FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Pratt [2008] FCA 1373
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v RICHARD PRATT
VID 443 of 2008
RYAN J
9 SEPTEMBER 2008
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 443 of 2008 |
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BETWEEN: |
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Prosecutor
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AND: |
RICHARD PRATT Defendant |
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RYAN J |
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DATE OF ORDER: |
9 SEPTEMBER 2008 |
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WHERE MADE: |
MELBOURNE |
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THE COURT ORDERS THAT:
1. The defendant have leave further to amend each of the subpoenas served on the prosecutor (“the ACCC”), the Commonwealth Director of Public Prosecutions (“the CDPP”) and the Australian Government Solicitor (“the AGS”) by substituting in the definition of “relevant period” appearing therein for the phrase “the period between 22 November 2004 and 19 June 2008”, the phrase “the period between 26 July 2005 and 19 June 2008.”
2. The defendant be relieved from the need to serve on any of the ACCC, the CDPP, and the AGS each of the subpoenas respectively addressed to those entities and amended pursuant to the leave granted by paragraph 1 of this Order.
3. Each of paragraphs 4, 5 and 9 of the said subpoenas respectively addressed to the ACCC, the CDPP and the AGS be set aside.
4. The defendant have leave to amend each of the subpoenas respectively addressed to Graeme Samuel (“Samuel”) and Robert Alexander (“Alexander”) and filed herein on 7 July 2008 by inserting in paragraph 1 thereof after the word “recordings” the words “created or coming into existence between 26 July 2005 and 19 June 2008”.
5. Each of sub-paragraphs 1(a) and (b) of the said subpoenas respectively addressed to Samuel and Alexander be set aside.
6. Paragraphs 4, 5, 7, 8 and 10 of the amended subpoena addressed to Amcor Ltd (“Amcor”) dated 27 August 2008 be set aside.
7. The ACCC, the CDPP and the AGS by 30 September 2008 produce into the custody of the Court the documents described in paragraphs 1, 2, 4, 6, 7 and 8 of the subpoenas respectively addressed to those entities as amended in accordance with paragraph 1 of this Order.
8. Samuel and Alexander by 30 September 2008 produce into the custody of the Court the documents described in sub-paragraphs 1(c) of each of the subpoenas respectively addressed to those persons as amended in accordance with paragraph 4 of this Order.
9. Each of the ACCC, the CDPP, the AGS, Samuel and Alexander by 2 October 2008 provide to the Defendant a list of each of the documents produced in accordance with paragraphs 7 and 8 of this Order over which or part of which it or he maintains a claim for legal professional privilege stating the basis of each such claim of privilege.
10. In the event that the defendant challenges any claim for legal professional privilege made in accordance with paragraph 9 of this Order the party or person claiming such privilege file and serve by 9 October 2008 any evidence in support of its or his objection to the inspection by the defendant of each relevant document or part of such document.
11. In the event that none of the ACCC, the CDPP, the AGS, Samuel or Alexander objects to the inspection by the defendant of any of the documents referred to in paragraphs 7 and 8 of this Order, it or he should provide a list of those documents to the Court and the defendant by 2 October 2008 and the defendant shall have leave to inspect and copy the documents referred to in that list on condition that such documents be returned to the Court by 4.00 pm on 9 October 2008.
12. Any dispute about the right of the defendant to inspect any of the documents referred to in paragraph 9 of this Order be heard on a date and at a time to be fixed by the docket Judge.
13. These orders are made without prejudice to the right of the defendant to seek the issue of further subpoenas seeking the production by all or any of the ACCC, the CDPP, the AGS, Samuel, Alexander and Amcor of such documents as the defendant may be advised.
14. The costs of all parties, persons and entities affected by this Order of and incidental to the motions on notice dated 31 July 2008 and 26 August 2008 and of complying with any of the subpoenas referred to herein be reserved.
15. Liberty be reserved to any party, person or entity affected by this Order to apply on not less than 48 hours notice in writing to each party, person or entity affected by such application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 443 of 2008 |
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BETWEEN: |
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Prosecutor
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AND: |
RICHARD PRATT Defendant
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JUDGE: |
RYAN J |
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DATE: |
9 SEPTEMBER 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 On 19 June 2008, the applicant (“the ACCC”) procured the issue out of this Court of a summons requiring the defendant (“Pratt”) to answer the following charges;
‘1. On the 26th day of July 2005 at Melbourne in the State of Victoria Richard Pratt of 94 Studley Park Road, Kew in the State of Victoria did, contrary to section 155(5) of the Trade Practices Act 1974, in purported compliance with a notice under section 155 of that Act, knowingly give false or misleading evidence by stating that he had no recollection of a conversation with Russell Jones on 21 May 2001 about the existence of an arrangement between Visy and Amcor in respect of their respective corrugated box business.
2. On the 26th day of July 2005 at Melbourne in the State of Victoria Richard Pratt of 94 Studley Park Road, Kew in the State of Victoria did, contrary to section 155(5) of the Trade Practices Act 1974, in purported compliance with a notice under section 155 of that Act, knowingly give false or misleading evidence by stating that he did not have a conversation with Russell Jones on 21 May 2001 wherein Russell Jones told him that Peter Brown had told Russell Jones that there was an arrangement in place between Amcor and Visy in respect of their respective corrugated box businesses which involved the prevention of major market share shifts.
3. On the 26th day of July 2005 at Melbourne in the State of Victoria Richard Pratt of 94 Studley Park Road, Kew in the State of Victoria did, contrary to section 155(5) of the Trade Practices Act 1974, in purported compliance with a notice under section 155 of that Act, knowingly give false or misleading evidence by stating that he did not have a conversation with Russell Jones on 21 May 2001 wherein Russell Jones told him that he would like to get his confirmation that the arrangement that was in place between Amcor and Visy in respect of their respective corrugated box businesses, which involved the prevention of major market share shifts, was something that the said Richard Pratt supported and that the said Richard Pratt would tell Harry Debney to ensure that the arrangement was adhered to by Mr Pratt’s people.
4. On the 26th day of July 2005 at Melbourne in the State of Victoria Richard Pratt of 94 Studley Park Road, Kew in the State of Victoria did, contrary to section 155(5) of the Trade Practices Act 1974, in purported compliance with a notice under section 155 of that Act, knowingly give false or misleading evidence by stating that he did not, prior to Christmas 2004, have any knowledge of the existence of an arrangement between Amcor and Visy in respect of their respective corrugated box businesses.’
3 The summons to Pratt was accompanied by an information for an offence laid by Robert Menzies Alexander, the General Counsel of the ACCC, which reproduced as the statement of each of four offences the charges and particulars set out in the summons described at [1] and [2] above.
4 On 7 July 2008, I gave, amongst others, the following directions:
‘1. On or before 4.00pm on 21 July 2008, the Prosecutor file and serve:
(a) the brief of evidence;
(b) a prosecution case statement that sets out the manner in which the prosecution will put the case against the Defendant and the acts, facts, matters and circumstances being relied upon to support a finding of guilty;
(c) a notice of pre-trial admissions, identifying the evidence that, in the opinion of the Prosecutor, ought to be admitted as evidence without further proof, including evidence that is directed solely to formal matters.
2. On or before 4.00 pm on 28 July 2008 the Defendant file and serve any subpoenas to witnesses from whom he may desire the production of documents or the giving of oral evidence, such subpoenas to be made returnable in the first instance before a Registrar of the Court on 6 August 2008.’
(a) the Commonwealth Director of Public Prosecutions (“the CDPP”)
(b) the informant in these proceedings, Robert Menzies Alexander (“Alexander”);
(c) the Chairman of the ACCC, Graeme Samuel (“Samuel”);
(d) the Australian Government Solicitor (“the AGS”);
(e) the ACCC.
6 On 25 July 2008 the defendant served further subpoenas on the ACCC, the CDPP and the AGS. With some minor amendments, those later subpoenas were in the same terms as the earlier subpoenas respectively served on the same entities which were consequently discharged by order of Registrar Burns on 6 August 2008.
7 By motion on notice dated 31 July 2008, the persons and entities noted at [5] and [6] above as having been served with subpoenas moved to have the extant subpoenas set aside. A hearing of that motion occurred on 12 August 2008.
9 The extant subpoenas issued to the ACCC, the CDPP and the AGS are substantially identical. The same can be said of the subpoenas issued to the individuals Samuel and Alexander. The dispute about the subpoena to Amcor is in narrower compass but raises similar issues.
A The forensic purposes for which access to documents is sought
‘1 … … The parties have tendered an agreed statement of facts. This means that the parties agree that, for the purposes of this proceeding, the facts in this statement are not to be disputed: see Evidence Act 1995 (Cth) s 191. The parties say that this agreement is not to be taken as an admission to those facts outside the context of this proceeding. I am not bound to accept facts merely because they have been agreed between the parties. Also I can draw inferences from such of the agreed facts as are accepted.’
‘8 The Commission has not proceeded against those on the Amcor side of this cartel because in late 2004 Amcor approached the Commission and admitted liability. The Commission applied its Leniency Policy for Cartel Conduct, published in 2003, under which the first party to disclose a cartel of which the Commission is unaware will receive an immunity, provided it is not the “clear leader”, gives full and frank disclosure, and continues to cooperate with the Commission. In unrelated litigation Amcor had sued former executives and obtained a Court order for a search of their premises. Incriminating material, including tape recordings of conversations, was discovered and on its solicitors’ advice Amcor approached the Commission. Details of these events will be found in my earlier judgment on an interlocutory application: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444 at [7]-[52].’
11 The agreed statement contained this paragraph in respect of the alleged meeting between Pratt and Jones at the All Nations Hotel;
‘96 On 21 May 2001, Pratt met with Jones at Jones’ request at the All Nations Hotel in Lennox Street, Richmond, Victoria. At the meeting, Pratt communicated to Jones that Visy would adhere to an understanding that Debney had reached with Brown, being the Over-arching Understanding referred to in paragraph 72 above.’
12 As I understand them, the allegations of abuse of power and abuse of process against the ACCC are founded on an inference that, before instituting the civil proceedings, or while they were pending, the ACCC decided, or formed an intention, to prosecute Pratt for contravention of s 155(5) of the TPA. That allegedly remained the state of mind of the ACCC when it was negotiating the agreed statement and when it tendered it to the Court in the civil proceedings. Mr Richter QC, who appears as leading Counsel for Pratt in the present proceedings, also seemed to rely on the fact that the state of mind which is now imputed to the ACCC was never communicated to Pratt, Visy or their legal advisers before the civil proceedings were resolved. He contended at a hearing before me on 7 July 2008;
‘…… at the time of the civil proceedings and at the time of their settlement, the parties who are responsible for this prosecution had in contemplation of bringing a criminal proceeding. And if that is so, the abuse is even more serious because had the charges been laid appropriately they could have been laid back in 2005 when the civil proceeding commenced and had they been commenced then, there would have been an application to stay the civil proceedings pending the determination of the criminal proceedings. The criminal proceedings would then have proceeded without any Agreed Statement of Facts.’
14 The authorities which indicate the principles governing the Court’s discretion on motions like the present are well-known and include several recent applications of those principles to particular facts. It is convenient to restate the relevant principles and then endeavour to apply them first to the subpoenas issued to the ACCC, the CDPP and the AGS, secondly to the subpoenas addressed to Samuel and Alexander and then to the disputed paragraphs of the amended subpoena to Amcor.
B Principles governing the production of documents on subpoena
15 A party who has issued a subpoena for the production of documents for use in proceedings before a court must satisfy the court that access to the documents is sought for a “legitimate forensic purpose” and also that it is “on the cards” that the documents will “materially assist” that party’s case. In R v Saleam [1999] NSWCCA 86, the applicant, who had been convicted of conspiracy maliciously to damage by fire a motor vehicle, had applied to the trial judge for a permanent stay on the ground, amongst others, that he had been induced to commit the offence by his former wife who, in turn, had been acting at the instigation of a police officer. The trial judge refused the application for a stay. He later sought an extension of time in which to appeal against his conviction and leave to appeal against the refusal of a stay. For the purposes of those applications and any resultant appeal, he sought to have certain documents produced by the Commissioner of Police.
16 Simpson J, with whom Spigelman CJ and Studdert J agreed, held, after extensive reference to the observations of the High Court in R v Ridgeway (1995) 184 CLR 19, that the applicant had a legitimate forensic purpose in seeking to demonstrate that a named member of the Police Force had instigated the commission of the offence. However, her Honour concluded that “there was nothing from which one could even speculate” that the documents, files or records sought by the applicant which, he claimed, had been constructed and maintained by the Special Branch of the NSW Police Service, “might contain information that would disclose or permit the inference that Detective Ireland instigated the offence with which the applicant was charged.” Accordingly, her Honour concluded, it was not “on the cards” that production of the documents would assist in achieving the assumed legitimate forensic purpose.
17 In Attorney-General for New South Wales v Chidgey [2008] NSW CCA 65 [unreported, 28 March 2008] the respondent had caused to be issued to the Commissioner of Police a subpoena requiring the production, amongst other things, of;
‘A copy of the relevant documents and things required to be completed by the Police in accordance with the Controlled Operations Act and Regulations, including but not limited to the applications made for the approval of Controlled Operation CO OS/434.’
18 In her reasons for judgment, Beazley JA, with whom James and Kirby JJ agreed, noted that the legitimate forensic purpose for which the respondent sought production of the documents had been articulated as follows;
‘…… the documents contain information that will assist the accused’s defence insofar as they go towards challenging the admissibility of evidence pursuant to s 138(1)(b) of the Evidence Act 1995.’
Her Honour summarised the argument advanced on behalf of the respondent as based on the respondent’s defence which was;
‘that [the] offence was based [on]“an artefact of the design of the controlled operation”. It was alleged that the repetition of supply was deliberately sought by the police in order to create, or “ramp up”, the charges from isolated incidents to a course of dealing in contravention of s 25A. In other words, it was asserted that the s 25A charge had only come about by the undercover police operatives importuning the respondent to supply the drug on a number of occasions. It was said that the police could only have engaged in that conduct by specifically making an application to do so. Of necessity, the conduct in which they proposed to engage had to be “mapped out” in the plan of the proposed operation, required to be provided in support of an application for a controlled Operations Authority under s 5(2A) [of]the Law Enforcement (Controlled Operations) Act.’
19 After noting that the Attorney-General’s essential challenge to the subpoena was that “the respondent had failed to establish that there was a legitimate forensic purpose of the type which permits access to the documents” her Honour held that the Attorney-General had an appeal as of right from an order of a Magistrate refusing to set aside part of the subpoena directed to the Commissioner of Police. Her Honour then proceeded to consider whether there was a legitimate forensic purpose for the issue of the subpoena.
20 It was first noted that the authorities establish that a party is entitled to use a subpoena not for the purposes of “fishing”, but to discover whether he has a case at all, and, secondly, that mere relevance of the documents sought to a matter in issue is not sufficient. Rather, it must be “on the cards” that the documents will materially assist the case of the party issuing the subpoena; see Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. After referring to the judgment of the Court of Criminal Appeal in R v Saleam (supra) and of the High Court in Alister v The Queen (1984) 154 CLR 404 at 414, her Honour continued, at [68]-[70];
‘68 The approach of Gibbs CJ in Alister has been consistently adopted and applied in this State. An early, useful example is Principal Registrar oftheSupreme Court v Tastan. Barr AJ (as his Honour then was) said, at 499, that there will be no legitimate forensic purpose if, “all the party is doing is trying to get hold of the documents to see whether they may assist him in his case”: see The Commissioner for Railways v Small. His Honour noted that there was nothing in the case before him that made it appear to be “on the cards” that anything contained in the subpoenaed documents was likely to materially assist the accused in his defence. His Honour considered, at 506, that the defendant wanted access to the documents “to see whether he had a [defence]”.
69 Hunt J (Carruthers and Grove JJ agreeing) applied the “on the cards” test in an earlier Saleam case: R v Saleam (1989) 16 NSWLR 14, and permitted access to documents in circumstances that were redolent of the example given by Gibbs J in Alister. The subpoena in this case had been issued during the appeal process. It was argued that there was material in the subpoenaed material that would indicate that there had been a miscarriage of justice at trial. The accused had been told by a police officer seconded to the Ombudsman’s office that “that there were discrepancies in the police case” at the trial. It was not disputed that such a statement had been made. The accused claimed that the subpoenaed material would be relevant to impugn the credit of the principal Crown witness at trial. The Court allowed access to the documents on the basis that it was “at least ‘on the cards’ that the documents in question would assist the appellant in his appeal and that there was therefore a legitimate forensic purpose for the production of the documents”.
70 The Attorney General indicated that Simpson J’s formulation in R v Saleam [1999] represented the commencement of a line of authority in which the test for the production of, or access to, documents, was specifically stated as comprising two steps: a legitimate forensic purpose and that it was “on the cards” that the documents would materially assist the case. However, in stating the test in this specific ‘two step’ way, her Honour did not state any new principle. As I have already stated at [64], in the authorities that preceded R v Saleam [1999], including Alister, the courts, in determining whether access would be granted to documents sought on subpoena, have always applied a test that involves determining whether each of the factors identified by Simpson J had been established.’
21 Her Honour then examined more recent authority in the Supreme Courts of Victoria and New South Wales including Roads & Traffic Authority of NSW v Connolly (2003) 57 NSWLR 310 and Ragg v Magistrates Court of Victoria & Corcoris [2008] VSC 1 and concluded that the test propounded by Simpson J in R v Saleam should continue to be applied. In applying that test, it was held, the respondent should not be allowed access to documents brought into existence to satisfy the requirements of s 5(2)(a) of the Law Enforcement (Controlled Operations) Act to “check” whether there had been compliance with s 5(2A) of that Act. As her Honour explained, at [85]-[87];
‘85 …… In other words, the Magistrate identified the legitimate forensic purpose in terms that meant the respondent needed to have access to the documents “to discover whether he has a case at all”: see The Commissioner for Railways v Small at 575. As Jordan CJ stated in that case, a party is not entitled to use a subpoena for that purpose.
86 This was not a case like, or analogous to, the example given in Alister where an important witness had given a pre trial report so that it could be said that it was “on the cards” that the document “would materially assist” the respondent by permitting cross-examination of the witness based on the earlier report. Nor was it a case like that which Hunt J had dealt with in Saleam, where there was some evidence that there was a problem with the evidence given at trial and the material subpoenaed may have revealed whether that was the case. Here, there was no suggestion that the police witnesses had made earlier statements that should be available for the purposes of cross-examination. Nor was there any suggestion whatsoever that there was any failure to follow correct procedures, or that any wrongdoing had been engaged in. In short, there was nothing at all to suggest that it was “on the cards” that the subpoenaed material would “materially assist the [respondent’s case]”.
87 It follows, in my opinion, that the Magistrate erred in law in allowing access to the material referred to in para 3 of the Schedule to the subpoena.’
22 Significance attaches, in the context of the present case, to the fact that the subpoenas have been issued on behalf of an accused person whose liberty is at stake in criminal proceedings. In Alister v The Queen the accused, who had been charged with conspiracy to murder and attempted murder, sought the return of a subpoena to the officer in charge of the Australian Security Intelligence Organisation (“ASIO”). The subpoena sought the production of all files, notes and memoranda relating to or supplied by the investigation by one Seary into the Ananda Marga organisation and its activities from 15 June 1977 to the date of the subpoena. Seary was the principal Crown witness against the accused. It was held by majority that production of documents described in the subpoena should have been ordered to enable the Court to discover whether any such documents existed and to inspect them to determine whether they should have been disclosed to the accused.
23 Gibbs CJ observed, at 414;
‘Both Burmah Oil Co Ltd v Bank of England (1980) AC 1090 and Air Canada v. Secretary of State for Trade [1983] 2 AC 394 support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v. Secretary of State for Trade [1983] 2 AC, at p 439, he must have "some concrete ground for belief which takes the case beyond a mere `fishing' expedition". In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam (1978) 142 CLR at pp 42, 62), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.’
24 The fact that the subpoena had been issued in criminal proceedings was similarly emphasised by Gillard J in R v Mokbel (Ruling No 1) [2005] VSC 410, at [41] and by Bell J in Ragg v Magistrates Court of Victoria [2008] VSC 1, at [88] and [97]. In the latter case, his Honour observed:
‘88 It is clear that the accused does not have to establish that the defence would actually be assisted by production of the documents. A test of that kind would have the capacity to produce monstrous unfairness, is not supported by authority and was not put forward by Mr Ragg.
…
97 The “reasonably possibility” test [that documents will materially assist the defence] does not apply in all cases in a fixed manner as if the relevant considerations always have the same value. It is necessary to consider “the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue” (ACC v Brereton [2007] VSC 297, [16] per Smith J) and, more generally, “the circumstances as a whole” (Felice v County Court of Victoria and Anor [2006] VSC 12, [52]).’
25 A prosecuting authority will not be required to comply with a subpoena merely to enable an accused person to “check” whether the prosecutorial obligations of disclosure have been discharged. Those obligations have been described in some detail by the Victorian Court of Criminal Appeal in R v Higgins (unreported, 2 March 1994) where the Court (Brooking, Byrne and Eames JJ) observed, at 72;
‘It was not disputed before us that neither the Crown nor the accused has any obligation to make general discovery in a criminal trial: R v Saleam (1989) 16 NSWLR 14; Sobh v Victoria Police Commissioner (1993) 65 A Crim R 466; nor that the Crown does have an obligation to disclose to the defence material which would tend to assist the defence case: Clarkson v DPP [1990] VR 745 at p755. This obligation to make disclosure is one arising out of the fundamental duty of the prosecution to ensure that the Crown case is presented with fairness to the accused: Richardson v R (1974) 131 CLR 116 at p119; Clarkson v DPP [1990] VR 745 at p759. The application of this duty of disclosure to a given case will depend upon the facts of that case and the significance of the material in question in the light of the issues in that particular case: R v Charlton [1972] VR 758. See for example Lawless v R (1979) 142 CLR 659 at p666, per Barwick CJ; at p673-p674, per Stephen J; at p678 per Mason J. The obligation too may be modified by agreement between the Crown and the accused providing always that such agreement is an informed one freely entered into: Whitehorn v R (1983) 152 CLR 657 at p665, per Deane J.’
In the same case their Honours pointed out, at 76-78;
‘The application of the duty of fairness imposes a heavy responsibility upon prosecutors and one which requires of them a considerable degree of objectivity, for it is no part of their function improperly to strive for a conviction or to permit their judgment to be swayed by feelings of professional rivalry. In R v Apostilides (1984) 154 CLR 563 at p575-p576 the High Court described the role of the prosecutor in deciding whether to call a witness as:
“[A] lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one.”
While in the appropriate case the trial judge may exercise certain powers with respect to production of documents the decision of the prosecutor cannot be passed to the judge nor is it capable of judicial review: Lawless v R (1979) 142 CLR 659 at p178, per Mason J; R v Apostilides (1984) 154 CLR 563. An erroneous exercise of the judgment of the prosecutor, may, however, constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice: Richardson v R (1974) 131 CLR 116 at p122; Lawless v Em (1979) 142 CLR 659 at p678; R v Shaw (1991) 57 A Crim R 425 at p429 per Young CJ.
The consequence of this lonely prosecutorial decision is that, in this regard, prosecutors must often exercise judgment in a cause in which they are advocates. Often too, the material in respect of which judgment must be exercised is unknown to the defence and it may be inappropriate to disclose its existence unless and until a decision is made to release it. Often too, the relevance of the material to the accused's defence may be problematical or the defence itself not readily apparent. That which appears at the commencement of the trial to be irrelevant may assume significance as the defence of the accused unfolds: R v Ward [1993] 1 WLR 619 at p674. In other cases, the defence, suspecting that useful Crown material exists, may for good reason not wish to disclose its cogency to the Crown. In any given case the Court and the accused depend very much on the prosecutor's sense of fairness, a confidence which underpins the law's continuing rejection of any duty of discovery in the Crown.
Where a request has been or is likely to be refused, the defence may, of course, seek the production of the documents it seeks by the filing of a subpoena. This may be of limited value where the existence of the material is not known or where its precise description is uncertain, for the rules which prohibit subpoenas which are unduly wide or of a fishing nature are applicable in criminal proceedings, notwithstanding that they may be applied rather less restrictively: R v Saleam (1989) 16 NSWLR 14; R v White (1976) 13 SASR 276; Runt v Wark (1985) 40 SASR 489. We think, with respect, that this prohibition is a salutary one and that the practice which has sometimes been observed of filing wide subpoenas, seeking what is, in effect, discovery of Crown documents, is one to be deplored. We say this not only because it is in effect a distortion of the true role of the subpoena, but because it may have the tendency of passing to the defence and, ultimately to the Court, the decision as to disclosure which properly resides with the prosecutor.’
C The subpoenas issued to the ACCC, the CDPP and the AGS
26 The documents and things which the ACCC is required to produce by the subpoena addressed to it are;
1. All documents relating to or recording the consideration by the ACCC during the relevant period of criminal charges against the Defendant.
2. All documents relating to meetings, conversations or communications between the ACCC and DPP during the relevant period, including all correspondence passing between the ACCC and DPP during the relevant period relating to potential criminal charges against the Defendant.
3. All documents capable of being described as a running log of the investigation of the Defendant for the relevant period.
4. All documents relating to any decision by the ACCC about whether to sign (or not sign) the Mediation Agreement.
5. All documents relating to communications between the ACCC and Amcor during the relevant period relating to:
(a) the investigation of the alleged cartel between Visy and Amcor; or
(b) proceedings proposed to be commenced by the ACCC against Visy in relation to alleged cartel conduct.
6. All Memoranda of Understanding between the ACCC and the DPP in operation during the relevant period.
7. All documents concerning and/or governing and/or circumscribing the relationship between the ACCC and the DPP in respect of the investigation and/or prosecution of alleged or suspected breaches of s 155 of the TPA including, but not limited to:
(a) documents containing rules or guidelines governing that relationship;
(b) documents containing statements of the manner, or intended manner, of the administration of that relationship; or
(c) documents describing the procedures to be followed by either the ACCC or the DPP in respect of the investigation and/or prosecution of alleged or suspected breaches of the TPA.
8. All correspondence or other documents containing communications between the ACCC and DPP relating to criminal prosecutions of alleged or suspected breaches of s 155 of the TPA created since 1 July 2003.
9. All correspondence and/or documents recording communications between the ACCC and the DPP concerning procedures or protocols or guidelines proposed to be established between the ACCC and the DPP regarding the prosecution of alleged or suspected breaches of the TPA created since 1 July 2003.
The “relevant period” was defined in the prefatory part of the subpoena as “the period between 22 November 2004 and 19 June 2008”.
(i) Paragraph 1
28 I have concluded that each of the forensic purposes is legitimate in the sense discussed in the authorities canvassed in Part A of these reasons. However, Mr Richter QC argued that the categories of abuse of process or abuse of power on which he seeks to erect a legitimate forensic purpose “are not closed; they are in fact flexible.” He relied on Rogers v The Queen (1994) 181 CLR 251 where Mason CJ pointed, at 255;
‘… … The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories (Hunter v Chief Constable, [1982] AC, at p 536, per Lord Diplock). Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.
Williams v Spautz [(1992) 174 CLR 509] is a case in point. Although the majority judgment concluded that there was, in that case, an abuse of process consisting in the initiation of proceedings for an ulterior and improper purpose, the majority recognized that the concept extends beyond use of court processes for ulterior purposes to the use of such processes so as to cause vexation or oppression [ibid, at p 520, endorsing Moevao v Department of Labour, [1980] 1 NZLR 464, at p 482]. In Walton v Gardiner [(1993) 177 CLR 378, at p 395] it was pointed out that the majority judgment contained nothing which supported the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. In that case, Mason CJ, Deane and Dawson JJ stated that the inherent jurisdiction of a superior court to stay its proceedings for abuse of process [ibid, at p 393]:
“extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.”’
29 The flexibility for which Mr Richter contended allows some elasticity in the articulation of a legitimate forensic purpose. However, any such elasticity makes it correspondingly harder to demonstrate that it is “on the cards” that access to a particular category of documents will materially assist in achieving the forensic purpose as loosely articulated. I accept in this context, as did Ms Judd SC, who appeared with Mr Attiwill for the ACCC, that material assistance in achieving a particular forensic purpose is not confined to a positive contribution to affirmative proof of some matter which the party issuing the subpoena may seek to establish. It is enough that access to the relevant document will assist in indicating whether a particular line of inquiry or cross-examination may be fruitful for that party.
(ii) Paragraph 2
31 On the assumption indicated in relation to paragraph 1, I consider that the ACCC and the CDPP should comply with paragraph 2 of the subpoenas respectively served on them.
(iii) Paragraph 3
32 Even with the restriction of “the relevant period” indicated above in relation to paragraph 1, this paragraph seeks production of too wide a category of documents. “Running log” is not a term of art and the range of documents comprehended by it is likely to vary according to the identity, experience and perspective of the person by whom it is “capable” of being used as a descriptor. Moreover, the category of “running logs” is predicated on any investigation of Pratt and is not confined to investigations of alleged offences by him against s 155 of the TPA or even criminal offences generally which he may have committed. In that sense, paragraph 3 could require production of any document capable of being described as a “running log” of the ACCC’s investigation of cartel conduct by Visy in which Pratt may have been involved, however peripherally. For these reasons, I regard paragraph 3 as too wide to enable the reasonable identification of documents which it is “on the cards” would assist in achieving any of the forensic purposes. Paragraph 3 of each of the subpoenas examined under this head will therefore be set aside.
(iv) Paragraph 4
33 It appears that the Mediation Agreement was the outcome of mediation proceedings between the parties to the civil proceedings in which the Honourable Michael McHugh QC acted as mediator. One result of the Mediation Agreement was the formulation and submission to this Court of the agreed statement. If the documents sought by this paragraph were to show that the ACCC entered into the Mediation Agreement with a mental reservation that, notwithstanding the resolution of the civil proceedings, a criminal prosecution would still be brought against Pratt personally, that may assist Pratt in imputing to the ACCC an abuse of process or an abuse of power. I therefore decline to set aside paragraph 4.
(v) Paragraph 5
(vi) Paragraphs 6, 7 and 8
37 As I understand it, Pratt and his advisers believe or suspect that lines of authority, decision-making and communication between the ACCC, as the investigating agency, and the CDPP to whom the prosecution of the present proceedings has been entrusted have been changed in some respects from those which are normally followed in inter-action between the two entities. I further glean from the description of the documents sought by these three paragraphs, that they are in the nature of protocols, organisational charts and the like intended to outline or describe spheres of responsibility of officers of the ACCC on the one hand and the CDPP on the other. The documents, if they exist, are also capable of describing lines of communication between the two entities and the demarcation of areas for their respective exercise of discretion. I do not understand any of the three paragraphs, except perhaps paragraph 8, to call for the production of documents related to specific cases which have been investigated by the ACCC and which have been, or are being prosecuted, by the CDPP. If these suppositions be correct, it is likely that the volume of documents to be captured by paragraphs 6, 7 and 8 will be small, particularly when “the relevant period” is redefined as already suggested. To the extent that paragraph 8 can be construed as relating to criminal prosecutions of specific alleged or suspected breaches of s 155 of the TPA other than that against Pratt, the ACCC can seek to be excused from complying with it.
38 If compliance with paragraphs 6, 7 and 8 is limited in the way just outlined, the documents to be produced are capable of assisting Pratt in relation to the imputation to the ACCC of an abuse of power or abuse of process either by affording some support for the imputation or dispelling the suspicion that he has been singled out for the creation or application of some special arrangement between the ACCC and the CDPP. I therefore decline to set aside any of paragraphs 6, 7 and 8.
(vii) Paragraph 9
39 On my reading of this paragraph, it seeks production of documents evidencing communications between the ACCC and the DPP going beyond protocols or memoranda of understanding actually in force to regulate inter-action between the ACCC and the CDPP in relation to the investigation and prosecution of contraventions of the TPA. Documents which have actually come into force to govern the relationship appear to be sought by paragraphs 6 and 7 of the subpoena to the ACCC. By paragraph 9 of that subpoena, Pratt appears to seek documents containing only “proposals” made since 1 July 2003 to establish procedures, protocols or guidelines to be observed by the ACCC and the CDPP vis à vis each other in the prosecution of alleged breaches of the TPA. If this analysis is correct, the reach of paragraph 9 far exceeds what it is “on the cards” might assist Pratt in achieving one or other of the forensic purposes. That is particularly so in light of the paragraph’s seeking documents containing “proposals” long antedating 26 July 2005 and not confined to those specifically directed to the prosecution of either or both Visy and Pratt. For these reasons, I shall set aside paragraph 9 of each of the subpoenas to the ACCC, the CDPP and the AGS.
D The subpoenas issued to Samuel and Alexander
40 These subpoenas seek the production of documents described in the following identical terms:
‘1. All emails, including emails from personal computers, diary notes and telephone records and/or recordings relating to:
(a) the investigation of the alleged cartel between Visy and Amcor;
(b) the ACCC’s proceedings against Visy in relation to the alleged cartel conduct; or
(c) whether criminal charges were contemplated, considered or to be laid against the Defendant.’
(i) Sub-paragraph (a)
41 This sub-paragraph resembles paragraph 5(a) of the subpoena addressed to the ACCC in that it seeks from each of Samuel and Alexander production of documents “relating to the investigation of the alleged cartel between Visy and Amcor.” It is not limited in time to the period after 26 July 2005 when Pratt was examined pursuant to s 155 of the TPA. For the reasons explained at [34]-[36] above, I consider that this sub-paragraph should be set aside.
(ii) Sub-paragraph (b)
42 This sub-paragraph is similar to paragraph 5(b) of the subpoena addressed to the ACCC. Like that sub-paragraph, it is not limited to documents evidencing consideration or investigation of whether Amcor had been the “clear leader” of the alleged cartel. Nor is it confined to documents coming into existence after 26 July 2005. Accordingly, I have concluded, for the reasons explained at [34]-[36] above, this sub-paragraph also should be set aside.
(iii) Sub-paragraph (c)
43 This sub-paragraph substantially mirrors paragraph 1 of the subpoena addressed to the ACCC. It seeks the production of documents in the possession of, or created by, Samuel and Alexander personally relating to whether criminal charges were contemplated, considered or to be laid against Pratt. It is not limited to documents created between 26 July 2005 and the institution of the present proceedings but, if it were so limited, I would for the reasons explained at [27]-[30] above, not set it aside.
E The subpoena issued to Amcor
44 The paragraphs of the amended subpoena addressed to Amcor which it has moved to set aside are in the following terms;
‘4 All documents recording or referring to leniency or immunity approaches or agreements between:
(a) Amcor;
(b) Jones; or
(c) Brown,
on the one hand, and:
(d) the ACCC;
(e) the Australian Securities and Investments Commission; or
(f) the DPP,
on the other hand, made in connection with the Arrangements, created between 10 November 2004 and 15 December 2006.
5 Board papers or minutes of Board meetings of Amcor from November 2004 to July 2008 which refer to any of:
(a) Jones;
(b) Brown;
(c) Pratt;
(d) the ACCC;
(e) Graeme Samuel;
(f) Bob Alexander;
and either:
(g) the Arrangements; or
(h) any application for leniency made in connection with the Arrangements.
… …
7 All documents recording any notification given or claim made by Amcor under any directors and officers insurance policy which refers to the Arrangements.
8 All documents recording any notification given or information provided to Amcor’s auditors which refers to the Arrangements.
… …
10 All documents recording communications between:
(a) Amcor;
(b) Jones; or
(c) Brown,
on the one hand, and:
(d) the ACCC;
(e) the AGS; or
(f) the DPP,
on the other hand, relating to Federal Court of Australia proceeding no. VID 1650 of 2005.’
“Arrangements” is defined in the prefatory paragraph 1 of the Amcor subpoena to mean:
‘any alleged arrangement or arrangements between Amcor and Visy regarding corrugated box pricing, market sharing and transfer of, and access to, customers the subject of Federal Court of Australia proceeding no. VID 1650 of 2005.’
45 It is convenient to examine separately and in order each of paragraphs 4, 5, 7, 8 and 10.
(i) Paragraph 4
‘Based on my review of documents to date, and what I have been told by other lawyers working on the subpoena review team, I believe we have been able to locate the bulk of the substantive correspondence that constitutes or records Amcor’s approaches to the ACCC leading to the leniency agreement and any variations thereto. These documents are being produced on 27 August 2008.’
47 In subsequent paragraphs of the same affidavit Ms Bishop has indicated that the number of documents capable of being produced by Amcor “that might contain a mere reference to leniency” is voluminous and their identification would require perusal of numerous folders containing of the order of 66,000 pages. Ms Bishop then went on to depose in the same affidavit;
‘19 In addition to those classes of documents, there are a number of other files that may require review for documents potentially responsive to category 4, because they might contain documents that merely refer to the leniency agreement or approaches, including:
· documents and correspondence in the Jarra Creek proceeding about the discovery of documents concerning any leniency agreement;
· documents and correspondence concerning investigations by the New Zealand Commerce Commission; and
· documents and correspondence relating to the Hodgson proceeding.
20 Furthermore, there may be yet more documents contained in files maintained by AAR lawyers, including copies of correspondence and internal working papers, most of which would be subject to claims of legal professional privilege by Amcor.
21 Furthermore, I would expect there to be a large number of documents, both in electronic and hard copy format, located at various offices of Amcor which might contain mere references to leniency. It would be extremely onerous to undertake the necessary electronic and manual searches necessary to isolate such documents.
22 Therefore, I believe that the estimation given above in relation to the number of pages that require detail review to identify documents potentially responsive to category 10 will be substantially exceeded in relation to category 4.
23 Furthermore, in my review of documents to date, in addition to the types of matters identified at paragraph 10 above, I have come across the following types of documents which contain mere or passing references to leniency, and do not constitute the leniency agreement or record Amcor’s approaches for leniency:
· media releases (including a number of drafts), stating the fact of Amcor’s leniency;
· Amcor’s financial statements and annual reports (including various drafts) dating from 2004 onwards stating the fact of leniency;
· large volumes of correspondence between AAR and the AGS concerning the provision of documents related to the ACCC investigations;
· correspondence in the Jarra Creek proceeding about the discovery of documents concerning leniency;
· documents relating to the investigations by the New Zealand Commerce Commission;
· documents and correspondence relating to the Hodgson proceeding;
· internal AAR drafts of letters relating to leniency; and
· internal AAR copy correspondence files and working documents.’
48 I have indicated at [34] and [35] above a basis on which access to documents related to Amcor’s request for leniency and the ACCC’s acquiescence in that request might materially assist Pratt in achieving a forensic purpose connected with his defence of the present proceedings. However, it is not “on the cards” that such assistance will be afforded by access to all documents containing a “reference”, however passing or inconsequential, to a leniency or immunity approach or agreement. The affidavit of Ms Bishop makes clear that the task of identifying all documents answering that description would be massively time-consuming and expensive.
49 I am also fortified in setting aside paragraph 4 of the subpoena to Amcor by that company’s undertaking recited at [46] above to produce what is likely to be at least the bulk of documents in its possession which are sufficiently related for present purposes to the leniency agreement and any variations of it.
50 Examination of documents produced pursuant to that undertaking or obtained coercively or otherwise from some other source may suggest the existence of other documents capable of materially assisting Pratt in achieving one or other of the forensic purposes. If so, a fresh subpoena can be issued to Amcor containing an appropriately specific description of those other documents. However, for the reasons indicated Amcor should not be required to comply further with paragraph 4 of the present subpoena.
(ii) Paragraph 5
51 The basis on which Amcor’s request for leniency and the ACCC’s acquiescence in it may assist Pratt in achieving a forensic purpose has been outlined at [35] above. Some of the Board papers or minutes sought by paragraph 5 may already have been produced pursuant to the undertaking recited at paragraph 17 of Ms Bishop’s affidavit. However, paragraph 5 of the Amcor subpoena requires identification and production, for example, of any Board paper which contains a reference to Jones or Brown and the cartel arrangements between Amcor and Visy. In my view, the reach of a paragraph framed as paragraph 5 has been extends far beyond what might throw any light on the state of mind of any of Samuel, Alexander or the ACCC when the decision was taken either to institute the civil proceedings or to lay the criminal charges against Pratt.
52 I accept, as outlined at [13] of these reasons, that Pratt may legitimately seek production of any document containing an account or reference by Jones or Brown of the former’s alleged conversation or meeting with Pratt. That entitlement would extend to Board papers or minutes containing any such account or reference. However, paragraph 5 in its present form extends far beyond that entitlement and must be set aside. That will be without prejudice to Pratt’s right to seek production, if necessary, of Board minutes or papers more narrowly described in accordance with the analysis which I have just undertaken.
(iii) Paragraphs 7 and 8
53 These paragraphs seek production of any document, in effect, notifying or advising Amcor’s insurers or auditors of some potential liability or claim arising from its entry into the cartel arrangements with Visy. It is conceivable that such documents may include accounts by Jones or Brown of a meeting or conversation between Jones and Pratt. However, the paragraphs are not limited to documents containing accounts of that kind. For that reason, in conjunction with the reasons explained above, they travel beyond the categories of documents to which Pratt can legitimately claim access. Accordingly, paragraphs 7 and 8 of the subpoena to Amcor will be set aside but without prejudice to Pratt’s right to issue a fresh subpoena to Amcor seeking production of statements made by Jones about his communications with Pratt which might be used to impugn Jones’ credit in the present criminal proceedings against Pratt.
(iv) Paragraph 10
54 As pointed out at [34] of these reasons, the implementation of the ACCC’s leniency policy in relation to Amcor required its continued co-operation in the prosecution of the civil proceedings against Visy. Amcor’s agreement to provide that co-operation was likely to be productive of voluminous procedural or machinery communications between it, Jones and Brown and the ACCC or the CDPP in relation to those civil proceedings. However, it is not “on the cards” that those communications would assist Pratt in imputing an abuse of process or an abuse of power to the ACCC or in impugning Jones’ credit in relation to his alleged meeting with Pratt at the All Nations Hotel. Because of this transgression beyond what might conduce to the achievement of one or other of the forensic purposes, this paragraph must also be set aside. Nevertheless, that will again be done without prejudice to Pratt’s right to issue a fresh subpoena containing an appropriately circumscribed description of documents containing successive drafts or proofs of evidence to be given by Jones or Brown in the civil proceedings in this Court numbered VID 1650 of 2005.
Conclusion
55 For the reasons which I have endeavoured to explain, I shall grant leave to Pratt further to amend, in the manner described at [30] above, each of the subpoenas respectively addressed to the ACCC, the CDPP and the AGS. Paragraphs 4, 5 and 9 of each of those subpoenas must be set aside and there will be directions for compliance with what remains of each such subpoena. Paragraphs 4, 5, 7, 8 and 10 of the amended subpoena to Amcor will also be set aside. As well, there will be leave to amend the subpoenas addressed to Samuel and Alexander, sub-paragraphs 1(a) and (b) of each of which will be set aside. I shall give directions for compliance with sub-paragraph 1(c) of each of those subpoenas, conforming generally with the directions to be given in respect of the subpoenas to the ACCC, the CDPP and the AGS. The orders made today in respect of each of the subject subpoenas will be without prejudice to Pratt’s right, if so advised, to issue a fresh subpoena to any of the ACCC, the CDPP, the AGS, Samuel, Alexander and Amcor. The costs of all parties, persons and entities affected by these orders and of complying with the subpoenas will be reserved and there will be general liberty to apply.
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I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 9 September 2008
12 August 2008:
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Counsel for the Prosecutor: |
Mr M Dean SC with Mr S Donaghue |
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Solicitor for the Prosecutor: |
Office of the Commonwealth Director of Public Prosecutions |
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Counsel for the Defendant: |
Mr R Richter QC with Mr N Clelland SC, Dr S McNicol, Ms L K Walker and Mr A J Palmer |
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Solicitor for the Defendant: |
Arnold Bloch Leibler |
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Counsel for Subpoenaed Parties Australian Competition & Consumer Commission, Commonwealth Director of Public Prosecutions and Australian Government Solicitor: |
Ms K Judd SC and Mr R Attiwill |
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Solicitor for Subpoenaed Parties Australian Competition & Consumer Commission, Commonwealth Director of Public Prosecutions and Australian Government Solicitor: |
Australian Government Solicitor |
27 August 2008:
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Counsel for the Prosecutor: |
Ms F Thompson |
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Solicitor for the Prosecutor: |
Office of the Commonwealth Director of Public Prosecutions |
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Counsel for the Defendant: |
Mr R Richter QC with Mr N Clelland SC, Dr S McNicol, Ms L K Walker |
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Solicitor for the Defendant: |
Arnold Bloch Leibler |
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Counsel for Subpoenaed Party Amcor Limited |
Mr M Darke |
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Solicitors for Subpoenaed Party Amcor Limited |
Allens Arthur Robinson |
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Dates of Hearing: |
12 and 27August, 2008 |
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Date of Judgment: |
9 September 2008 |
