was correct to reject the contention that it must necessarily be concluded at this early stage that an extended unanimity direction concerning the conduct element will need to be given at the trial. That is not to say that some form of extended unanimity direction might be required at trial having regard to the way the evidence and issues eventually unfold. We seriously doubt, however, that if that indeed turns out to be the case, the extended unanimity direction will necessarily be complex or difficult for the jury to comprehend, let alone that it will necessarily be of such “impossible or oppressive complexity” that it would provide any basis for severing charges 1 to 3 from the indictment.

95    As the authorities referred to earlier make plain, the need for a specific or extended unanimity direction in relation to an offence, or element of an offence, can only be assessed and determined at the trial after the evidence has been adduced and the factual issues have crystallised having regard to the way the prosecutor and the accused have put their respective cases in relation to those issues. The issue cannot necessarily be determined simply from the nature of the charge and the way the prosecutor has particularised or characterised the prosecution case.

96    In this case, it might perhaps have been confidently predicted that an extended unanimity direction of some sort would have been required had the prosecutor persisted with the contention that any one of the 12 events would have made out the conduct element of the offence. Once that contention was withdrawn, however, it was not and is not possible to predict whether any unanimity direction concerning the conduct element will be required, or what form any such direction might take. It is not known precisely what the evidence will be in relation to any of the 12 events, or whether that evidence will be contested or disputed, or whether Mr Hogan or Mr Harrison will themselves give evidence concerning any of those events, or what that evidence might be. Nor is it possible to predict with any certainty what arguments may be advanced by the prosecutor and the accused in relation to the evidence concerning the 12 events and the issues thrown up by that evidence. It must necessarily follow that it is not possible to predict at this stage whether some form of extended unanimity direction will be required in relation to the conduct element.

97    It should perhaps be emphasised in this context that the prosecutor’s present characterisation of the 12 events as constituting a course of conduct is not determinative of the issue. The fact that the prosecutor might characterise the events in that way does not mean that the events are now, or will be, in the context of all the evidence, properly so characterised. As we have sought to emphasise, whether the 12 events can properly be characterised as a course of events, as opposed to a series of separate events, each of which might constitute an attempt, can only be determined by the trial judge at the trial when all the evidence has been adduced and the respective arguments concerning it are considered.

98    As for the “issues” that the accused contended the trial judge ignored in addressing the question whether an extended unanimity direction might be required in relation to the conduct element, we doubt that the 12 events could properly be seen to be quite as disparate or different as the accused contended. The statements allegedly made by Mr Hogan to some Country Care Group members at various conferences and meetings would appear, at first blush at least, to have a common underlying theme or character. It is also doubtful that there is any clear or necessary disjunct between those statements and the later conduct relating to the drafting and dissemination of contracts which included a clause that, on the prosecution case, manifested an attempt to induce the members to commit to not advertising their products at prices below the prices at which Country Care had contracted with the Department to supply to beneficiaries of the Program. It may be that Mr Hogan did not envisage the need for a formal contract when he initially addressed some of the members at the St Kilda conference. The possible need for such a contract may, however, have become apparent or developed over time as Mr Hogan engaged with the members.

99    But these are issues that ultimately fall to be considered at the trial, both by the trial judge in framing the appropriate directions to the jury, and ultimately by the jury in determining whether the prosecutor has proved the conduct element of the offence. It suffices at this point to say that any disparity between the relevant events which may be revealed by the notice of case and the witness statements that the prosecutor has served, is not such that it compels the conclusion, at this early stage of the proceeding, that it is not open to the prosecutor to characterise the events as comprising a course of conduct. The same can be said of the other issues raised by the accused in this context. We are, for example, unable to see how the fact that the members of the Country Care Group changed over time bears on the question whether the events relied on by the prosecutor can properly be characterised as a course of conduct. Nor are we able to see any other basis upon which it can be contended, at this stage at least, that it is not open to the prosecutor to characterise the 12 events as a course of conduct – a number or series of acts done over time which, considered together, are capable of establishing that Mr Hogan (and through him Country Care) attempted to induce members of the Country Care Group to make an arrangement, or enter into an understanding.

100    We are equally unable to see any basis upon which it can be contended that charges 1 to 3 of the indictment are latently duplicitous, which in a sense is the corollary of a finding that it is not open to characterise the events as a course of conduct. The charges could not be considered to be latently duplicitous unless it could be said that the evidence to be led by the prosecution in respect of those charges disclosed a number of separate offences of attempting to induce the members to make an arrangement or enter into an understanding: cf Johnson v Miller (1937) 59 CLR 467 at 487. That has not been shown to be the case here. It cannot be concluded, at least at this early stage, that any one of the 12 events would itself constitute an attempt to induce. It should also be noted in this context that the accused did not seek to quash charges 1 to 3 on the basis that they were latently duplicitous. Nor did they seek an order that required the prosecutor to charge them separately in respect of some or all of the 12 events.

101    We also doubt that the legal and factual issues that arise from the way the prosecutor has particularised the prosecution case in respect of the conduct element are nearly so complex as the accused contend. Nor do we accept that those issues will inevitably compel the trial judge to give an extended unanimity direction in the complex terms suggested by the accused.

102    It may readily be accepted that the trial judge will need to give the jury careful directions concerning the meaning of an “arrangement” and “understanding” in the context of the charges. Those directions will no doubt draw on the considerable case law on that topic. It does not follow, as the accused appear to contend, that the directions in that regard will have to form part of an extended unanimity direction. Nor does it necessarily follow that the trial judge will have to give a direction to the effect that the jury must be unanimous as to the “particular basis” upon which they may find that there was an attempt to induce the members to make an arrangement or enter into an understanding.

103    Likewise, it is likely that the trial judge’s summing up will need to address the evidence to the extent that it suggests that the entities or individuals that comprised the Country Care Group members changed over time. We doubt, however, that the trial judge will necessarily be required to direct the jury that they must be unanimous as to exactly which individuals or entities Country Care and Mr Hogan attempted to induce to make the alleged arrangement, or to enter into the alleged understanding.

104    It may readily be accepted that there are some potentially complex legal and factual issues that are likely to arise in the context of the conduct element of charges 1 to 3 in the indictment. As already indicated, the trial judge may ultimately have to consider giving some form of extended unanimity direction to the jury. It is, however, by no means inevitable that that will be the case. Indeed, it could not even be said at this stage that it was likely. Whether it does become necessary will depend on how the evidence unfolds and how the prosecutor and accused ultimately put their respective cases in relation to this element.

105    Perhaps more significantly, even if it ultimately becomes necessary for the trial judge to give some form of extended unanimity direction in relation to the conduct element, there is no reason to think that the direction will be so complex that the jury would be unable to comprehend it, or that it would otherwise give rise to any oppression or unfairness to the accused. That was effectively conceded by counsel for Country Care and Mr Hogan in the course of the appeal. Counsel conceded that the need for an extended unanimity direction in relation to the conduct element alone would not result in oppression and would not justify severance or a stay. It was conceded that the need for such a direction would only be oppressive if there was also a need for a complex extended unanimity direction in relation to the circumstance element, in particular in relation to the relevant products. That issue is considered later in these reasons.

106    The findings that have been made concerning the need, or potential need, for a specific or extended unanimity direction in relation to the conduct element of the offences which are the subject of charges 1 to 3 in the indictment effectively resolve grounds 1 to 4 of the notice of appeal filed by Mr Hogan and Country Care and grounds 1 to 5 of the notice of appeal filed by Mr Harrison in favour of the prosecutor. Save for ground 3 of Mr Harrison’s notice of appeal, which was not pressed, each of those grounds relate, in one way or another, to the trial judge’s finding that it cannot be concluded, at this stage at least, that an extended unanimity direction will necessarily be required to be given in relation to the conduct element, let alone a direction of “impossible or oppressive complexity”. For the reasons that have been given, the trial judge did not err in so finding.

The need for extended unanimity directions in relation to the circumstance element

107    The prosecution case in respect of the circumstance element of charges 1 to 3 has narrowed considerably since the interlocutory application was argued before the trial judge. The case was narrowed further still, at least in one important respect, during this appeal.

108    The prosecutor initially particularised the prosecution case in terms which indicated that the prosecutor would seek to prove that the relevant cartel provision satisfied the purpose/effect condition in four alternative ways: first, on the basis that the alleged cartel provision had a substantial purpose of maintaining the prices that Country Care Group members invoiced Country Care for goods they supplied to eligible beneficiaries under the Tender; second, on the basis that the alleged cartel provision had a substantial purpose of maintaining the prices at which Country Care Group members supplied goods to the general public; third, on the basis that, if implemented, the alleged cartel provision would have had the likely effect of maintaining the prices that Country Care Group members invoiced Country Care for goods they supplied to eligible beneficiaries under the Tender; and fourth, on the basis that, if implemented, the alleged cartel provision would have had the likely effect of maintaining the prices that Country Care Group members supplied goods to the general public.

109    The prosecutor’s particulars also initially indicated that the competition condition element could be made out on the basis that at least two of the intended parties to the arrangement or understanding – that is, at least two Country Care Group members – were in competition with each other in relation to the supply of the “types of goods supplied” under the Tender to both the general public and as “subcontractors” to Country Care under the Tender.

110    The fact that the prosecutor contended that the circumstance element could be made out in these alternative ways undoubtedly added a significant element of complexity to the prosecution case. The trial judge noted that the manner in which the prosecutor had particularised the circumstance element made the case “more complicated than it needs to be”, but nonetheless held that he was “not sufficiently satisfied that this issue of itself stands in the way of counts 1 to 3 remaining on the indictment and proceeding to the trial”: CDPP v Country Care at [97]-[98]. His Honour did, however, direct the prosecutor to “give serious consideration as to whether it is really necessary to maintain all four alternatives”: CDPP v Country Care at [98].

111    The serious consideration that the prosecutor no doubt gave to the issue raised by the trial judge led to a significant narrowing of the particulars of the circumstance element. As was outlined earlier, the prosecution case in relation to the purpose/effect component of the circumstance element is now limited to an “effects case” in relation to the prices at which Country Care Group members sold the relevant goods to the general public: that if implemented, the alleged cartel provision would have had the likely effect of maintaining the prices at which Country Care Group members supplied those goods to the general public. The relevant goods, in that context, are said to be goods that Country Care had contracted to sell under the Tender. The general public was said to be individuals who acquired such products for their own use and were not eligible beneficiaries for the purposes of the Tender and nursing homes and other health care facilities which acquired such products for use by end users within their facilities.

112    As for the competition condition component of the circumstance element, the prosecution case is now confined to alleging that at least two or more members of the Country Care Group were in competition with each other in relation to the “types of goods supplied” under the Tender to the general public. It is no longer part of the prosecution case that at least two of the parties to the alleged arrangement or understanding were in competition with each other in relation to the supply of the types of goods they supplied as subcontractors to Country Care under the Tender.

113    It is important to emphasise, in this context, that to satisfy both the purpose/effect condition and the competition condition, the relevant goods that are alleged to be the subject of competition between the two or more members of the Country Care Group must be goods the price of which was likely to have been maintained by the alleged cartel provision.

114    The narrowing of the prosecution case in relation to the circumstance element to an effects case in relation to relevant goods sold to the general public significantly reduced the potential complexity of charges 1 to 3. Before that, there were four alternative ways in which the purpose/effect condition could be made out. It was common ground that, in those circumstances, there was likely to be a need for an extended unanimity direction in relation to those alternatives. The narrowing of the prosecution case to an effects case only in relation to the price of goods supplied to the general public meant that there was only one “pathway” in relation to the purpose/effect condition. There was accordingly no need for any extended unanimity direction in relation to it.

115    That effectively leaves only one potential complicating factor outstanding in relation to the circumstance element. That complicating factor arises because of the very large number of products that were the subject of the Tender; anywhere between about 2,500 and about 8,500 products at any one time. That in itself does not give rise to any particular issue. What is significant, however, is that the price of at least some of the products that were the subject of the Tender may not have been maintained, or even likely to have been maintained, by the alleged cartel provision, if implemented. That was so for a number of reasons, including, for example, that some of the products may not have been the subject of price advertising by any of the members of the Country Care Group in any event.

116    Perhaps more significantly, however, it would also appear to be fairly clear, and was in any event conceded by the prosecutor, that not all of the products may have been the subject of competition between members of the Country Care Group, or between the members and Country Care. That is so for at least two reasons: first, because not every member sold all of the products that were the subject of the Tender to the general public; and second, because many of the members only sold products in specific regions. A member who sold a particular product in regional Victoria, for example, could hardly be said to be in competition with another member who either did not sell that product, or sold it only in another State or Territory.

117    This particular feature of the prosecution case raised at least three important questions: first, was the prosecutor required to provide both particulars of the members who were said to be in competition with each other and Country Care in relation to sales to the public and particulars of the products in respect of which they were said to be in competition; second, was the prosecutor required to confine its case in respect of the circumstance element to those particular members and those particular goods; and third, what, if any, extended unanimity directions may need to be given to the jury in relation to the circumstance element in light of those particulars?

118    The accused contended that the prosecutor was required to provide proper particulars of both the members who were said to be in competition with each other and Country Care in relation to sales to the public, as well as particulars of the products in respect of which those members were said to be in competition. They also contended that extended unanimity directions would inevitably be required in relation to the circumstance element and that, if the number of members and the number of products relied on by the prosecutor were not limited and manageable, the unanimity directions that would be required would be impossibly complex and therefore oppressive. That contention ultimately formed one of the main bases of the application to sever charges 1 to 3 from the indictment.

119    The prosecutor did provide some particulars of the circumstance element which addressed this issue. Those particulars were contained in paragraph 85 and schedule 6 to the notice of case. Schedule 6 identified a number of particular stores operated by Country Care and 15 particular Country Group members who were said to be in competition with each other in certain specified geographical areas. Schedule 6 also identified a number of particular “top selling” products, or types of products, that were sold by those Country Care stores and those 15 particular members. There were about 10 such products, or types of products. It was said that the Country Care stores and the 15 members competed with each other in relation to the supply of those products in the specified geographical regions.

120    Before the trial judge, the prosecutor appears to have agreed that some form of unanimity direction would be required in relation to the jury’s consideration of the alleged “competitive relationships” in the context of the circumstance element. The prosecutor also appears to have agreed, in that context, that the prosecution case in relation to the competitive relationships would be confined to alleging that two or more of the 15 members and the Country Care stores identified in schedule 6 were in competition with each other in relation to sales of products subject to the Tender to the general public. The trial judge appears to have agreed, in light of the prosecutor’s stance concerning the competitive relationships, that the general nature of the required extended unanimity direction would be that the jury would need to be unanimous about which of the identified Country Care stores and 15 Country Care Group members were in competition with each other: CDPP v Country Care at [103]. The trial judge also found that the extended unanimity direction in that regard would “be able to be given in a way that is not oppressive or unfair to the accused or the jury”: CDPP v Country Care at [104]. That finding is not the subject of any specific complaint on appeal.

121    The prosecutor did not, however, agree to confine the prosecution case to the specific products that had been identified in schedule 6. The prosecutor maintained that the jury would only need to be satisfied that two or more of the 15 identified members were in competition with each other, or with Country Care, in relation to goods that were subject to the Tender, and that it was unnecessary to identify the specific goods that were the subject of that competition. The prosecutor also contended that the jury would not need to be unanimous as to the specific goods which were the subject of that competition. It was said, in that context, that the specific products which had been identified in schedule 6 were simply examples of some of the products that were the subject of competition. The prosecutor’s stance in relation to the products detailed in schedule 6 was confirmed in a document subsequently furnished by the prosecutor pursuant to an order or direction made by the trial judge when the judgment was handed down.

122    The trial judge accepted the prosecutor’s submission that no further particularity was required in relation to the products that were alleged to be the subject of competition between Country Care and the members of the Country Care Group. That was because his Honour did not “discern [from the way the prosecutor had particularised the prosecution case] that the prosecutor’s case depends upon proof of competition descending to the detail of competition in relation to particular individual goods, such that a jury deliberation would be required at that level of detail, let alone that it would require a unanimity direction”: CDPP v Country Care at [121]. Importantly, however, the trial judge stated that, if he was wrong in so concluding, “the only basis for supporting a contrary conclusion would appear to be the very limited number of products referred to in schedule 6 … not to each and every individual one of the Tender Goods”; a scenario which fell “well short of advancing thousands of alternative pathways to a guilty verdict, requiring an impossible number of unanimity directions”: CDPP v Country Care at [121].

123    The accused contended that the trial judge’s finding that no unanimity direction was required in relation to the products that were alleged to be the subject of competition was wrong. They also contended that his Honour erred in finding that it was unnecessary for the prosecutor to identify the particular products that were alleged to be the subject of competition. The accused submitted, in that context, that it is “essential, for a case alleging an attempt to induce a price fixing provision …, to identify what would be the subject matter of the price fix”. That was said to be because satisfaction of the “competition” condition is not just a “question of whether or not two or more parties supply goods in the same market; it is whether or not two or more parties supply the goods, the price of which is likely to have been relevantly maintained, in competition with each other”. As for the trial judge’s finding that if a unanimity direction was required it would be limited to the goods referred to in schedule 6, the accused noted that the prosecution case, at that point, was not so confined.

124    The accused also contended that it was oppressive and unfair for the prosecutor not to confine the prosecution case in respect of the circumstance element to particular products. That was said to be the case for at least two reasons.

125    The first reason was that if the prosecution case was not so confined, the task for the trial judge in framing appropriate directions, and the task for the jury in comprehending those directions and the prosecution case generally, would be complex and “unmanageable”.

126    The second reason was said to be that if the prosecution case was not so confined, it would be effectively impossible for the accused to prepare their defence. It was said that if the prosecution case was confined to a manageable number of products, the accused would be able to embark on a “properly focused and targeted inquiry”, not only in relation to whether the prices of those products were likely to be maintained as a result of any provision of the alleged arrangement or understanding, but also in relation to whether two or more Country Care Group members sold any of those products to the general public in competition with each other, or in competition with Country Care. That would not be possible if the prosecutor did not confine the prosecution case to a manageable number of products. It would also be unfair if, during the course of the trial, the prosecutor was able to rely on products that were not those specifically identified in schedule 6.

127    It appeared to be implicit in the submissions advanced on behalf of the accused that, if the prosecutor did confine the prosecution case in relation to the circumstance element to the 15 entities and approximately 10 products that were identified in schedule 6, the case would not be oppressively complex or unmanageable. It also appeared to be implicit in the submissions of the accused that if the prosecutor so confined the prosecution case, the trial judge would be able to give comprehendible directions to the jury. Indeed, that was effectively conceded by counsel who appeared for Country Care and Mr Hogan during the course of the hearing of the appeal. Counsel conceded that if the prosecutor agreed to confine the prosecution case in relation to the circumstance element to the specific entities and products referred to in schedule 6, “it would be very complex, and it would require some detailed factual exploration”, but that it could not be said that the case would be so complex as to be unmanageable. While counsel for Mr Harrison did not make the same concession, neither did he submit that the confinement of the prosecution case would not have the same implications in Mr Harrison’s case.

128    The concession made by counsel for Country Care and Mr Hogan, or perhaps the exchanges that occurred between counsel and the Court that surrounded that concession, prompted what appeared to be yet another shift in the stance taken by the prosecutor concerning the particularisation of the prosecution case. While the prosecutor initially continued to defend the position that had been taken before the trial judge concerning the prosecution case in relation to the competition condition, and appeared to continue to resist confining the prosecution case in that regard to the specific products provided by way of example in schedule 6, that effectively changed on the second day of the hearing of the appeal. In the course of taking the Court through parts of schedule 6, the prosecutor “clarifie[d]” that the prosecution case in relation to the circumstance element would be confined to the products identified in schedule 6. The prosecutor confirmed that there would be no attempt at trial to rely on any product which was not included in schedule 6 to prove the competition condition component of the circumstance element.

129    That clarification or confirmation by the prosecutor appeared to effectively resolve the issue which had become the central focus of the appeal. It took away what had become the main basis upon which it was contended by the accused that, contrary to the findings of the trial judge, the prosecution case in respect of charges 1 to 3 would necessarily require such complex directions concerning unanimity that the trial would be oppressive and unfair. As was noted earlier, it had already been conceded by counsel for Country Care and Mr Hogan that the need for an extended unanimity direction in relation to the conduct element alone would not result in oppression and would not justify severance or a stay. It was also conceded that if the prosecution case in relation to the circumstance element was confined to the products identified in schedule 6, any extended unanimity direction in relation to the circumstance element would be “manageable”. Once it was confirmed that the prosecution case would be so confined, the contention that the prosecution case would require extended unanimity directions of “impossible or oppressive complexity” effectively fell away or became unsustainable. So too did any complaint that the trial was oppressive for any other reason.

130    Despite the prosecutor’s confirmation that it would confine the prosecution case in relation to the circumstance element to the 15 members and the approximately 10 products identified in schedule 6, and despite the apparent concession by the accused that the prosecution case against them would not be unmanageably complex and therefore oppressive if so confined, the accused appeared to maintain that there remained a number of outstanding issues or problems with the prosecution case. We do not propose to address all of the arguments raised by the accused in that context. Many of them involved arguments that were plainly not put to the trial judge and were outside the scope of the appeal. It is, however, necessary to say something further concerning the need for an extended unanimity direction concerning the products that were alleged to be the subject of competition and the nature or scope of any such direction if required.

131    The prosecutor maintained that the trial judge did not err in finding that no extended unanimity direction in relation to the products that were the subject of competition was required. Despite confirming that the prosecution case in relation to the circumstance element was limited to the approximately 10 products identified in schedule 6, the prosecutor did not concede that a extended unanimity direction was or might be required in relation to the jury’s findings relating to which of those products was the subject of competition. It is accordingly necessary to consider whether that finding, implicitly made by the trial judge, was erroneous as contended by the accused.

132    In our view, the trial judge’s finding that no extended unanimity direction in relation to the particular goods would be required was erroneous, if only because that finding is stated in unnecessarily emphatic or unqualified terms. We have little doubt, however, that this error was a product of the way the matter was argued before his Honour. It is fairly clear that the arguments that were put to his Honour in relation to this issue were not put with the same level of detail, precision or sophistication as they have been put to us.

133    For the reasons already given, whether an extended unanimity direction in relation to the circumstance element is required and, if so, what form that direction should take, can only be finally determined by the trial judge at the trial after the evidence has been adduced, the factual issues that arise from the evidence are apparent, and the respective positions of the prosecution and the accused in relation to those issues is known. That includes the determination of whether there needs to be an extended unanimity direction in relation to the products that are alleged to have been the subject of competition.

134    It was, in those circumstances, wrong for his Honour to find that there was no need for an extended unanimity direction essentially on the basis of the way the prosecutor had characterised the prosecution case. The way that a prosecutor may characterise the prosecution case may be important in some circumstances in determining whether an extended unanimity direction is required, but it is not necessarily determinative. It is necessary to also give close consideration to the legal elements of the offences and the facts and evidence relied upon by the prosecution to establish those elements. When that is done in this case, it is difficult to avoid the conclusion that it is at least possible, if not likely, that some form of unanimity direction may be required in relation to the product aspect of the circumstance element.

135    In the particular circumstances of this case, the circumstance element requires proof that at least two members of the Country Care Group (or Country Care and at least one such member) were in competition with each other in relation to the supply to the public of products subject to the Tender the price of which was likely to have been maintained by the alleged cartel provision. The prosecution, quite properly, has provided particulars of certain products that are alleged to have been both the subject of competition and subject to the likely price maintaining effect of the cartel provision. An extended unanimity direction is likely to be required because the circumstance element may be made out even if only some of those products are found to possess those qualities. It is doubtful that the prosecutor will put the prosecution case concerning the products that possessed those qualities on an all or nothing basis: cf Pratten at [74]-[76]. In those circumstances, a direction of the sort considered in Walsh, Magnus and Pratten is likely to be necessary. While the precise terms of the direction will be a matter for the trial judge having regard to the evidence adduced and issues raised at trial, in general terms, the jury may have to be directed that, to find that the circumstance element is made out, they must be unanimous as to the identity of at least two Country Care Group members who were in competition with each other (or at least one Country Care Group member who was in competition with Country Care) in relation to the supply to the general public of a particular product, or particular products, that were the subject of the Tender, the price of which was likely to be maintained by the alleged cartel provision.

136    Despite erring in concluding that no such direction would be required, the trial judge was nevertheless correct to find that if he was wrong and an extended unanimity direction of that sort was required, the direction would not be overly complex, let alone impossible. His Honour based that conclusion on the fact that there were only a limited number of products identified in schedule 6. It may be accepted that, at that point in time, the prosecutor had not limited its case in relation to the circumstance element to those particular products. The prosecutor has now confirmed that the prosecution case is so confined. As noted earlier, the accused effectively conceded that any extended unanimity direction concerning the products would not be impossibly complex or unmanageable if the prosecution case was confined to the products identified in schedule 6. Even without that concession, we would in any event conclude, as did the trial judge, that any extended unanimity direction that may be required in relation to this aspect of the prosecution case would not be so complex as to warrant charges 1 to 3 in the indictment being severed and stayed. Contrary to the contentions advanced on behalf of the accused, any such direction would not be of “impossible or oppressive complexity”.

137    In reaching that conclusion we have taken into account the likelihood that an extended unanimity direction will also be required in relation to the two or more entities who are alleged to have been in competition in relation to the supply of those products. It was, and is, common ground that such a direction was likely to be required. Common sense would suggest that the required directions in relation to both the products and the competitive entities would be able to be combined or consolidated. We have little doubt that once the evidence is adduced at trial and the relevant legal and factual issues concerning the circumstance element are apparent, the trial judge, properly assisted by the parties, will be able to fashion appropriate directions in relation to those issues in a form which is comprehendible by the jury and not of impossible or oppressive complexity.

138    We should also emphasise that the findings that we have made concerning the likely need for an extended unanimity direction in relation to the products relate only to the circumstance element of the relevant charges. At various points during the appeal the accused contended, or at least appeared to contend, that the prosecutor will be required to prove that the accused knew or intended that the price of specific products would be likely to be maintained by the alleged cartel provision and knew that specific entities competed in relation to those products. That is not the case. The submissions advanced by the accused in that regard tended to conflate the relevant circumstance element of the offence and the fault element that corresponds with that element.

139    As explained earlier, in the case of charges 1 and 2, the fault element in relation to the circumstance element is that Mr Hogan (and through him Country Care) knew or believed that the arrangement or understanding that he was attempting to induce Country Care members to enter into or arrive at contained a cartel provision. In the circumstances of this case, that means that the prosecution will be required to prove that, at the time he attempted to induce Country Care Group members to make or enter into the alleged arrangement or understanding, Mr Hogan knew or believed that the relevant arrangement or understanding contained a provision the likely effect of which would have been to maintain the prices of goods that were the subject of competition between at least two Country Care Group members.

140    It does not follow, however, that it must be proved that Mr Hogan turned his mind to any specific goods the price of which was likely to be maintained, or any specific members who were in competition in relation to those goods. While proof of the circumstance element will require proof that at least two specific Country Care Group members were in competition in respect of specific goods the price of which was likely to be maintained by the cartel provision, to prove the corresponding fault element it is not necessary for the prosecutor to prove that Mr Hogan knew or intended that the alleged cartel provision was likely to maintain the prices of those specific goods, or knew that specific Country Care Group members were in competition in relation to those goods.

141    To prove the relevant fault element, it would be open to the prosecutor to prove, by direct or circumstantial evidence, that by reason of his intimate knowledge of Country Care’s business, Mr Hogan knew or believed that the alleged cartel provision was likely to maintain the prices at which many of the main products that were the subject of the Tender were sold to members of the public and that at least some of the Country Care Group members competed in relation to those products in certain geographical areas. That would be sufficient to prove that Mr Hogan knew or believed that the alleged provision had the necessary qualities of a cartel provision. In saying this, we of course express no view one way or the other as to whether there is any such evidence.

142    It should also be noted in this context that the prosecutor’s confirmation that the prosecution case was limited to the specific entities and specific products identified in schedule 6 was specifically limited to the circumstance element. The prosecutor did not confine its case in respect of the corresponding fault element to those specific entities or products. Nor is there any basis for contending that the prosecution case can or should be so confined.

143    The confinement of the prosecution case in relation to the circumstance element also does not alter or affect the particulars of the cartel provision. The prosecution case is that the alleged cartel provision was in general terms. It was intended to apply to all “members” and all goods that Country Care contracted with the Department to sell under the Tender. The fact that the prosecutor will seek to prove that the alleged cartel provision satisfied the purpose/effect and competition conditions by reference to only certain specified goods and only certain specified members does not mean that the cartel provision was, in terms, limited to, or intended to be limited to, those specific goods and members.

144    The findings that we have made in relation to the need for an extended unanimity direction in relation to the circumstance element effectively dispose of grounds 5, 6 and 8 of Mr Hogan’s and Country Care’s notice of appeal and grounds 6, 7 and 9 of Mr Harrison’s notice of appeal. In short, while extended unanimity directions are likely to be required in relation to the circumstance element, having regard to the confinement of the prosecution case in relation to the circumstance element to the entities and products identified in schedule 6, the accused have failed to demonstrate that any such directions will be “impossible or oppressively complex” such as to warrant the severance and stay of charges 1 to 3 in the indictment. The trial judge was correct to so conclude.

145    Ground 6 of Mr Hogan’s and Country Care’s notice of appeal and ground 8 in Mr Harrison’s notice of appeal were not pressed.

The Jury Directions Act 2015 (Vic)

146    We should finally note that, in the context of the potential need for extended unanimity directions, the prosecutor drew the Court’s attention to various provisions of the Jury Directions Act 2015 (Vic). Those provisions included s 61 and s 62, which provide as follows:

61.    Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—

(a) the elements of the offence charged or an alternative offence; and

(b) the absence of any relevant defence.

62.    Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.

147    The Jury Directions Act will apply to the trial of the accused, which will take place in Victoria, by reason of subs 68(1) of the Judiciary Act 1903 (Cth).

148    The prosecutor appeared to suggest that the terms of s 61 and s 62 of the Jury Directions Act would somehow prevent the trial judge from giving extended unanimity directions should the circumstances otherwise suggest or require that such a direction be given. No detailed or considered submissions were advanced in that regard.

149    It is both unnecessary and undesirable for us to reach any concluded view on this issue. It is an issue that can only be addressed when the precise form of the required direction is clear and apparent. It is not an issue that can or should be determined in the abstract on the basis of a hypothetical direction. Nor is it an issue that should be determined in the absence of careful and considered submissions.

150    We would, however, venture the tentative view that the terms of s 61 and s 62 of the Jury Directions Act would not necessarily preclude the trial judge from giving any extended unanimity direction which was otherwise appropriate in the circumstances of the case. That is because such a direction is not a direction about a “matter” that must be proved beyond reasonable doubt. Rather, it is a direction about the need for unanimity about the precise basis upon which the jury is satisfied that the offence, or an element of it, has been proved beyond reasonable doubt. If, on the other hand, an extended unanimity direction could be said to be about a matter that must be proved beyond reasonable doubt, that matter nevertheless relates to the elements of the offence. It would accordingly not be precluded by s 62 of the Jury Directions Act.

151    If, as events transpire, the circumstances at trial are such that extended unanimity directions are required, we have little doubt that the trial judge will be able to fashion those directions in such a way that they will not be contrary to s 62 of the Jury Directions Act.

complexity and severance

152    The accused relied primarily on two cases in support of the contention that charges 1 to 3 should be severed: the decision of the Victorian Court of Appeal in R v Appleby (1996) 88 A Crim R 456; and the dissenting judgment of Nettle J in Hughes v The Queen (2017) 263 CLR 338.

153    In Appleby, the court upheld an appellant’s appeal against his conviction of 28 counts of theft and one count of obtaining a financial benefit by deception. The indictment on which the appellant was tried contained 95 counts. The appeal was upheld on the basis that the failure to sever the indictment resulted in a trial that unfairly prejudiced the appellant and was oppressive. Smith AJA, with whom Callaway JA and Southwell AJA agreed, considered (at 466) that “it would be very difficult for any jury to avoid thinking that with so many allegations of theft being brought there must be some truth in them” and that “[s]uch a massive presentment and the length of the trial would also place pressure on a jury to find the applicant guilty on some charges”. It was on that basis that the trial was said to be oppressive.

154    The accused submitted that those comments applied to this case by analogy. That submission was put mainly on the basis that the trial of the accused would inevitably require complex extended unanimity directions. It was said that the many alternative pathways to guilt in this case were analogous to multiple counts in an indictment. Reliance was also placed on what was said to be the enormous complexities of this case generally.

155    The observations made in Appleby do not apply to the circumstances of this case, by analogy or otherwise. While extended unanimity directions are likely to be required in relation to the circumstance element, for the reasons already given, those directions are unlikely to be particularly complex, and certainly not of “impossible or oppressive complexity” as the accused contended. We also doubt that the trial will be nearly so complex as the accused suggested. Indeed, many of the submissions advanced by the accused tended to grossly exaggerate the complexity of the issues that will likely arise.

156    The indictment contains eight charges against the three accused. While the offences could fairly be said to be complex, mainly because the relevant offence provisions themselves are wordy and complex, the underlying factual allegations are not particularly complex. When the matter first came before the Court, after lengthy committal proceedings in the Magistrates Court of Victoria, the prosecutor and the accused jointly estimated that the trial would take six weeks. While the indictment has been amended since that time, it does not appear that the parties have jointly amended that estimate, though some remarks were made on the appeal that suggested that the trial may take longer. The observations made by Smith AJA about the impact that an indictment containing 95 counts might have on the deliberations of the jury accordingly have no application whatsoever to the circumstances of this case.

157    The facts and circumstances considered in Hughes are also manifestly distinguishable from the facts and circumstances of this case. In Hughes, the accused was charged with 11 counts of sexual assault against five female children. The prosecution relied on tendency evidence in the trial of each count, consisting of the evidence of each of the complainants and a number of other witnesses. The appeal to the High Court primarily concerned the admissibility of that tendency evidence. The majority upheld the admissibility of the tendency evidence. Nettle J, in dissent, made a number of observations about the likelihood that a jury would be incapable of adhering to the directions that the trial judge should properly have given in relation to the tendency evidence. The difficulty, according to his Honour (at [172]), arose from “the inclusion on one indictment of a plethora of counts involving disparate sexual offences against disparate classes of complainants in disparate circumstances, with the consequence that, while some of the evidence admissible in relation to some counts was also admissible in relation to some other counts, a considerable percentage of it was not”. His Honour considered that the process of reasoning that a jury would have to follow to apply proper directions concerning their use of the tendency evidence “would have been so complex as to result in a high probability of the jury simply dealing with all of the evidence as a job lot relevant to each and every count”.

158    Putting aside that none of the other judges reached the same view as Nettle J, or endorsed his obiter observations, none of his Honour’s observations have any relevance to this case. The difficulties that a jury may have in applying directions concerning tendency evidence in a case involving multiple counts of sexual assault involving multiple complainants are vastly different from any difficulties that a jury may face in applying any extended unanimity directions that the trial judge may be required to give in this case. For the reasons already given, there is no proper basis for the contention that the directions that may need to be given in this case will be of “impossible or oppressive complexity”. Nor is there any basis for the apparent suggestion that the jury will be unable to conscientiously apply those directions.

159    The accused have failed to demonstrate that the trial will be oppressively complex, either by reason of the directions that the trial judge will be required to give to the jury or otherwise, such that the trial judge erred in refusing to sever and stay charges 1 to 3.

Further particulars

160    The only issue concerning the particulars of the prosecution case that the accused raised in their notices of appeal concerned particulars of the goods that were alleged to be subject to the arrangement or understanding and particulars of the two or more parties who were alleged to be in competition with each other in relation to those goods. The main complaint that was raised in the submissions of the accused concerned the fact that, while the prosecutor had identified particular goods in schedule 6, those goods had been identified only by way of example. As noted earlier, the prosecutor confirmed in the course of the hearing that the prosecution case in relation to the circumstance element would be confined to those goods.

161    The accused nevertheless raised a number of further complaints concerning the adequacy of the particulars that had been supplied by the prosecutor. Counsel for Country Care and Mr Hogan complained, for example, that the prosecutor had not supplied the “traditional form of competition particulars that one would have in a competition case”. We do not propose to address that, or other similar complaints about the particulars, because they are not properly within the scope of the appeal. It suffices to say that we are not persuaded that the particulars that have been provided to date, as clarified by the prosecutor during the course of the appeal, are inadequate, let alone so inadequate that there should be any severance or stay of charges 1 to 3 in the indictment. If the accused maintain that further or better particulars are required, that is a matter that should be taken up with the trial judge at an appropriate time.

Conclusion and disposition

162    The accused have failed to demonstrate that the trial judge erred in refusing to sever and stay charges 1 to 3 in the indictment.

163    The main basis upon which that relief was sought was that, having regard to the way the prosecutor had framed the prosecution case in relation to charges 1 to 3, it would be necessary for the trial judge to give extended unanimity directions of “impossible or oppressive complexity”. The trial judge rejected that contention. His Honour was right to do so. While the accused have shown that some extended unanimity directions may be required at trial in relation to charges 1 to 3, they have failed to demonstrate that the directions that may be required will be overly complex, let alone so complex as to justify severance or a stay of those charges.

164    While it is not possible at this stage to rule out the need for an extended unanimity direction in relation to the conduct element of charges 1 to 3, it would appear that it is unlikely that such a direction will be required. More importantly, if such a direction is required, there is no sound reason to believe that it will be a particularly complex direction.

165    As for the circumstance element, it was essentially common ground that a form of extended unanimity direction will need to be given in relation to the two or more Country Care Group members that are alleged to be in competition with each other. The trial judge found that an extended unanimity direction in relation to that aspect of the circumstance element would not be overly complex. That finding was not challenged in this appeal.

166    The trial judge erred in effectively ruling out the need for an extended unanimity direction in relation to the particular products that were said to satisfy both the purpose/effect and competition conditions. His Honour correctly found, however, that if he was wrong in relation to the need for any such direction, the required direction would not be so complex as to justify severance or a stay of charges 1 to 3. That was because the direction would effectively be limited to the products identified in schedule 6. As events transpired, the prosecutor confined its case in relation to the circumstance element to those products. In those circumstances, there is no reason to suppose that the required direction would be unmanageably complex. The accused effectively conceded that to be the case.

167    While the accused raised some more general claims or arguments about the complexity of the prosecution case in relation to charges 1 to 3 in the indictment, none of what was put in that regard was capable of demonstrating that the trial on those charges was likely to be so complex that severance or a stay was warranted. Indeed, most of the submissions tended to unnecessarily overcomplicate the matter.

168    In all the circumstances, the appeal must be dismissed.

Associate:

Dated:    6 March 2020