FEDERAL COURT OF AUSTRALIA

Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd [2019] FCA 2200

ORDERS

THE COURT ORDERS THAT:

1.    The applications by each of the accused to sever and temporarily stay counts 1 to 3 in the further amended indictment dated 7 August 2019 be dismissed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    These are the reasons for orders made on 26 November 2019.

Introduction

2    The prosecutor, the Commonwealth Director of Public Prosecutions, alleges in a further amended indictment that the three accused, a company and two individuals, committed between them eight criminal cartel offences under the Competition and Consumer Act 2010 (Cth) (Competition Act). The trial by jury is set down for approximately six weeks, commencing on 3 February 2020, in Melbourne. This is an adjudication of interlocutory applications by all three accused to sever and temporarily stay counts 1 to 3 in the indictment, being related counts brought against each of them.

3    The basis for the applications is an assertion that the alternative bases for guilt advanced by the prosecutor will require extended unanimity directions of impossible complexity, depriving the accused of a fair trial on counts 1 to 3. The principle area of dispute to be resolved concerns the extent to which such directions will be required and whether they are capable of being effective so as to meet the requirements of a trial in which, inter alia, the relevant law is able to be clearly and correctly explained to the jury: see Mraz v The Queen (1955) 93 CLR 493 at 508 and 514. Section 5 of the Jury Directions Act 2015 (Vic), which is picked up and applied to this proceeding as surrogate federal law by s 68C(5) of the Judiciary Act 1903 (Cth), contains guiding principles on this topic, expressed as the intention of the Victorian Parliament. In particular, s 5(4) provides that a trial judge, in giving directions to a jury in a criminal trial, should:

(a)    give directions on only so much of the law as the jury needs to know to determine the issues in the trial; and

(b)    avoid using technical legal language wherever possible; and

(c)    be as clear, brief, simple and comprehensible as possible.

4    The above guidelines reflect a commonplace objective in jury trials. However the Jury Directions Act goes further in supporting those objectives by creating a regime requiring parties to seek directions actively and, in the greater part, to dispense with the giving of directions that are not sought.

Overview

5    The first accused, The Country Care Group Pty Ltd (Country Care) is a company based in Mildura that sells a range of assistive technology products, including those designed to assist the elderly and those with injuries or disabilities cope with day to day living. The second accused, Mr Robert Hogan, is the managing director of Country Care. The third accused, Mr Cameron Harrison, is a former employee of Country Care.

6    In addition to selling assistive technology products through its retail business, Country Care was one of the successful tenderers to supply such products under government programs. One such government program was run by the Commonwealth Department of Veterans’ Affairs (DVA) and referred to in the particulars of the alleged cartel provision as the Mobility and Functional Support Tender (MFS Tender). That success was manifested in two agreements, the first made in 2011 for five years until 30 April 2016, and the second from 1 May 2016, each covering a list of goods. The 2011 MFS Tender was for over 2,500 goods. The 2016 MFS Tender was for over 8,000 goods. Included in the evidence on the applications were photographs illustrative of a number of the diverse range of goods in each MFS Tender list.

7    In order to supply products under the MFS Tender nationwide, Mr Hogan developed a nationwide network of subcontractors for Country Care from existing independent assistive technology businesses. He called that network “The Country Care Group” and referred to the subcontractors as “members”. The prosecutor’s case is that the Country Care Group members agreed to supply eligible beneficiaries under the MFS Tender, and also supplied such goods to the general public.

8    The prosecutor’s case is that from at least November 2012, Mr Hogan became concerned that the DVA might become aware that products supplied by Country Care, including via Country Care Group members, were available at a lower price directly from such members. It is the conduct in responding to that concern, summarised below, that is the basis for counts 1 to 3 in the indictment, being an alleged attempt, over a period of time, to induce Country Care Group members to enter into an agreement or reach an understanding having the purpose or effect of preventing lower prices than on the MFS Tender list being advertised by Country Care Group members.

9    Counts 1 and 2 in the indictment allege that Country Care and Mr Hogan each attempted to induce Country Care Group members to enter into an agreement, or make an arrangement, that contained a cartel provision, knowing or believing that such an agreement or arrangement would contain such a provision, contrary to s 44ZZRF(1) of the Competition Act. Count 1 in the indictment, which sufficiently describes the core allegations for the purposes of counts 2 and 3, is as follows:

… 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.

10    Count 3 in the indictment alleges that the third accused, Mr Cameron Harrison, “aided, abetted, counselled or procured” Mr Hogan’s attempt.

11    The indictment contains the following particulars in relation to counts 1 to 3:

(1)    The “cartel provision” is particularised as:

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 current Mobility and Functional Support Tender at below the contracted prices.

(2)    The “members” of the Country Care Group are particularised as those set out in the second schedule to the indictment, being a list of entities.

The Prosecution Case Notice

12    Part III, Division 1A, Subdivision C of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) deals with pre-trial matters, including pre-trial hearings of the kind giving rise to this adjudication, and a regime requiring written disclosure of the case for the prosecution, a written response by each accused, and a prosecution response (that is, reply) to the response by each accused: see in particular ss 23CD to 23CH. The prosecution (and each accused) has complied with those disclosure obligations. The prosecutor’s disclosure document has undergone a number of revisions, and further revision is required, in part due to the prosecutor abandoning reliance upon recorded interviews with Mr Harrison on the first day of the hearing of these interlocutory applications.

13    The current version of the prosecutor’s disclosure document is a Further Amended Notice of the Case for the Prosecution (Prosecution Case Notice). The Prosecution Case Notice has provided a convenient and reasonably concise foundation for the hearing and determination of the present applications. Only very limited evidence has been required to supplement the information in the Prosecution Case Notice, including correspondence by which further particulars have been sought and furnished.

The relevant provisions

14    Section 44ZZRF(1) of the Competition Act relevantly provided during the charged period (now s 45AF(1)):

Making a contract etc. containing a cartel provision

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.

15    The fault elements for an offence under s 44ZZRF(1) are:

(1)    for the conduct element in paragraph (a), the default fault element of intention: see s 5.6(1) of the Criminal Code (Cth);

(2)    for the circumstance or result element in paragraph (b), knowledge or belief: see s 44ZZRF(2).

As will be seen, the distinction between the conduct element, and the circumstance or result element, assumes particular importance in these applications, yet is blurred in the arguments advanced in the submissions for the accused.

16    Section 79(1) of the Competition Act relevantly provided the basis for the attempt to induce charges against Country Care and Mr Hogan, and the accessory charge against Mr Harrison:

Offences against section 44ZZRF or 44ZZRG

(1)    A person who:

(aa)    attempts to contravene; or

(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; or

(c)    is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of; or

(d)    conspires with others to contravene;

a cartel offence provision is taken to have contravened that provision and is punishable:

(e)    in a case where:

(i)    the provision is a cartel offence provision; and

(ii)    the person is not a body corporate;

by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both; or

(f)    in any other case–accordingly.

17    Had Country Care and Mr Hogan been charged with an attempt to contravene a cartel offence provision under s 79(1)(aa) of the Competition Act, instead of the present charges of attempt to induce a person to contravene a cartel offence provision under s 79(1)(b), s 11.1(2) to (6) of the Criminal Code would have applied by virtue of s 79(1AB). Section 11.1(2) to (6) of the Criminal Code codifies the law of attempt for federal offences. Perhaps by a legislative oversight, s 11.1(2) to (6) of the Criminal Code does not apply to the attempt to induce offence. There will therefore be a need to determine at the trial of counts 1 to 3 what the legal content of the attempt to induce offence is, an added complexity, aided to an extent by civil penalty cases on the topic. As to the accessory charge against Mr Harrison of aiding, abetting, counselling or procuring a person to contravene a cartel offence provision, the codification in s 11.2(2) to (5) of the Criminal Code applies by virtue of s 79(1A) of the Competition Act.

18    The “cartel provision” as particularised in the indictment is reproduced above at [11(1)]. The term “cartel provision” in s 44ZZRF(1)(b), as referred to in the indictment, was defined in s 44ZZRD (now renumbered as s 45AD). At the relevant time, s 44ZZRD(1) provided:

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.

19    The cross-referenced provisions in s 44ZZRD(2) (or (3) and (4)) (now s 45AD(2) to (4)) are detailed and complex when viewed as a whole. However, only parts of the definition of the “purpose/effect condition” in s 44ZZRD(2), and only parts of the “competition condition” in s 44ZZRD(4) are relied upon by the prosecutor and therefore relevant. The relevant parts of s 44ZZRD(2) and (4) are:

Purpose/effect condition

(2)    The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly:

(a)    fixing, controlling or maintaining; or

(b)    providing for the fixing, controlling or maintaining of;

the price for, or a discount, allowance, rebate or credit in relation to:

(c)    goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; …

…

Competition condition

(4)    The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:

(a)    are or are likely to be; or

(b)    but for any contract, arrangement or understanding, would be or would be likely to be;

in competition with each other in relation to:

(c)    if paragraph (2)(c) … applies in relation to a supply, or likely supply, of goods or services—the supply of those goods or services; …

20    Confined to the relevant parts the prosecutor relies upon, the composite effect, when read with the attempt to induce charge, is that:

(1)    the purpose/effect condition alleged is that the cartel provision would have had the purpose of, or would have been likely to have had the effect of, directly or indirectly providing for the maintaining of the price for goods supplied by the parties to the proposed arrangement or understanding;

(2)    the competition condition alleged is that two or more of the parties to the proposed arrangement or understanding were in competition with each other in relation to the supply of those goods.

21    The Prosecution Case Notice states the overall allegations as to the purpose/effect condition and the competition condition at [9] to [13], reproduced below at [93] in the section dealing with the issue of intention.

Indictments in general

22    The parties were largely in agreement with respect to the key principles regarding the requirements of an indictment. The accused seek to apply by analogy a range of appellate authority decrying the overloading of indictments with too many charges, and over reliance on uncharged acts, mostly arising from historical sexual offence prosecutions, but also from complex fraud cases. The accused submit that there is a close analogy between:

(1)    too many counts in an indictment giving rise to unfairness and oppression seriously adversely impacting upon an accused, a jury and trial judge (to which may be added the prosecution as well); and

(2)    too many pathways to a jury verdict requiring unanimity directions within a smaller number of counts in an indictment which have the same effect in terms of unfairness and oppression.

23    The prosecution do not take issue with the principles relied upon by the accused, but maintain that the complexity in this case, and relevantly in relation to counts 1 to 3 in the indictment, is no more than a function of the offence provisions in play. The prosecution submit that the unfairness and oppression alleged is not made out on the case it proposes to take to trial.

Overview of the competing arguments and of the conclusion reached

24    Given the terms of the legislation outlined above, it is unsurprisingly common ground that the criminal cartel offences charged are inherently complex, especially so on the facts and circumstances relied upon by the prosecutor in this proceeding. However, the prosecutor and the accused characterise the way in which the prosecution case is proposed to be brought very differently, making the complexity of the jury directions required either utterly unworkable, or methodically workable.

25    An important difference between the positions of the prosecutor and the accused concerns the requirement to give certain directions at all. Generally speaking, the fewer the directions required, the less complex the jury deliberations are likely to be. The plain intent of the relevant provisions of the Jury Directions Act is to reduce, so far as possible, the number and complexity of directions given to a jury, while making sure all necessary directions are given.

26    The accused analyse the allegations, in the way that the prosecutor seeks to prove them, as having the following critical components:

(1)    proof of a course of conduct (and the corresponding fault element of intent), relying upon any one or more of 12 events over a two year period, by which Country Care and Mr Hogan are alleged to have attempted to induce a multilateral agreement or understanding with members (course of conduct issue);

(2)    proof of any of four alternative intention allegations as to the attempt to induce charged, in relation to proving the underling purpose/effect condition sub-element of the cartel provision element charged, if the agreement or understanding had been entered into or reached as alleged to have been attempted to be induced:

(a)    directed to the proscribed purpose, or alternatively the proscribed effect, in maintaining prices paid by Country Care to members in competition for the supply of goods in the MFS Tender list to DVA beneficiaries (described by the accused as the subcontracting price purpose or price effect); and/or

(b)    directed to the proscribed purpose, or alternatively the proscribed effect, in maintaining prices paid to members in competition for the supply of goods in the MFS Tender list to the general public (described by the accused as the public supply price purpose or price effect);

(intention issue)

(3)    proof of competitive relationships, to prove the underlying competition condition sub-element of the cartel provision element charged, in the supply of goods to:

(a)    DVA beneficiaries on behalf of Country Care, relying upon up to 26 competitive relationships; and/or

(b)    the general public, relying upon up to 27 competitive relationships; and

(competitive relationships issue)

(4)    proof of competition in relation to any one or more of up to 2,581 products in the 2011 MFS Tender list, and up to 8,310 products in the 2016 MFS Tender list (products issue).

27    The accused assert that each of the four issues for the jury listed above will require unanimity directions. They submit that this will result in no less than, and potentially considerably more than, 3.2 million alternative paths of reasoning to guilt, by reason of the following equation:

    up to 12 bases for proof of the course of conduct element

multiplied by

    4 alternative intention allegations as to the attempt to induce charge, in relation to proving the purpose/effect condition sub-element of the cartel provision element

multiplied by

    26 separate entities potentially in competitive relationships, to prove the competition condition sub-element of the cartel provision element (focusing only on sales under the MFS Tender, not sales to the general public said to involve 27 separate entities potentially in competitive relationships)

multiplied by

    up to 2,581 products in the 2011 MFS Tender list (disregarding for the moment the 8,310 products in the 2016 MFS Tender list, which also does not take into account changes in the tender products over the charged period)

equals at least 3,221,088 alternative paths of reasoning to guilt.

28    The above was a rhetorical device, evidently designed to illustrate what was said to be the complexity of the task that the jury would face because of the way in which the prosecutor’s case is presently framed. I did not understand it to be suggested that even if all of the difficulties asserted were accepted to exist, and all of them were addressed to the complete satisfaction of the accused, it would be necessary or desirable to direct the jury on whatever asserted alternative paths of reasoning to guilt remained, as opposed to deploying a decision-making tree of the kind permitted by s 67 of the Jury Directions Act, discussed below at [31]. Accordingly, it is better to focus on the asserted constituent components said to produce this burden of reasoning upon the jury.

29    Based upon a detailed, and in parts mathematical, exposition of the above elements addressed below, the stated basis for the application made by Country Care and Mr Hogan from their primary written submissions, adopted by Mr Harrison, is that:

The prosecution case on counts 1 and 2 gives rise to a multitude of alternative bases upon which the jury will be invited to find the accused guilty.

The multitude of alternative bases for the prosecution case would require an equivalent multitude of complex extended unanimity directions, each of which would identify a discrete alternative basis for guilt.

For the purposes of a jury’s deliberations, the multitude of alternative bases of guilt presented by the required extended unanimity directions is equivalent to an indictment comprising the same alternatives specifically averred in separate alternative counts.

On established principles, any such indictment would be severed to prevent oppression to the accused, the trial judge and the jury.

By parity of reasoning, this Court should not endorse the oppression and prejudice that would result if a jury was left to grapple with the volume and complexity presented by the vast multitude of alternative bases of guilt currently embedded within the prosecution case in relation to counts 1 and 2.

The appropriate remedy is to sever counts 1 and 2 from the indictment and order that the proceedings in relation to those counts are stayed unless and until the prosecution revises its case, so as to very substantially reduce the volume and complexity of directions and issues for determination by the jury, such that the oppression and prejudice, identified in established authority, does not arise.

As count 3, in relation to the co-accused Harrison, is cognate with counts 1 and 2, the same remedies should be applied in relation to count 3.

30    The prosecution counters by submitting that the essence of its case, while inherently complex as a result of the offence provisions and their subject matter, is not anywhere near as complex as the accused assert, entailing proof beyond reasonable doubt of no more than the following:

(1)    within the charged period, Country Care and Mr Hogan engaged in a single ongoing attempt to induce the members listed in the second schedule to the indictment to make an arrangement or arrive at an understanding, knowing or believing that the arrangement or understanding would contain a provision that those members would not advertise goods for sale below the prices that Country Care contracted with the DVA to sell under the MFS Tender;

(2)    at least two of the parties to the proposed arrangement or understanding were in competition, within the meaning of s 44ZZRD(4) of the Competition Act, to supply the goods that Country Care contracted to supply under the MFS Tender (Tender Goods) or to supply such goods to the general public – the two or more parties alleged to be in competition are confined to 16 members as detailed in schedule 6 to the Prosecution Case Notice, especially at [96] to [103], confined to the subset of members from that list who were in competition with one another in one or more of seven stipulated geographic areas (Mildura, Bendigo and surrounds, Sunbury, Melbourne Metropolitan area, Brisbane and surrounds, Sydney and surrounds, and Adelaide and surrounds);

(3)    the provision in the arrangement or understanding had the purpose or likely effect of maintaining the prices that:

(a)    members invoiced Country Care for supplying Tender Goods; and/or

(b)    members charged the general public for supplying Tender Goods,

and Country Care and Mr Hogan knew or believed the provision had that purpose or likely effect; and

(4)    in relation to Mr Harrison, he intentionally aided, abetted, counselled or procured the above conduct by Mr Hogan.

31    As the prosecutor’s argument was developed in writing prior to the hearing of the applications and orally at that hearing, the first three issues raised by the accused – the course of conduct issue, the intention issue and the competitive relationships issue – could be addressed by the jury being directed, sequentially and by way of a decision-making tree of the kind permitted by s 67 of the Jury Directions Act, that they had to be unanimous:

(1)    as to any of the 12 bases for conduct being shown to have taken place before taking any such basis into account;

(2)    as to any of the four alternative intention allegations being made out, before taking any such intention into account; and

(3)    as to any one or more competitive relationship(s) alleged being shown to exist before taking any such relationship into account.

32    As to [31(1)] above, regarding the prosecutor’s acceptance of the assertion by the accused that there must be unanimity as to any of the 12 bases for conduct being shown to have taken place before taking any such basis into account, this was expressed in written submissions dated 4 November 2019, the week before the hearing of these application as follows:

(1)    as part of [5]:

… the acts relied on in relation to charge 1 (against the First Accused) can appropriately be characterised as a single ongoing attempt by the First Accused to induce the making of an arrangement or the arrival at an understanding containing a cartel provision, which comprised a series of individual instances, each of which would be capable of constituting the relevant offence of attempt in their own right, by which the first accused engaged in a single course of conduct constituting the relevant attempt. …

(2)    as part of [41]:

There is no warrant for adopting the elaborate and unnecessary form of directions proposed by the accused in this case. Rather, the trial judge could readily give the relevant unanimity directions on the particular matters of concern to the accused (as described in paragraph 32 above) by giving directions to the effect that, before reaching a guilty verdict, the jury would need to be unanimous:

(a)    that the accused engaged in a course of conduct between the relevant dates which constituted the attempt (for charges 1 and 2), or the aiding and abetting (for charge 3), and, for each charge, as to the particular action based on which they were so satisfied; …

33    The part of the prosecutor’s submissions at [5] reproduced at (1) in the preceding paragraph does not of itself contain any concession that unanimity is required, but rather is submitting that any one or more of the 12 events is of itself capable of proving the attempt to induce alleged by way of a course of conduct. The meaning to be gleaned from the part of the prosecutor’s submissions at [41] reproduced at (2) in the preceding paragraph is less than clear, but must be taken to constitute such a concession. It does not appear to have been thought through properly in light of the discussion below.

34    As will be seen, in further submissions invited by the Court, the prosecution ended up recanting from [31(1)] above, instead asserting that a unanimity direction was not required in respect of the course of conduct evidence directed to proving the conduct element, but only as to that element itself.

35    As to the fourth issue concerning the products, the prosecutor contends that the jury will not be required to descend into the detail of which of the particular Tender Goods were the subject of competition, characterising the argument for the accused as, in effect, being unnecessarily granular. On that argument, there was no need for any unanimity direction as to any individual product or products. The competing arguments on this topic are starkly different.

36    For the reasons below, I have concluded that the accused overstate the difficulties presented by the complexity of the case that the prosecution presently seeks to bring in relation to counts 1 to 3 of the indictment, largely because the nature and extent of the unanimity directions that are required are not as extensive as asserted. However, I remain concerned, for the reasons expressed below, as to the burden of requiring the jury to be given too many directions as to unanimity in the context of already complex factual issues arising from complex offence provisions. That is, my concern is a practical one, rather than a conceptual one, but one that will be required to be considered by the prosecutor and addressed in a number of ways.

37    The accused, understandably and reasonably enough in adversarial criminal proceedings, do not wish to be drawn into the process of recasting the prosecution case against each of them. However by them exercising that undoubted right, it has been left to me to set the parameters that I consider appropriate to render the trial of the impugned counts both manageable and fair for all concerned – each of the accused, the prosecution, the jury, and, only collaterally, the trial judge.

38    The prosecution similarly declined to engage on the topic of paring back their case, preferring instead to await my ruling.

39    The directions to be made to the jury in summing up will follow the process dictated by the Jury Directions Act. However, it is now a matter for the prosecution to respond urgently to the issues that I have determined necessary to be addressed as soon as possible before the commencement of the trial, as foreshadowed on 26 November 2019 at the time of making the order dismissing the applications to sever and temporarily stay counts 1 to 3 in the indictment.

The competing arguments in detail and their resolution

40    It is convenient to frame the discussion around the four issues agitated by the accused as they relate to Country Care and Mr Hogan. Mr Harrison’s situation flows from that discussion as a charged accessory, applying the provisions of the Competition Act and the Criminal Code identified above. That additional complexity must be kept steadily in mind in the evaluative process to follow.

Course of conduct issue

41    The accused identify, and the prosecutor confirms, that part of the case proposed to be advanced at the trial is that there were twelve separate events in the period between 13 May 2014 and 28 April 2016 forming the substance of the course of conduct by which it is alleged that Country Care and Mr Hogan attempted to induce members to make an agreement or enter into an understanding. The reference below to attendance at such an event by a Country Care Group member includes a reference to a person representing that member.

42    Part of the course of conduct relied upon by the prosecutor, including the 12 events, is that between June 2015 and 28 April 2016, Mr Hogan and Mr Harrison are alleged to have been involved in drafting and sending proposed contracts designed to govern the relationship between Country Care and the Country Care Group members, defined in the Prosecution Case Notice as the DVA Membership Agreement. The DVA Membership Agreement, in draft and final form, included in particular a marketing clause relied upon by the prosecutor as part of its case as to the cartel provision pleaded in the indictment.

43    The 12 alleged individual events covering most, if not all, of the alleged course of conduct upon which the prosecutor relies, and which the accused contend contribute to undue complexity in the directions required to be given to the jury, in simplified form sufficient for present purposes, are:

(1)    a Country Care annual conference at St Kilda, Melbourne on 13 May 2014 attended by Country Care and 39 Country Care Group members listed in schedule 1 to the Prosecution Case Notice, during which Mr Hogan delivered several presentations, including slides exhorting members never to advertise products on their websites for less than the contracted price (said to be a reference to the MFS Tender), this being a theme said to have been repeated or restated as part of the following events;

(2)    following the 13 May 2014 St Kilda conference, an email sent on 23 May 2014 by Mr Harrison on behalf of Country Care with the knowledge of Mr Hogan, to 43 Country Care Group members listed in schedule 2 to the Prosecution Case Notice, containing a Dropbox link to papers presented at that conference;

(3)    a Country Care annual conference at Luna Park, Sydney, on 12 May 2015 attended by Country Care and at least nine Country Care Group members identified in footnote 60 to the Prosecution Case Notice out of a larger list of invitees;

(4)    a Country Care New South Wales state meeting at the Stamford Hotel in Sydney in August 2015 attended by Country Care and at least four Country Care Group members identified in footnote 66 to the Prosecution Case Notice;

(5)    a Country Care Queensland state meeting for Country Care Group members in 2015, attended by Country Care and at least five Country Care Group members identified in footnote 67 to the Prosecution Case Notice;

(6)    a 24 September 2015 annual general meeting of the Peek Care Group (of which Country Care was a member) attended by at least five Country Care Group members identified in footnote 70 of the Prosecution Case Notice;

(7)    a 20 July 2015 email sent by Mr Harrison in advance of an upcoming meeting to Country Care and an unspecified number of Country Care Group members, mostly based in Victoria and Western Australia, being among the members listed in schedule 3 to the Prosecution Case Notice, attaching a draft of the DVA Membership Agreement;

(8)    a 27 July 2015 email sent by Mr Harrison, in the same terms as the 20 July 2015 email, to an unspecified number of Country Care Group members largely based in Queensland, being among the members listed in schedule 3 to the Prosecution Case Notice, attaching a draft of the DVA Membership Agreement;

(9)    on about 4 August 2015 an email sent by Mr Harrison on Mr Hogan’s instruction, in the same terms as the 20 July 2015 and 27 July 2015 email, to Country Care and to an unspecified number of Country Care Group members in New South Wales, largely based in Queensland, being among the members listed in schedule 3 to the Prosecution Case Notice, attaching a draft of the DVA Membership Agreement;

(10)    a mid-2015 face-to-face meeting between Mr Hogan and Mr Adam Mortley from one of the Country Care Group members, during which Mr Hogan is alleged to have repeated a message about holding the “same front” on tender pricing;

(11)    a 6 August 2015 face-to-face meeting between Mr Hogan and Mr Andrew Cuddihy from one of the Country Care Group members, wherein Mr Hogan is alleged to have said that the DVA would look at his pricing and it would pull every members margin down because the Department googled the pricing submitted by Country Care; and

(12)    On 28 April 2016, Mr Harrison, on Mr Hogan’s instructions, circulated a finalised DVA Membership Agreement to 43 Country Care Group members as listed in schedule 5 to the Prosecution Case Notice, which contained a clause which was the same as the draft sent on 20 July 2015.

44    In written and oral submissions, the accused assert that the jury must be unanimous as to any of the 12 events summarised in the preceding paragraph before any of them can be taken into account, such that each event would need to be the subject of a unanimity direction. In pre-hearing written submissions, the prosecutor seemed to accept that requirement, although there was a measure of ambiguity as to the content of that concession (reproduced at [32] above).

45    At the oral hearing, the prosecutor conceded that unanimity was required as to any of the 12 events before the jury could rely upon any of them, as asserted by the accused. Upon considering the material more carefully following the hearing and the reserving of my decision, and in particular reviewing the authority relied upon, it was not apparent to me why that was so. I was concerned that the parties may have been agreeing to a requirement to give a direction to the jury that was legally incorrect, or at least unnecessary.

46    An important part of my function as the trial judge to only give directions to the jury that are necessary. It is an equally important function not to give directions that are unnecessary, let alone directions that are wrong: see s 5(4)(a) to (c) of the Jury Directions Act, reproduced above at [3]. For that reason, two days after the hearing of the applications, on 14 November 2019, my associate emailed the parties inviting further concise submissions on the need for a unanimity direction as to the individual 12 events relied upon to prove the course of conduct and thereby the conduct element (14 November email).

47    The 14 November email directed attention to Pratten v R [2014] NSWCCA 117, especially at [30] to [82], and the authorities there cited and discussed. The email then stated:

… the authorities may suggest that a possible way to characterise the underlying question arising in the circumstances of this case is whether the prosecution case on the conduct element is properly to be characterised as either:

1.    Involving one or more of the events each independently relied upon by the prosecutor (with 12 events in particular identified by the accused) as a pathway to the proof beyond reasonable doubt on the conduct element, requiring unanimity as to any such event before it may be taken into account by the jury, akin to the reasoning in Lane v The Queen [2018] HCA 28; 357 ALR 1 at [43].

or

2.    Involving a single course of conduct with the evidence of the events over the two-year period relied upon by the prosecutor, including but not limited to the 12 identified events, requiring unanimity only as to the conclusion to be reached on whether the conduct element has been established beyond reasonable doubt, subject to the note below. 

If that is an apt dichotomy of appropriate characterisations, the first characterisation would seem to require unanimity directions as to each event relied upon by the prosecution. Any directions required by a trial conducted upon the basis of the second characterisation would seem to turn on how the case was presented, how the evidence emerged at a trial and on the parties ultimate submissions.

48    The parties were also advised in the 14 November email that, because of the importance of this issue not just to the present applications but also to the conduct of any trial of counts 1 to 3 in the indictment, the focus of any submissions should be on assisting the Court in arriving at the correct conclusion and to that end the parties should not consider themselves confined or necessarily bound by prior arguments or submissions if there is a considered need to clarify or even depart from them, drawing attention to r 1.04(2)(d) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth). The overarching purpose of the Rules is to facilitate the fair, efficient and timely determination of criminal proceedings in the Court: r 1.04(1). Rule 1.04(2)(d) provides as one of the objectives of the overarching purpose that, as far as possible, all preliminary issues are to be heard and adjudicated before the start of the trial.

49    The Rules are also to be read in the context of s 23CC of the Federal Court Act, which provides, when read with s 23CB(2)(b) and (e), that objections to an indictment and submissions that a matter should not proceed to trial (except by reason of orders relating to indictments made under Subdivision B, disclosure issues or admissibility of evidence) cannot be raised during the trial unless the Court is satisfied that to not do so would be contrary to the interests of justice.

50    The following submissions have been received in response to the 14 November email:

(1)    submissions by Country Care and Mr Hogan dated 15 November 2019;

(2)    submissions by Mr Harrison dated 19 November 2019;

(3)    submissions by the prosecutor dated 19 November 2019;

(4)    submissions in reply by Country Care and Mr Hogan dated 20 November 2019; and

(5)    submissions in reply by Mr Harrison dated 22 November 2019.

Apart from introductory paragraphs, each of these submissions are reproduced below, rather than being paraphrased or summarised. That has been necessary as all of these submissions have been wholly in writing, and it is undesirable to lose the nuance of each point made.

51    The submissions of 15 November 2019 for Country Care and Mr Hogan, after restating the questions posed in the 14 November email, were in substance a restatement of their case in prior oral and written submissions as follows:

[3]    The short answer to this question is that the prosecutor has consistently maintained that any single one of the 12 alleged episodes is sufficient to establish the essential element of conduct constituting an attempt to induce:

(a) the prosecutor’s further particulars, by letter dated 26 July 2019, maintain (paragraphs 3-4):

the prosecution need only prove that the attempt to induce related to an arrangement or understanding between parties which included at least two parties which (were relevantly in competition) .. .

In proving this element, it is open to the prosecution to rely on a party which was the subject of some, but not all, of the conduct alleged as comprising charges 1 to 3.

(b) as confirmed by the example then given by the prosecutor in relation to Lovedays, it follows that the prosecutor relies on each of the 12 specified episodes of conduct in relation to any parties that were in competition – even if those parties were not involved in the same episodes of conduct;

(c) therefore, at the minimum, the prosecutor puts the case on the basis that the charge can be proven if only two parties were in competition – and each of those two parties were involved in at least one episode of conduct – even if those were different episodes of conduct;

(d) this application, and the basis on which it is advanced for the accused, were founded upon the Prosecution Outline and Particulars maintaining alternative factual bases of guilt (both on this issue of conduct and others);

(e) the prosecutor has continued to maintain reliance upon alternative factual bases of guilt throughout written and oral submissions on this application; and

(f) this was specifically confirmed in oral submissions on 11 November 2019 when – consistently with the prosecution particulars referred to above – senior counsel for the prosecutor accepted that extended unanimity directions would be required in relation to the 12 events relied upon on the issue of conduct.

[4]    It follows that the prosecution case on conduct is squarely put on 12 alternative factual bases, such that there is no conceptual or rational basis to distinguish either Lane or Pratten.

[5]    To put it another way, this is clearly not an ‘all or nothing case’, as was unsuccessfully argued by the Crown on the appeal in Pratten (see at [64]–[79]).

52    As will be seen, while it is correct that this is not an all or nothing case in relation to the 12 events, I am unable to accept important parts of that submission. In particular, I am unable to accept that either the Prosecution Case Notice or the particulars referred to entailed the advancing of a case that necessarily called for a unanimity direction on the 12 events, even if the prosecutor had maintained a case that any one or more of the 12 events was sufficient to establish the attempt to induce, rather than leave the totality of that evidence for evaluation by the jury as to whether or not the conduct element had been established beyond reasonable doubt.

53    The prosecutor’s suggestion that any one of the 12 events was sufficient to establish the conduct element had the unfortunate consequence of introducing an unnecessary degree of complexity into their case, even if the evidence might have been of that strength or character. As the supplementary submissions for the prosecutor reproduced below make clear, the prosecutor no longer relies upon any one or more of the 12 events in isolation as being necessary to establish the conduct element. The prosecutor also no longer accepts that unanimity in relation to any one specific act is necessary to establish the conduct element. Rather, it will be for the jury to determine, on the basis of the evidence that it accepts, whether they are satisfied on the evidence as a whole, beyond reasonable doubt, that the element has been established – an ultimate conclusion that will have to be unanimous.

54    The 19 November 2019 submissions for Mr Harrison in response to the 14 November email adopt those by Country Care and Mr Hogan and make the following supplementary submissions (inserting footnotes into the text):

[3]    The prosecution contended in its written submissions that each of the 12 identified events is “capable of constituting the relevant offence of attempt in their own right” ([5] prosecution submissions). Specifically in relation to Mr Harrison, the prosecution’s response to a request for further particulars (found at paragraphs 3 and 4 of the letter to Mills Oakley of 26 July 2019 which forms part of the tender documents for the interlocutory hearing) was to like effect, as was its position during the course of oral argument in the recent interlocutory hearing.

[4]    As was pointed out in Pratten v R [2014] NSWCCA 117 at [51] by reference to R v Walsh [2002] VSCA 98 at [57] and other authority, and is perhaps obvious, the nature of the legal and factual elements of each case must be considered on the question of (extended) unanimity. Subject to that, the applicable principle is that a jury must be unanimous as to the factual basis of liability where there are alternative factual bases: Pratten at [41] and see [65]-[79], esp [78]-[79] for the analysis of the result in that case.

[5]    The position in the present case is akin to one where there are separate representations, and proof of any one representation would entitle the jury to convict the accused of obtaining property by deception. In those circumstances, the jury cannot convict unless they are all agreed upon the act which constitutes the conduct element (with the possible exception of cases involving allegations of conspiracy, which is not relevant in the present case): Walsh at [57]; Pratten at [47]-[50] and the authorities cited there.

[6]    It does not matter whether the acts relied upon are characterised as particulars, or as a course of conduct. Where the evidence leaves open the possibility of a finding that only one or some of the particulars have been established, then a direction as to the need for unanimity will be required; the jury must be agreed as to the particular words or conduct constituting the deception: Magnus v The Queen [2013] VSCA 163 at [47]-[49].

[7]    As part of the process of considering this case and the application of the first characterisation identified in its invitation, the Court would note that the facts relating to the 12 identified events in the present case are significantly disparate in location, nature and content including in the following respects:

a.    as to the alleged subjects of the attempt to induce (ranging from one to forty-three members of The Country Care Group Pty Limited);

b.    as to the means of the alleged attempts to induce (for example, a presentation at a conference or emails to members of The Country Care Group Pty Limited);

c.    as to the location of the alleged attempts to induce (for example, meetings in St Kilda, Victoria; Luna Park, Sydney; Silverwater, Sydney; Marrickville, Sydney; Stamford Hotel, Sydney; Westin Hotel, Sydney; Novotel, Brisbane airport); and

d.    as to time at which the alleged attempts to induce occurred (across the period of almost two years from 13 May 2014 to 28 April 2016).

[8]    It follows that charge 1 is properly characterised as involving one or more of 12 events each independently relied upon by the prosecutor as capable of amounting to proof beyond reasonable doubt on the conduct element. The consequence is that the first of the two competing characterisations referred to in the Court’s invitation is submitted to be the correct approach, not only for the conduct element but in relation to the consequential path through the other elements of the offence in question.

55    The observations above concerning the further submissions for Country Care and Mr Hogan apply equally to these further submissions for Mr Harrison in relation to the Prosecution Case Notice and particulars in the correspondence. The submissions as to the additional complexity arising from the accessory charge against him have already been noted and provide an additional reason for scrutinising the complexity of the case brought by the prosecutor for the attempt to induce charges against Country Care and Mr Hogan. That is an issue elaborated upon in some detail in the 22 November 2019 reply submissions for Mr Harrison reproduced below.

56    The 19 November 2019 submissions for the prosecutor, in response to the 14 November email are as follows (inserting footnotes into the text):

[2]    It is apposite to recall that each of charges one to three on the Indictment involve an attempt [to induce].

[3]    In the context of the former s 44ZZRJ of the Competition and Consumer Act 2010 (Cth), the Full Court of this Court observed that to establish the necessary conduct to constitute an attempt, there must be a step towards the commission of a contravention, which is immediately and not merely remotely connected with it. Further, that step must not be [merely remotely connected or] preparatory to the commission of it although it is not necessary for an attempt to be made out to establish that the relevant conduct had reached an advanced stage: Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2017] FCAFC 152 [254 FCR 311] at [93]–[94] citing with approval Trade Practices Commission v Tubemakers of Australia Ltd and Others [1983] FCA 99; (1983) 47 ALR 719 at 736 per Toohey J; Trade Practices Commission v Parkfield Operations Pty Ltd and Another (1985) 7 FCR 534 at 538-539; Australian Competition & Consumer Commission v SIP Australia Pty Limited [2002] FCA 824; (2002) ATPR 41-877 at 45-015 and The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 at 164.

[4]    The reasoning at [3], and the cases relied on to support that reasoning, are equally apt to the attempt charges in the present case.

[5]    An attempt may, by its very nature, involve an accused engaging in a number of acts over a period of time, each linked by a common purpose or design, to achieve the commission of an offence. This conduct is to be assessed by a jury along a continuum, with a requirement that they be satisfied that it has at least reached a point that is more than merely preparatory. Whether that point is reached in any given case, is a question of fact.

[6]    To take a hypothetical example to illustrate the point, an accused charged with attempting to import a marketable quantity of a border controlled drug may engage in a series of separate acts, such as registering a post box in a false name, making enquiries over the Internet to track a parcel and then making one or more telephone calls to a courier company to ascertain the location and expected delivery date of the parcel, all with a common purpose designed to achieve that end. In such a case, the focus of the jury is on the totality of the conduct, not whether any one individual act, in and of itself, is sufficient to establish the accused engaged in conduct that was more than merely preparatory. It is a conclusion to be drawn from the established facts.

[7]    In the present case, the prosecution points to several instances of conduct that when, taken in combination with one another, establish a single, continuous course of conduct in attempting to induce “members” of the Country Care Group to contravene a cartel offence provision.

[8]    As noted in the Further Amended Notice of the Case for the Prosecution (“FANCP”) at [6] to [11], the attempt [to induce] is characterised as a single, continuous course of conduct over the period covered by the offences.

[9]    Through the provision of particulars, the prosecution has identified twelve primary acts that are said to be evidence of the conduct of the relevant accused, giving rise to the single, continuous course of conduct establishing the attempt [to induce].

[10]    In specifically addressing the question posed by the email, the prosecution’s position is that the attempt [to induce] is constituted by a single course of conduct which comprises evidence of a number of acts over an extended period of time. The jury must be satisfied unanimously of the elements of the offence, beyond reasonable doubt, but not of all of the matters relied on by the prosecution in proving such elements. In other words, the prosecution adopts as correct, the second proposition proposed in the email.

[11]    Correcting the position advanced in its written submissions dated 4 November 2019 and its oral submissions made on 11 and 12 November 2019, the prosecution now, on reflection, asserts that there is no requirement for the jury to reach unanimity on the facts which inform their ultimate conclusion as to whether the relevant accused engaged in conduct that constituted an attempt [to induce].

[12]    The critical question for the jury in relation to this element of the offence, is whether the evidence satisfies them that the relevant accused engaged in conduct that was more than merely preparatory to the commission of the offence. The prosecution no longer asserts that unanimity in relation to any one specific act is necessary to establish this element. Rather, it will be a matter for the jury, based on the accepted evidence, whether they are satisfied on the evidence as a whole, beyond reasonable doubt, that the element has been established.

[13]    Understood in this way, on the question of the conduct element, there is but a single route to determine guilt namely, does the conduct as a whole, result in a conclusion that an attempt [to induce] has been constituted? As the prosecution now no longer asserts that any one act is sufficient to establish the conduct element, there is no need for a unanimity direction of the kind referred to at [39] of Pratten v The Queen [2014] NSWCCA 117 or as noted in Walsh v The Queen [2002] VSCA 98 at [57].

[14]    The prosecution asserts the separate acts are fairly and properly identified as part of the same criminal activity, that is, the attempt to induce the contravention of a cartel offence provision: R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373 at [39] citing Hunt CJ in R v Hamzy (1994) 74 A Crim R 341 at 349. See also Walsh v Tattersall (1996) 188 CLR 77 per Kirby J at 107–109 and Giretti v R (1986) 24 A Crim R 112 at 117–118.

[15]    The observations at [41] and [42] of Moussad are equally applicable to the present case to be presented by the prosecution – it relies on all of the acts to establish a single, continuous attempt [to induce] and in doing so, it matters not if each individual act is not established: see also [69]–[78] of Moussad.

57    Following the further submissions for the prosecutor, by an email sent on the morning of 20 November 2019, Country Care and Mr Hogan sought leave to file supplementary submissions in reply. That leave was granted to them and to Mr Harrison by way of an email sent a short time later (20 November email). The 20 November email also stated:

… The first and second accused may also wish to explain why paragraphs 3-5 of the letter from the prosecutor dated 26 July 2019, which address a request for particulars as to who the members of the arrangement/understanding would have been had the attempt [to induce] succeeded rather than the conduct issue, support the submission that the prosecutor’s case on the conduct element requires unanimity directions.

58    The 20 November 2019 submissions in reply by Country Care and Mr Hogan are as follows:

[2]    As explained in detailed written and oral submissions for the accused, this application has been brought on the basis of the Prosecution Outline and Particulars, which have been formulated by the prosecutor with obvious considerable thought, and with the benefit of ample time for reflection and consideration over several months as to how the prosecution case is framed.

[3]    The accused then brought this application – on the basis of how the prosecution sought to put its case – as set out in the detailed written Prosecution Outline and Particulars.

[4]    The prosecutor has had the benefit of detailed written submissions for the accused (primary submissions on 25 October 2019 and reply submissions on 8 November 2019) and extensive oral argument on 11 and 12 November 2019.

[5]    In response, the prosecutor has consistently maintained - in accordance with the particulars letter of 26 July 2019 – that the conduct element can be established by any single one of the 12 episodes of conduct identified in the Prosecution Outline. In particular, this was confirmed on the record by senior counsel for the prosecutor during oral argument.

[6]    By the supplementary submissions (filed at 5.04 on 19 November 2019) the prosecution now – ‘on reflection’ – seeks to fundamentally change its position on how the prosecutor puts its case on the conduct issue.

[7]    Given the history of these proceedings - in which the accused has consistently and squarely put their case in support of the application – and the prosecution has had very ample opportunity to consider its position – and has still put the accused to the considerable effort and costs involved in fully presenting the application – the prosecutor should not now be permitted to so fundamentally change its position for the purposes of this application – so very late in the litigation of this application.

[8]    In particular, the prosecutor should not at this very late stage of the application be permitted to resile from or qualify the particulars provided in writing on 26 July 2019.

59    These submissions in reply do not take up the invitation contained in the 20 November 2019 to explain why paragraphs 3-5 of the letter from the prosecutor dated 26 July 2019, which address a request for particulars as to who the members of the arrangement/understanding would have been had the attempt to induce succeeded, rather than the conduct issue per se, support the submission that the prosecutor’s case on the conduct element requires unanimity directions. The thrust of the submissions is, rather, that the prosecutor should be bound to adhere to the particular approach to be taken to the course of conduct evidence, even though the argument for the accused on these applications calls for the prosecutor to change the way it runs its case on counts 1 to 3 to reduce its complexity before it proceeds to trial.

60    The 22 November 2019 submissions in reply for Mr Harrison adopt the 20 November 2019 reply submissions by Country Care and Mr Hogan. Those submissions also argue that the proposed change of position by the prosecutor coincident with the second characterisation in the 14 November email does nothing to alter the need for an extended unanimity direction, and make the following further points (inserting footnotes into the text):

[3]    In its current form, the prosecution proposal is that there is no requirement for the jury to reach unanimity on facts informing the ultimate conclusion on the conduct constituting the attempt in question: Prosecution Supplementary Pre-trial Submissions 19.11.19, "PSPS" at [11). The critical question is said to be whether the evidence satisfies the jury that the relevant accused engaged in conduct that was more than merely preparatory to the commission of the offence (PSPS at [12)).

[4]    This however, is terminology drawn from s 11.1(2) of the Criminal Code Act 1995 (Cth) which is applied by s 79(1)(AB) of the Competition and Consumer Act 2010 (“the CC Act”) to s 79(1)(aa) “attempts”. That provision of the Code is not applied however, to s 79(1)(b) of the CC Act where the specific species of attempt which is relevant to this case, “attempt to induce”, is found.

[5]    In any event, even if the Code provisions referred to were applicable, the reference to being “more than merely preparatory”, while clarifying the conduct of “attempt” referred to in s 11.1(1) of the Code, and being a pre-condition for a finding of guilty for that offence, says nothing about the complexity of the issues under discussion in the subject pre-trial hearing concerning whether or not the instances of conduct relied upon require an extended unanimity direction, whether or not those instances are alleged to be part of a course of conduct or are capable of standing alone.

[6]    Also, as discussed briefly in oral submissions in the current pre-trial hearing (11.11.19, T63-66), there are different aspects of the case against Mr Harrison which impact on the issue of which acts might constitute conduct in the sense raised by the Court in its recent email. Since, in its previous iteration, the prosecution contended that Mr Harrison’s involvement in the charge faced by Mr Hogan resulted from a narrower set of instances than those alleged against Mr Hogan, it is submitted that the jury would need to be directed as to the necessity for unanimity about which of the relevant acts of Mr Hogan, if any, could be relied upon against Mr Harrison. This would itself require each of the relevant instances of conduct to be analysed in the way for which the accused have already contended.

[7]    Otherwise, different jury members might deliver a guilty verdict based [sic] following an assessment of conduct based on one or more sets of the 12 identified events alleged against Mr Hogan, but on a different set of the 12 events against Mr Harrison, depending for example, on the different involvement of each accused in the various acts.

[8]    Consistently with the propositions contended for by the accused already, the jury would still have to be directed about each of the instances of conduct and consequently, about the other "multipliers" referred to in the submissions of the first and second accused in similar terms, because it would not be discernible at the time of directions whether the jury might reason to a guilty verdict from a starting point of one, some or all instances of conduct put forward by the prosecution. That prospect means that the previous submissions of the accused hold good for the recently changed position of the Crown.

[9]    The disavowal of an acceptance of the need for extended unanimity on any one specific act does not mean that an extended unanimity direction is unnecessary.

[10]    Apart from what has previously been submitted by the accused, any concept of the jury’s satisfaction of the evidence as a whole (see PSPS at [12]) needs to accommodate the possibility that the jury may be only satisfied that one (or two, or more) of the instances of conduct has been sufficiently established to amount to evidence to ground a finding of guilt of the alleged attempt.

[11]    Otherwise for example, Mr Hogan might be found guilty of having engaged in the alleged course of conduct if six jurors were satisfied of his conduct in relation to acts 1 and 2 (the CCG annual conference in St Kilda in May 2014 and email sent by Mr Harrison shortly after that conference), and six other jurors were satisfied of his conduct in relation to acts 11 and 12 (the alleged meetings in [sic] between Mr Hogan and Mr Mortley of Lovedays in mid-2015, and between Mr Hogan and Mr Cuddihy of Patient Handling in August 2015). It is clear on the authorities that this is not permissible.

[12]    While it is trite that jurors may approach the task of fact finding differently and they need not be unanimous on the manner in which they arrive at their conclusion (for example, some jurors may accept the evidence of a particular witness about what occurred at the St Kilda conference whereas other jurors might not accept that evidence), they must be unanimous on each of the elements – including the conduct element. Such unanimity would not exist in the circumstances described in paragraph 8 above.

[13]    Such an approach would involve an impermissible pooling of individual jurors’ conclusions of fact (see Lane v The Queen [2018] HCA 28; 357 ALR 1 at [43]).

[14]    It is clear from the judgment of Phillips and Buchanan JJA (with whom Ormiston JA agreed) in R v Walsh [2002] VSCA 98 that the principle of extended unanimity is not limited to cases where the prosecution relied upon a single act. It applies where there is more than one possible factual route to a conclusion of guilt:

[43] ... The question of unanimity can arise when only one offence is charged and only one offence is proved but the jury is presented through the evidence led with more than one route by which to determine guilt. The question which has then arisen, in a number of cases now, is whether the jury must be directed to be unanimous, not only in the verdict, but also in the route by which that verdict is reached.

[15]    Whatever the prosecution’s position on unanimity, there remains in this case a very large number of different factual routes by which a jury might determine guilt.

[16]    In Lane at [23], the problem with the failure to give such a unanimity direction is it raises:

... at least as a theoretical possibility that some members of the jury might determine [the appellant’s] guilt by reference to the first fall, and others by reason of his having caused the second. Where there were two separate allegedly criminal acts left to the jury, the appellant was entitled to have the jury determine unanimously whether he was guilty in relation to one or other or both of those acts.

[17]    The need for an extended unanimity direction in the present case is even more stark given the disparate nature of the acts relied on by the prosecution (see paragraph 7 of the submissions of Mr Harrison dated 19 November 2019).

[18]    In the circumstances of this case it is not necessary to have regard to the way in which the prosecution case is ultimately conducted at trial; even on the prosecution’s proposed amended case, it is already sufficiently clear from the terms of that amended case that an extended unanimity direction will be required in the present case.

[19]    There remains scope for different evidential pathways to a finding in relation to the conduct element (for example, as noted above, through the adoption or rejection of particular evidence), but it remains necessary for the jury to be unanimous in relation to the factual basis of guilt – namely, as to the two or more acts which are capable of satisfying the conduct element of the offence charged.

[20]    The prosecution relies on R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337 for the proposition that reliance can be placed on all of the acts of conduct to establish a single continuous attempt and in so doing, it matters not if each individual act is not established (PSPS at [15], fn 5). In that case, Smart AJ interpreted (at [77]) the trial judge’s summing-up and seemingly approved it, stating his view that the jury would have understood that before they could convict (on the rolled-up fraud charge being considered there), not every act on which the Crown relied had to be proved but sufficient acts had to be proved to constitute the fraud alleged by the Crown.

[21]    Extended unanimity was not in issue in Moussad. If it had been, it would have been legitimate for the accused to have argued that, while it was not necessary to prove that the accused acted to defraud in relation to each and every one of the nine quarterly claim forms submitted to the relevant department, the jury would have to have been satisfied not only that the relevant knowledge of falsity attached to one or more claim forms (as the judge had directed), but that they had also be satisfied unanimously in that respect about the same one or more such forms. Otherwise, the accused might have been convicted on the basis of different acts of dishonest lodgment.

[22]    Consistently with the appropriate approach, where there are pleaded a number of circumstances beyond that necessary to establish the offence in question, a direction requiring unanimity should be given so that the members of the jury understand the need for there to be an accord between them in relation to the same instances of particularised conduct, as was the direction given in the trial and approved on appeal in R v Hannes No. 2 (2006) 205 FLR 217; [2006] NSWCCA 373 per Basten JA at [89], Barr and Hall JJ at [754].

[23]    Accordingly, even if the prosecution’s change of position is considered in the current application, an extended unanimity direction is still required.

[24]    For the avoidance of doubt, it may be noted that these submissions do not address the unanimity requirements relating to the other elements of charge 3 (including, for example, the competition condition.

61    The accused continue to rely upon correspondence from the prosecutor in which it is said that the prosecutor asserts that it is open to rely upon any combination of the events that are proven to have taken place, and to rely upon any subset of members which may change over time. However, as the following paragraphs demonstrate, that reliance is misplaced, because the correspondence in question was in response to a request for particulars as to which members would have been parties to the arrangement or understanding had the attempt to induce been successful. The answer relied upon was directed to the competition condition sub-element of the cartel provision element, being the circumstance or result element in s 44ZZRF(1)(b), not the conduct element in s 44ZZRF(1)(a). The response given by the prosecutor conveys different information when it is understood in the correct context.

62    The correct context is that, by a letter dated 1 July 2019, referring to earlier versions of the indictment and Prosecution Case Notice, the solicitors for Country Care and Mr Hogan sought particulars, inter alia, of all conduct by which it is alleged they attempted to induce Country Care Group members to make any arrangement or arrive at any understanding, seeking details of who engaged in the conduct, when and where it occurred and to which members it was directed (at [1(b)] and [2(b)] of the 1 July 2019 letter). The prior subparagraphs sought particulars of, inter alia, which persons/entities would have been parties to the arrangement/understanding to which the attempt to induce was directed (at [1(a)(i)] and [2(a)(i)] of the 1 July 2019 letter).

63    The prosecutor responded by a letter dated 19 July 2019, which:

(1)    at [4] (adopted at [15]), responding to the question of which persons/entities would have been parties to the arrangement/understanding to which the attempt to induce was directed said as follows:

The parties to the arrangement/understanding would, had [Country Care]’s attempt succeeded, have been [Country Care] and the members of the [Country Care Group] identified in the second schedule of the Indictment.

(2)    at [9]-[10] (and [16]-[17]) referring to paragraphs of the enclosed (then) amended Prosecution Case Notice.

64    There was nothing in the prosecutor’s response, nor in the amended or current Prosecution Case Notice, as I read them, to indicate that the prosecution had in mind that each event had to be accepted as established by all members of the jury before it could be taken into account on the question of proving the conduct constituting the alleged attempt to induce had taken place.

65    In a follow-up request for particulars dated 24 July 2019, the solicitors for Country Care and Mr Hogan did not refer to the prosecutor’s 19 July 2019 response on the topic of conduct (being [9]-[10] and [16]-[17] of that response letter). However, one of the further questions in that 24 July 2019 letter concerned exploring further who it was alleged would have been parties to the arrangement/understanding had the attempt to induce succeeded, being the question posed at [1(a)] and [2(a)] of the prior 1 July 2019 request and answered at [4] of the prosecutor’s 19 July 2019 response reproduced above.

66    The prosecutor replied in a letter dated 26 July 2019. The part of the prosecutor’s 26 July 2019 letter relied upon by the accused on this aspect of the applications was at [3]-[5]. For context it is necessary to also reproduce [2]. Paragraphs 2 to 5 of the prosecutor’s 26 July 2019 letter were as follows (inserting footnotes into the text):

[2]    We confirm that the prosecution alleges that the conduct the subject of charges 1 and 2 was an attempt to induce the making of or arrival at an arrangement or understanding to which, had the attempt succeeded, [Country Care] and all of the members of the [Country Care Group] named in the second schedule to the indictment would have been parties.

[3]    The prosecution does not need to prove, however, that [Country Care] and all the members of the [Country Care Group] named in the second schedule would, had the attempt succeeded, been parties to the relevant arrangement or understanding. In order to make out the elements of the offences alleged in charges 1 and 2, the prosecution need only prove that the attempt to induce related to an arrangement or understanding between parties which included at least two parties which:

a.     were or were likely to be; or

b.     but for any contract, arrangement or understanding, would have been or would have been likely to be,

in competition with each other in relation to the supply of relevant goods. That is, the jury need not be satisfied that the attempted inducement concerned an arrangement or understanding between [Country Care] and all of the named parties. It will be sufficient if the jury is satisfied that the parties to the relevant arrangement or understanding were a subset of the parties identified in schedule 2 of the indictment, provided that at least two (2) members of that subset of parties were in competition with each other in the relevant sense.

[4]    In proving this element, it is open to the prosecution to rely on a party which was the subject of some, but not all, of the conduct alleged as comprising charges 1 to 3. To take an example, it would be open to the jury to find that Accolade Business Services Pty Ltd (trading as Lovedays Health Services and Lovedays Aged Care Services) (Lovedays) would, had the attempted inducement succeeded, have been a party to the arrangement or understanding, and was in competition with another such party/ This would be so even though Lovedays did not receive the final version of the DVA Membership Agreement from Country Care on 28 April 2016 (accordingly, Lovedays does not appear in Schedule 5 of the Notice). In making this finding it would be open to the jury to rely on the earlier conduct directed at Lovedays, so long as that earlier conduct was capable of meeting the elements of the offence.

[5]    During the course of conduct the subject of charges 1 and 2, the membership of the [Country Care Group] changed. Accordingly, had the attempt succeeded at some point within the time period covered by those charges, the parties to the arrangement or understanding would have been [Country Care] and the [Country Care Group] members at that time.

67    The prosecutor’s 26 July 2019 letter at [2] entailed the prosecutor clarifying the answer given at [4] of the letter dated 19 July 2019, reproduced above, by making it express that the prosecutor’s case was that the conduct alleged was directed to an arrangement/understanding being reached between Country Care and all other Country Care Group members. The answer given at [3] to [5] was conveying that the prosecutor’s case is that, when it comes to the competition condition, forming a sub-element of the result or circumstance cartel condition element, the attempt to induce only had to be shown to relate to at least two such parties (as required by s 44ZZRD(4)(c)). Read in that context, there is nothing in that response from which it can fairly be discerned that the prosecutor was suggesting any need for unanimity as to any particular component of the course of conduct evidence being established.

68    It follows that a central plank for the assertion by the accused that the prosecutor’s case (independently of the express concession made by the prosecutor) required a unanimity direction as to any of the 12 events before any of them could be taken into account by the jury is missing. Moreover, the prosecutor, while having made the concession in submissions dated 4 November 2019, expressly disavows that as being its case now. The making and then disavowal of the concession all took place in the period from 4 November to 19 November 2019. I reject the submission by the accused that the prosecutor, and therefore the trial judge, must be bound by acceptance of the characterisation of its case by the accused in those circumstances.

69    As already noted, it is incumbent on the trial judge to ensure that only correct and necessary directions are given to the jury. I therefore cannot consider myself bound by the submissions or concessions of a party, pre-trial, as to what directions need to be given, and the possible formulation of those directions. Accordingly, it remains to be determined whether the correct position is that unanimity is required as to any of the 12 events in the alleged course of conduct relied upon to prove the conduct element before the jury may rely upon such an event as going to establishing the conduct element.

70    The key argument by the accused that unanimity was required as to each of the 12 events forming part of the alleged course of conduct relies upon Lane v The Queen [2018] HCA 28; 357 ALR 1, a case in which the jury had returned a verdict of not guilty of murder, but guilty of manslaughter; and the antecedent case of R v Walsh [2002] VSCA 98; 131 A Crim R 299, cited by the High Court in Lane.

71    In Walsh, the Victorian Court of Appeal (Phillips and Buchanan JJ, with whom Ormiston JA agreed) considered at length the basis for drawing a line as to when the jury must be, or need not be, unanimous when proof of one or more events is relied upon to prove an offence. Their Honours considered the difference between duplicity of charges, uncertainty of verdict and unanimity of verdict, observing:

(1)    as part of [43]:

The question of unanimity can arise when only one offence is charged and only one offence is proved but the jury is presented through the evidence led with more than one route by which to determine guilt. The question which has then arisen, in a number of cases now, is whether the jury must be directed to be unanimous, not only in the verdict, but also in the route by which that verdict is reached.

(2)    as part of [44]:

It is worth recalling the standard direction to the jury that they must be agreed in the result but need not be agreed in the manner in which that result is arrived at. This may be, and commonly is, directed to variations in the evidence when the issues, in the sense of the facts to be proved, are specific and are not in doubt; for in determining those facts one juror may accept one witness and reject another, while another juror may do the opposite.

(3)    at [45]:

After examining a good many of the cases, we think that there are two currents of authority and the first of these is in cases of murder, manslaughter and the like. In such cases the jury have to consider the whole of the accused’s conduct and to decide on the basis of it all and from among a number of different possibilities which of the elements of the offence charged are established to the required standard. The clearest example of the jury’s being permitted in such cases to arrive at the result by different routes is to be found where the Crown puts its case in the alternative, being unable to choose between them. It may be alleged that the victim was killed by the accused either personally or by an aide, the evidence leaving it unclear which, and in such a case it is enough if the jury agree that it was one or the other; beyond that, agreement is not required.

(4)    At [47] (omitting footnotes):

At first the case of true alternatives may seem obvious enough; but if the uncertainty stems from a conflict between witnesses it may well be that individual jurors might arrive at a more definitive result, and not necessarily the same definitive result, depending upon whose evidence is accepted and whose rejected. Nor does the case of true alternatives stand alone; for in Cramp, the accused, who was found guilty of manslaughter, had allowed a teenage girl to drive his car after plying her with drinks and urging her to speed, doing so for more than three hours. The case was presented on the basis that death resulted from the accused’s unlawful and dangerous act, or from his gross negligence, or from both. No direction was given that the jury had to be unanimous on the relevant basis of guilt, and the conviction was upheld by the Court of Criminal Appeal in New South Wales. In short, this was said to be because the jury were obliged to consider the whole of the offender’s conduct in deciding whether he caused the death by his unlawful and dangerous act or by his gross negligence and that, while the process of reasoning was different, each result rested on substantially the same factual basis. What was different was ‘‘the legal formulation of liability’’; the alternative bases of liability ‘‘did not involve materially different issues or consequences’’, an expression earlier adopted by the Court of Appeal in Queensland in Leivers and Ballinger.

72    The Victorian Court of Appeal in Walsh examined a number of authorities in detail, including R v Cramp [1999] NSWCCA 324, 110 A Crim R 198, referred to in the passage above, and a number of cases referred to in Cramp, in particular the English cases of R v Agbim [1979] Crim LR 171 and R v Brown (1984) 79 Cr App R 115. The Court found that the distinction between needing, or not needing, unanimity as to individual acts, and thus determining the need for such a unanimity direction, was to be drawn by a process of characterisation of an essential ingredient or element of the offence: see in particular [52]-[53]:

(1)    In Agbim, involving charges of procuring the execution of a valuable security by deception, for one of which there were multiple particulars, any one of which was sufficient to prove the offence, the essential ingredient or element was the overall making of a fraudulent claim, and the particulars were but a matter of evidence, permitting different reasoning by the jury.

(2)    By contrast, in Brown, involving allegations of fraudulently inducing investments, the particulars were of fraudulently inducing four persons to enter into agreements to sign shares by making misleading statements. In that situation, the making of a false statement as particularised was an essential ingredient or element upon which the jury had to agree.

73    So stated, the distinction between Agbim and Brown appears to be somewhat illusory, but upon further consideration, the principle to be derived is not. The Court in Walsh considered the principle further and concluded (at [53]) that the question to be asked is whether the particular act itself contained an essential ingredient or element of the offence, or whether it was but evidence going towards proof of that essential ingredient or element as to which the jury could form different views. If the former, there had to be unanimity and a corresponding direction; if the latter, there was no need for either.

74    The foregoing helps in understanding Walsh at [57], which was relied upon by the accused and cited by the High Court in Lane:

To sum-up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on ‘‘unanimity’’ about one or other or more of those bases, at least if they do not ‘‘involve materially different issues or consequences’’. … 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.

75    The prosecution in Lane relied upon two physical interactions between the appellant, Mr Lane, and the deceased, each of which was alleged to have involved a separate blow by Mr Lane capable of having directly led to, and thereby caused, the death of the deceased. The deceased had fallen twice, allegedly as a result of those separate blows alleged to have been inflicted by Mr Lane, noting that the evidence for one of those blows having taken place was weak to non-existent. It was common ground by the conclusion of Mr Lane’s trial that each of the falls was sufficient to have caused the death of the deceased. The trial judge directed that it was open to find that a deliberate act by Mr Lane had caused the death of the deceased if it found that either fall was caused by him. However, the trial judge did not direct the jury that it had to be unanimous in finding that one, or the other, or both of the falls had been caused by an act by Mr Lane. In Lane v R [2017] NSWCCA 46, the New South Wales Court of Criminal Appeal (NSWCCA) held that such a direction was required, but by majority found that there had been no miscarriage of justice, such that the proviso applied. Fagen J in dissent would have held that the proviso did not apply.

76    On appeal to the High Court it was not in dispute that unanimity was required and thus a direction was required. As the plurality (Kiefel CJ, Bell, Keane and Edelman JJ) pointed out at [45], Mr Lane “could not have been lawfully convicted by the jury unless it was agreed upon the action by [him] that caused the deceased’s fatal injury”, citing Walsh at [57] (reproduced at [74] above).

77    The High Court in Lane overturned the NSWCCA majority conclusion about the proviso. The key passages relied upon by the accused in these applications from the High Court plurality judgment in Lane were as follows (omitting footnotes):

[42]    … The absence of a specific unanimity direction in relation to the actus reus that caused the death of the deceased, coupled with the trial judge’s direction that it was open to the jury to convict on the basis that a deliberate act of the appellant caused the death of the deceased if it found that either fall was caused by the appellant, means that it cannot be assumed that the jury was unanimous that it was the appellant’s actions leading up to the second fall that established his guilt beyond reasonable doubt. As Fagan J said, it is quite possible that some jurors might have been satisfied that a voluntary act of the appellant caused the first fall and did not trouble to consider the circumstances of the second. And the jurors who found the actus reus made out in respect of the second fall may have pooled their conclusions with those who found the actus reus made out in respect of the first fall to reach their verdict. For a juror to reason in that way would not be to depart from the directions the jury had been given.

[43]    The possibility that some members of the jury might have concluded that the appellant’s conduct leading up to the first fall established the appellant’s guilt of manslaughter cannot be excluded by saying, as was said by the majority in the Court of Criminal Appeal, that the jury “necessarily should have entertained a doubt as to whether the deceased’s first fall was caused by any voluntary act of the appellant.” The case was left to the jury on the basis that it was open to it to convict the appellant by pooling individual jurors’ conclusions of fact on issues in respect of which it was required to be unanimous. It was, as a matter of fact, distinctly possible that some of the jurors may have been disposed to convict on the basis only of the first fall. That is so regardless of whether an appellate court might conclude that the evidence in respect of the first fall was incapable of supporting a conviction. It is not permissible to speculate as to how the jury may have reasoned. Nor would it have been open to the appellate court to hold that the jury should have reasoned by rejecting a basis then said by the Crown and the trial judge to be available to it.

78    The conclusion in Lane therefore turned on its specific facts by which unanimity as to either of two paths of reasoning was indispensable. There needed to be unanimity as to the basis upon which Mr Lane caused the death. In the language of Walsh, cited by the High Court in Lane on this issue, the alleged action by Mr Lane that caused the deceased’s fatal injury was an essential ingredient or element of the murder charged.

79    Pratten was a tax fraud case involving income tax returns for seven consecutive financial years. The prosecution case was that for each of those financial years, Mr Pratten had knowingly understated his ordinary assessable income. The prosecutor relied upon payments that had been made into his bank account during each of those years and not declared. There was a live dispute at the trial about these payments and in particular their character as income. The trial judge gave directions to the effect that while the verdict had to be unanimous, the reasons for that verdict could be different, placing different emphasis on different parts of the evidence. The problem was that this left open the possibility that the jury would be reach their verdict on different omitted payments found to be assessable income. Thus a direction should have been given that in order to convict on a charge for any given year, the jury had to be unanimous in their findings as to the particular amount or amounts of assessable income which were knowingly not declared. In this way, Pratten is akin to Lane, because each payment of the necessary character went to satisfaction of an essential ingredient or element of the offence. It was not open for half of the jury to find that a particular payment was undeclared income, while the other half of the jury found that a different payment was undeclared income. If that happened, there would be no unanimous verdict as to a payment or payments that were undeclared income. The prosecution case had been that all of the omitted payments had that character, requiring unanimity as to all of them, but that was not how it was left to the jury.

80    In Magnus v The Queen [2013] VSCA 163; 41 VR 612, the appellant was found guilty of 53 charges of obtaining a financial advantage by deception. This arose from soliciting investments in a private betting fund. Each charge had between three and six particulars of false representations made to investors, being the deception relied upon. The jury was not given any unanimity direction as to the multiple deceptions relied upon, but no objection was taken to this at the trial. The Victorian Court of Appeal, applying Walsh (especially at [57], which was quoted in full) and numerous other authorities, found that while unanimity was required, the way that the trial had been conducted meant that there was no prospect of the jury having found the appellant guilty except if it was unanimous in finding that a particular representation had been made and had been operative to result in a particular transfer of funds. The basis for the finding that unanimity was required was that the particularised false representations constituted the deceptions relied upon as an element of each offence charged. Each false representation was therefore itself an essential ingredient or element of the offence to which it related.

81    In R v Moussad [1999] NSWCCA 337; 152 FLR 373, a childcare operator was charged with defrauding the Commonwealth. The prosecution relied upon 46 separate dishonest acts within a framework of a continuing single fraud offence with an overall element of dishonesty involving nine false quarterly claim forms supported by 32 false fee relief records. One of the grounds of appeal was an assertion that the trial judge had erred in initially directing the jury that any one act of dishonesty was sufficient to justify the guilty verdict. That ground included an argument that the trial judge had fallen into the same error as was identified in S v The Queen, effectively leaving the case to the jury upon the basis that if they were satisfied that any one of the multiple acts occurred they could find her guilty. The initial direction to the jury said that each of the acts of dishonesty particularised was an essential circumstance and had to be proven beyond reasonable doubt. The prosecutor asked that this direction be modified to explain to the jury that they did not have to be satisfied beyond reasonable doubt of every one of the acts on which the Crown relied, but that they had to be satisfied beyond reasonable doubt of sufficient acts to amount to or constitute the criminal enterprise alleged. A direction to that effect was given, and for that reason the ground of appeal failed as not reflecting the way in which the case was left to the jury.

82    Thus in Lane, the infliction of either of the blows causing a fall and thereby death, was an act which itself constituted an alternative (or cumulative) essential ingredient or element of the offence as to which there had to be unanimity. Similarly, in Pratten and in Magnus, unless all the particulars were clearly put as an all or nothing, or the case was run in a way that had that effect, each was capable of being an alternative (or cumulative) essential ingredient or element of the offence, any one of which required unanimity. In each case, to borrow a metaphor from the law of circumstantial evidence (Shepherd v The Queen [1990] HCA 56; 170 CLR 573) each was a link in an alternative chain of fact-finding going to an essential element or ingredient of the offence charged and therefore requiring jury unanimity in order to reach a guilty verdict as to that element or ingredient before it could be relied upon. None was a mere strand in a cable, capable of being given differential weight by individual jurors to support unanimity on the overall essential conduct element of the offence charged. By contrast, albeit of limited direct application to the present case, Moussad is a case in which, while individual acts were enough to establish the element of dishonestly, the prosecutor’s case was not limited so as to require a unanimity direction as to any of them. The different facts in each case also exposes the limits in relying upon the way in which the principle has been applied in a given case, dependent upon its own facts and circumstances.

83    A jury in a criminal trial is required to be unanimous as to the elements of an offence. Sometimes a non-element fact will nonetheless be an essential ingredient that must be established both beyond reasonable doubt and to the unanimous satisfaction of a jury, such as identification of an accused. In some circumstances a jury may also, as a practical matter, have to be unanimous as to the conclusion to be drawn from particular evidence that is indispensable to such unanimity. Lane is an example of that need because half the jury could not attribute responsibility to Mr Lane for one act causing death, while the other half of the jury attributed responsibility to Mr Lane for a different act causing death: there would be no unanimous verdict that Mr Lane had committed the act or acts alleged to have caused the death, and thus no unanimity as to the element itself. It was not a case in which evidence by which that conduct element could be established by disparate paths of reasoning. Pratten is a further example of the same need for unanimity as to different pathways to a verdict containing an element of the offence, without which there may not be unanimity on the element itself. However, outside of such circumstances a jury is not generally required to be unanimous in their view of the disparate items of evidence that is relied upon to prove an element of an offence.

84    A jury dealing with a course of conduct case is ordinarily permitted to engage in a different process of reasoning as among its members, giving different weight to different components of the evidence relied upon in finding, unanimously, that such an element has, or has not, been proven beyond reasonable doubt, contributing to reaching a unanimous verdict if such a finding is also made on all the remaining elements: see, e.g., R v Giretti (1986) 24 A Crim R 112 at 117–118.

85    Turning to this case, and applying the foregoing reasoning, I can 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. A decision by a prosecutor to allege a single attempt to induce, over a period of time, rather than a series of separate attempts to induce, ordinarily should not in substance be turned back into individual offences by the device of a unanimity direction as to the constituent parts, especially when, as in this case, no objection has been taken to the course of conduct approach that has been taken (nor, it seems, could properly be taken).

86    In relation to the conduct element to which the alleged attempt to induce is directed in this case, no particular act in furtherance of that single objective is itself properly characterised as an essential element or ingredient of the offences charged, as opposed to evidence in support of the proof of such an element or ingredient. Nothing said or done at any of the meetings in any of the other events had the character of being so tied to that element as to be akin to the act causing death in Lane, the omission of assessable income in Pratten or the false representation constituting the deception in Magnus. Contrary to the submissions for the accused, those cases can readily be distinguished.

87    Confining the discussion to any one or more of the 12 events and treating them as particulars, none of those events rise higher than a matter of evidence going to the conduct element. None is a link in a chain of reasoning in which an essential element or ingredient is imbedded so as to require unanimity, akin to an act causing death, the omitting of assessable income, or a false representation constituting a deception. Even 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, being the very nature of the particular course of conduct case advanced by the prosecutor.

88    I am unable to see why the position for Mr Harrison is any different. None of the subset of the 12 events involving him can be cast as being themselves an essential ingredient or element of the offence charged, as opposed to evidence directed to establishing that conclusion. The jury will need to be given directions as to unanimity as to whether or not they are satisfied beyond reasonable doubt that he aided, abetted, counselled or procured the attempt to induce by Mr Hogan (which they will have to be satisfied was committed by Mr Hogan). Both charges are directed to their conduct overall. There is no need for unanimity by the jury as to the way in which they reach their conclusion on this element in the course of either finding him guilty or not guilty.

89    What is required for counts 1 and 2 against Country Care and Mr Hogan respectively is that the jury reach a unanimous conclusion, beyond reasonable doubt, and thus also for the purposes of the accessory offence alleged against Mr Harrison in count 3, that Mr Hogan (and Country Care via Mr Hogan) attempted to induce Country Care Group members to make the arrangement or arrive at the understanding alleged, and that Mr Harrison aided, abetted, counselled or procured Mr Hogan’s attempt. That does not preclude the prosecutor deciding, pragmatically at the trial, that a particular event, as the evidence has unfolded, is practically so indispensable to that final conclusion as to, itself, be required to be proven beyond reasonable doubt and thus found to be so unanimously by the jury. Such an approach is an ordinary incident of many jury trials.

90    Nor does this 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.

91    I should add that neither scenario seems particularly likely at this stage in relation to the conduct element, but may yet emerge. However, the existence of that possibility is not the same as such a direction being required from the way in which the prosecutor seeks to put the case on the conduct element, thereby introducing an unnecessary layer of complexity to the way in which the case is to be run from the outset.

92    It follows that the argument for the accused that the evidence relied upon by the prosecutor in respect of the conduct element does not contribute to any unduly complicated process of reasoning for the jury and in particular does not require the 12 unanimity directions asserted by the accused.

Intention issue

93    The Prosecution Case Notice explains how the prosecutor puts the case on the purpose/effect condition and the competition condition as follows (omitting footnotes and particulars to [11] as to the two or more parties who were alleged to be in competition and the evidentiary basis identified for that aspect):

[9]    In seeking the understanding or arrangement containing the provision described above, HOGAN had a substantial purpose of maintaining each of:

(a)    the prices that CCG members invoiced CC Co for goods they supplied to eligible beneficiaries under the MFS Tender; and

(b)    the parties at which CCG members supplied those goods to the:

(i)    individuals who acquired such products for their own use and were not eligible beneficiaries for the purpose of the MFS Tender (referred to as “end users”); and

(ii)    nursing homes and other health care facilities which acquired such products for use by end users within their facility,

(together, the general public)

[10]    HOGAN’s ultimate motive was to maintain the Contracted Prices, and therefore the margins earned by CC Co, and CCG members, in servicing the DVA MFS Tender. If implemented, the likely effect of the arrangement or understanding HOGAN was seeking would have been to maintain both:

(a)    the prices that CCG members invoiced CC Co for the goods they supplied under the MFS Tender; and

(b)     the prices at which CCG members supplied those goods to the general public.

[11]    While HOGAN was endeavouring to engender the arrangement or understanding he was seeking between and amongst CC Co and CCG members, each of CC Co, HOGAN and HARRISON were aware that at least two intended parties to it were in competition with each other in relation to the supply of the types of goods supplied under the MFS Tender:

(a)    to the general public; and

(b)    as sub-contractors to CC Co under the MFS Tender.

[12]    Given HOGAN’s position as director of CC Co, his conduct and state of mind are to be attributed to CC Co for the purposes of assessing its criminal liability for cartel conduct.

[13]    HARRISON assisted HOGAN in his continuing attempt to induce the understanding or arrangement by seeking to persuade CCG members to enter a written sub-contracting agreement with CC Co containing a provision to the effect that the CCG member would not advertise goods that CC Co contracted to sell under the MFS Tender for less than the Contracted Prices. HARRISON was involved in the drafting of this agreement, and in sending it out to CCG members. In providing this assistance, HARRISON was aware that HOGAN had the substantial purpose identified in paragraph 9 above.

94    The accused rely upon the further particulars as to the above paragraphs of the Prosecution Case Notice from a letter from the prosecutor dated 26 July 2019:

(1)    at [7]:

The prosecution alleges that the cartel provision the subject of charges 1 to 3 had a substantial purpose of maintaining each of the prices alleged in the Notice at sub-paragraph 9. For the avoidance of doubt, the prosecution puts its case on the basis that the purpose/effect condition in s 44ZZRD would be established if the prosecution proved that the cartel provision had a substantial purpose of maintaining either the prices referred to at sub-paragraph 9(a) or the prices referred to at sub-paragraph 9(b) of the Notice.

(2)    at [9]:

The prosecution repeats its objection in paragraph 7(c) of its letter dated 19 July 2019: the prosecution does not concede that it is required to establish the effect or likely effect of the cartel provision. Under cover of that objection, it says that the effect or likely effect identified at sub-paragraphs 10(a) and (b) in the Notice are both components of the effect or likely effect of the cartel provision which was being sought. It would be sufficient, to establish the purpose/effect condition in s 44ZZRD(2), for the jury to be satisfied that the cartel provision would have or be likely to have either the effect referred to at sub-paragraph 10(a) or the effect referred to at sub-paragraph 10(b).

(3)    at [14]:

We confirm that the prosecution relies on both sub-paragraphs 11(a) and (b) of the Notice in relation to knowledge of competition. For the avoidance of doubt, the prosecution puts its case on the basis that knowledge or awareness of the competition condition would be established if the prosecution proved such knowledge or awareness in relation to either sub-paragraph 11(a) or sub-paragraph 11(b) of the Notice.

95    The written submissions for Country Care and Mr Hogan then recast the way in which each purpose and each effect allegation is said to be advanced by the prosecutor in respect of the two types of supply (under the MFS Tender and to the general public). For the reasons below in relation to the competitive relationships issue and the products issue, that restatement is not entirely accurate insofar as it suggests that the jury had to be satisfied that the pool of competitive relationships went beyond those to be drawn from the list of 16 entities described in schedule 6 to the Prosecution Case Notice or that the supply would have related to any specific Tender Goods so as to require unanimity as to one or more such products. However for the purposes of this aspect of this adjudication in relation to this topic, the prosecutor does not dispute that its case is that there are four different ways in which the jury can be satisfied beyond reasonable doubt that the purpose/effect condition can be established and that a unanimity direction is required for each of those four alternatives.

96    The four alternatives pertain to the substantial purpose and to the likely effect aspect of prices that would have been charged both for supply of goods to DVA beneficiaries on behalf of Country Care under the MFS Tender and for the supply of goods to the general public. Based on the way in which the prosecutor brings this aspect of its case, a unanimity direction would be required to be given to the jury before any of those four alternatives could be relied upon by the jury to reach the requisite satisfaction as to the attempt to induce charged in relation to the purpose/effect condition sub-element of the cartel provision element in counts 1 and 2, and thus count 3. There is no doubt that this is going to be a challenging direction to give, and a challenging direction for the jury to understand and thereby apply. But that is what has been provided for by parliament. It was suggested during the course of argument that I might conclude that, at least on the facts of this case, this class of criminal cartel offence may not permit a workable trial to be had. I am not satisfied that this is so.

97    The argument for the accused that the prosecutor’s case on the intention element does, inevitably, contribute to the complexity of the process of reasoning for the jury must be accepted. However that is a direct function of the element of the s 44ZZRF(1) offence in the Competition Act and especially the purpose/effect condition sub-element of the cartel provision element. The live question is whether or not the approach of the prosecutor:

(1)    by relying both on purpose and on effect in s 44ZZRD(2); and

(2)    by relying upon both supply of goods to DVA beneficiaries on behalf of Country Care and for supply of goods to the general public,

has made this more complicated than it needs to be.

98    With some hesitation, and in light of the conclusions reached below on the competitive relationships issue and the products issue, I am 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 to commence on 3 February 2020. However, that is the product of an inevitably imperfect exercise of prediction for which my appreciation of the complexities is necessarily incomplete. I will therefore direct the prosecutor to give serious consideration as to whether it is really necessary to maintain all four alternatives in relation to the purpose/effect condition sub-element of the cartel provision element, having regard to the inevitable risks this poses to the prospects of success at trial with a jury. The reasoning in Bauer (a pseudonym) v The Queen [2015] VSCA 55; 46 VR 382 should encourage all prosecutors to consider any case to be brought through such a practical prism, and especially to do so when elements of an offence, and the facts and evidence, in a given case will make the factual decision-making process inherently difficult for a jury. Despite my conclusion that the outer limit of prosecution discretion has not been reached, a prosecutor is well-advised not even to come close to that limit because of the risk of exceeding it. This case at trial would undoubtedly be less complicated for all concerned, and most especially for the jury, with fewer alternatives on this aspect of the prosecutor’s case if that can be done in a way that does not prejudice the prosecutor.

Competitive relationships issue

99    The substance of the argument for the accused on this topic was to analyse in considerable detail the network of potential competitive relationships said to emerge from the Prosecution Case Notice, and to apply that network both to the intention element of the attempt to induce charged as they pertain to the supply of goods to DVA beneficiaries on behalf of Country Care and to the supply of goods to the general public. The analysis was done by reference to competitive relationships specific to particular geographic regions and nationally as set out in the Prosecution Case Notice, producing an asserted choice of competitive relationships pertaining to the supply of goods to DVA beneficiaries on behalf of Country Care and pertaining to the supply of goods to the general public.

100    The accused thereby contend that the number of potential competitive relationships, for which unanimity is required, significantly adds to the array of combinations and permutations that the jury must be directed to consider and to reach unanimous conclusions about. That is particularly said to be so when regard is had to the asserted unanimity directions required arising out of the conduct issue considered above (not sustained), the intention issue considered above (sustained, but requiring further and urgent consideration by the prosecutor), this competitive relationships issue, and the products issue considered below (not sustained).

101    A number of aspects of the argument for the accused relied upon inferring that certain competitive relationships were being relied upon by the prosecutor. For example, it was submitted that if it was alleged that Country Care was in competition with each of two Country Care Group members, then it was implicit that they were also being relied upon as being in competition with one another even if this was not expressly stated. The prosecutor expressly disavowed any path of reasoning based upon any such implication, confining the competitive relationships relied upon to those expressly stated. Thus in this example, if there is no express competitive relationship alleged between several different Country Care Group members each of whom is alleged to be in a competitive relationship with Country Care itself, then no such implication is relied upon.

102    The prosecutor’s argument in response proceeds by several stages. The first is not strictly within the confines of this issue, but is important to spell out in aid of understanding the stepped nature of the prosecutor’s case. The proposed arrangement or understanding that the prosecutor relies upon is between Country Care and all the rest of the Country Care Group members from time to time, not some segment or portion of those other members. The focus on only a subset of Country Care Group members alleged to have been sought to be parties to the arrangement or understanding takes place at the competition condition sub-element stage. That is the stage at which the focus turns to competitive relationships.

103    In relation to competitive relationships, the prosecutor produced at the hearing of the applications a list of 16 entities, one of which is Country Care, and submits that this forms the true basis for the direction required to be given to the jury on the competition condition sub-element. The list reflects a distilling of the detail in schedule 6 to the Prosecution Case Notice, in particular at [96] to [103], being each of the entities alleged to have been in competition with one or more of the other entities on that list. Further, the prosecutor submits, that list is the same regardless of whether the prospective supply for which the purpose or likely effect is alleged was in respect of supply of goods to DVA beneficiaries on behalf of Country Care or to the general public (with the competitive relationship not having to involve Country Care itself). Thus the unanimity direction required to be given to the jury so that they were satisfied as to the same competitive relationship(s) having been established beyond reasonable doubt, while still of some complexity, is not of the scale suggested by the accused, taking some of the sting out of their argument. The prosecutor submits that this is the outer limit of the complexity on this issue, with some scope for the number to be reduced as the evidence unfolds, but no scope for it to increase.

104    I can see from the prosecutor’s argument that it is quite possible that the complexity of the competition condition element and thereby the unanimity direction will be able to be given in a way that is not oppressive or unfair to the accused or the jury. However it remains to be explained how that is going to work in practice at the trial. It is not yet necessary to go so far at this stage to be preparing the direction that will be required as part of the summing up to the jury as that follows the evidence. However, more is needed than is presently available for me to be satisfied that this is going to a be workable proposition for effective jury directions, and for the accused to understand better how this aspect of the prosecutor’s case is intended to be put to the jury.

105    Reference was made by the prosecutor during the course of oral argument to an aide memoire being prepared to give to the jury. Whether or not such a document can or should be given to the jury is not a question that can be answered in the abstract, nor one that can or should be decided at this stage. The step before that is to furnish a draft of such an aid memoire to the Court and to the accused, as a means of better understanding how this is proposed to work in practice. As a satisfactory document should be able to be produced for this relatively confined purpose, I do not consider that this issue of itself stands in the way of counts 1 to 3 remaining on the indictment and proceeding to the trial to commence on 3 February 2020.

Products issue

106    The accused refer to [3] of the Prosecution Case Notice, which summarises the 2011 MFS Tender and the 2016 MFS Tender as follows:

In addition to its retail business, CC Co has been successful in winning various tenders to supply assistive technology products under government programs. One of those programs is run through the Department of Veterans’ Affairs (DVA), and involves the supply of assistive technology products to eligible veterans. In June 2010, the DVA moved to issuing tenders, including for the goods and services under a “Mobility and Functional Support Tender” (MFS Tender) at a national level. CC Co was one of the successful tenderers for the DVA MFS Tender.

Particulars

The phrase “Mobility and Functional Support Tender”, and the term “MFS Tender”, encompass both:

(a)     the written agreement titled “Services Agreement”, between the Commonwealth of Australia (as represented by the Department of Veterans’ Affairs), the Repatriation Commission and the Military Rehabilitation and Compensation Commission and CC Co, executed on behalf of CC Co on 6 April 2011, and by the other parties on 8 April 2011, as varied from time to time (the 2011 MFS Tender), which agreement commenced on 1 May 2011 and ended on 30 April 2016; and

(b)     the written agreement titled “Deed of Agreement”, between the Commonwealth of Australia (as represented by the Department of Veterans’ Affairs, the Repatriation Commission and the Military Rehabilitation and Compensation Commission) and CC Co, executed on behalf of CC Co on 28 April 2016, and by the Commonwealth of Australia on 17 May 2016, as varied from time to time (the 2016 MFS Tender), which agreement commenced on 1 May 2016.

107    The accused describe the above as amounting to outlining all of the products on each tender list, comprising all of the Tender Goods. They submit that all of those goods are the subject of the alleged competition, and that with the benefit of all those products, especially as to their number (over 2,500 in the 2011 list and, for a much shorter period, over 8,500 in the 2016 list), their range, their diversity as to purposes and cost, all impact in a relevant sense on the question of competition. The substance of this argument is that the prosecutor’s case is that any one or more of those products can be the basis of the alleged competition, such that each individual good on the list is a potential alternative pathway to a guilty verdict. The accused declined to indicate whether this argument meant that the prosecutor would have to elect to pick and run on some subset of the Tender Goods.

108    The prosecutor’s stance could hardly be more starkly different. The prosecutor denies that the number of individual items contracted under the MFS Tender from time to time introduces significant complexity into the case. Rather, prosecutor submits that its case can properly be run by reference to the Tender Goods as a whole, having regard to a number of considerations, as follows.

109    First, the prosecutor submits that the case is brought at the level of competition between rivals, placing reliance on the long-established exposition of the “very rich concept” of the process of competition discussed by the Trade Practices Tribunal (now Competition Tribunal) in Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 (QCMA) at 188-189. The prosecutor accurately summarises the Tribunal’s expression of that concept as being, in broad terms, that in order for there to be competition, the parties concerned must be rivals or otherwise constrain one another in respect of the relevant supply of goods (or services). Applied to the present situation, the prosecutor characterises the competition process as involving suppliers of assistive technology products, confined to goods on the MFS Tender list, constraining one another if they supply substitutable goods on that list (that is, the same goods or sufficiently similar goods to meet the use requirements of the consumer). Thus the competition condition relied upon in s 44ZZRD(4)(c) focuses on competition between competitors in relation to such goods, not on competition between goods per se. In those circumstances, the prosecutor submits, the relevant question arising from s 44ZZRD(4)(c) is not what goods a competitor has in stock now, or what was sold the previous year, (let alone, I infer, what might be sold at some time in the future had the proposed agreement or understanding been brought into existence), but rather what are the goods or range of goods that is the subject of rivalry between one of the 16 entities on the list that the prosecutor has now proffered, and another entity on that list.

110    Secondly, the prosecutor submits, the reference to the Tender Goods is also appropriate because that is consistent with the evidence relied upon. The prosecutor’s case is framed by reference to the Tender Goods because that is the category of goods which is meaningful on the facts sought to be established by the evidence and thereby to be relied upon. For example, the efforts alleged to have been made by Mr Hogan at the 2014 St Kilda conference were by reference to the MFS Tender and thus to the contracted list as a whole, cast at that level of generality. No allegation is made, or reliance is placed upon, any reference being made in relation to individual products on that list. Similarly, when, as the prosecutor alleges, the draft and final DVA Membership Agreements were sent out, the marketing clause (cl 3.2) referred to the products in the MFS Tender list as a whole. It is for that reason that the prosecutor has adopted the reference to the MFS Tender to reflect how, on the evidence to be led, the industry was talking about these products. Moreover, this approach is consistent with the fact Country Care and the subset of 15 other Country Care Group members relied upon were signed up to be suppliers under the MFS Tender, not for any individual stockkeeping units (SKUs). Thus, the prosecutor argues, there is no need for unanimity in relation to any particular item on the MFS Tender list.

111    Thirdly, the prosecutor submits that the approach taken is not merely a matter of forensic convenience or advantage, but rather is reflective of authority on the topic, including the High Court’s repeated statements, most recently in Air New Zealand Ltd v Australian Competition and Consumer Commission [2017] HCA 21; 262 CLR 207, that the former Trade Practices Act 1974 (Cth), and thus equally the modified and renamed Competition Act, is to be applied having regard to practical business and commercial context considerations: see the plurality of Kiefel CJ, Bell and Keane JJ at [14]. While Air New Zealand was principally concerned with market definition, it illustrates that the focus of competition remains on the impact it has on putative competitors, and that in turn must pay due regard to commercial realities: see also Nettle J at [39] and Gordon J at [78].

112    The prosecutor also relies upon the observations of McHugh J in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5; 215 CLR 374 in part of [257], where his Honour observed, albeit in the context of market definition, but of clear relevance to the approach to be taken to the application of the Competition Act generally, that (omitting footnotes):

The views and practices of those within the industry are often most instructive on the question of achieving a realistic definition of the market. The internal documents and papers of firms within the industry and who they perceive to be their competitors and whose conduct they seek to counter is always relevant to the question of market definition.

113    The prosecutor therefore submits that the Tender Goods are the appropriate product designation because it reflects the area of rivalry between Country Care Group members as that concept is to be understood under the Competition Act, reflecting the commercial realities of the industry required to be engaged with. That is, the prosecutor submits, the Competition Act needs to be applied in a way that those to whom it is applied would recognise, and accordingly there is no need for jury unanimity as to any particular goods because that entails a degree of granularity that the prosecutor’s case does not descend to, and does not need to descend to. The alleged inducement to make the agreement or enter into the understanding was intended to produce a situation where the different Country Care Group members would not advertise prices lower than the MFS Tender price for any of the Tender Goods. This is in the context of the competition condition referring to competition that is occurring or is likely to occur, such that it may be that a Country Care Group member which is advertising five Tender Goods one day might be a potential and a not remote supplier of another five Tender Goods the next day, such that confining the prosecutor’s reliance, for the purposes of the competition condition in s 44ZZRD(4)(c) to three or five or 10 or even 100 particular SKUs would be to “deny the concept of potential and not remote competition which is so important to the competition condition”.

114    Fourth, the prosecutor relies upon an analogy, taking the example of competition between the two largest grocery retailers in Australia, Coles and Woolworths. If the jury was being asked to consider such competition in relation to the supply of groceries, the industry would recognise that general area of rivalry. It would not be relevant to the conclusion that they were rivals in the supply of groceries that they sold a disparate range of products, or that the value of the products covered a wide range, or whether their product lists were identical at any point in time. Rather, the question would be “the comparability of the range of products they supplied and the constraint imposed by their potential supply”, just as with the case the prosecutor seeks to advance. Thus, the prosecutor submits, the notion advanced by the accused that there had to be two or more particular products is misconceived because it entails descending into a level of detail that is not, and does not need to be, a part of its case.

115    The accused, in response, do not directly take issue with any of the above arguments, but rather submit that even if they are correct, the prosecutor still seeks to rely upon competition between those two or more competitors even if it only relates to a single good on either of the MFS Tender lists numbering in the thousands of individual goods. Upon that understanding of the prosecutor’s case, the accused deny that comfort can be obtained from characterising the Tender Goods as a single indivisible whole (which is not quite what the prosecutor is saying if that is intended to mean that the Country Care Group members relied upon were in competition in relation to all of the goods that Country Care contracted to sell under the MFS Tender, as discussed below). That is, the accused submit, because the prosecutor has chosen not to run its case upon the basis of accepting that they need to prove that the Country Care Group members were in competition in relation to all of the goods and instead want to take the benefit of the lowest possible common denominator of any one of those goods, the jury must make its decision by reference to that approach and ask themselves what particular goods made them competitors.

116    Given that the products issue has come down to the proper characterisation of the prosecutor’s case as set out in the Prosecution Case Notice, as elaborated in the particulars correspondence in evidence on these applications, my task in resolving this issue has come down to acceptance or rejection of the proposition that the task that will be presented to the jury requires descent to the detail of competition in relation to individual goods in the MFS Tender list so as to require a unanimity direction in relation to such goods.

117    In relation to the Prosecution Case Notice, the key paragraphs pertinent to this topic appear to be as follows (footnotes omitted):

1.    The Country Care Group Pty Ltd (CC Co), is a company based in Mildura. It sells a range of “assistive technology” products, such as wheelchairs, walkers, beds, mattresses, and specialised furniture. These products are designed to assist people manage their daily living activities, and are used by the elderly, and people with injuries and disabilities.

…

22.    “Assistive Technology” is a term used to describe goods and services that are supplied to aged persons or people who, for various reasons, require items to assist in managing their daily living activities. Examples of assistive technology products include wheelchairs, adjustable beds and mattresses, adjustable chairs, walking aids, continence products, and specialised bathroom and kitchen products. Assistive technology products are also referred to by some procurers, suppliers or customers as rehabilitation aids or aged care aids.

…

Competition

84.    CCG members supplied assistive technology goods, as described in paragraphs 1 and 22 above. The assistive technology goods that they supplied under the DVA MFS Tender and to the general public included goods that CC Co contracted to supply under the DVA MFS Tender (Tender Goods). The Tender Goods included the following assistive technology goods:

(a)    Ellipse walkers;

(b)    Trust Care indoor walkers;

(c)    medical sheepskin overlays;

(d)    Oscar branded chairs (including Menningham chairs and dining chairs);

(e)    shower stools;

(f)    over toilet frames;

(g)    slip on slippers (also referred to as pressure care slippers); and

(h)    Roho branded cushions (including quadtro select low profile cushions).

85.    HOGAN and HARRISON were aware that one or more of these businesses were in competition with CC Co, and/or with one or more of the other CCG members, for the supply of assistive technology products (including Tender Goods) to the general public, and in supplying Tender Goods under the MFS Tender. The relevant competition existed between:

(a)    CC Co and those CCG members who were rivals, or potential rivals, of CC Co for the supply of assistive technology goods (including Tender Goods) in the geographic area serviced by CC Co; and

(b)    CCG members who were rivals, or potential rivals, for the supply of assistive technology goods (including Tender Goods) in the geographic area serviced by one or more other CCG members.

Particulars

Further particulars of competition between, and amongst, CC Co and CCG members are provided in Schedule 6 below.

118    Schedule 6 to the Prosecution Case Notice provides further particulars of the prosecutor’s case relating to satisfaction of the competition condition in s 44ZZRD(4). That schedule details how competition will be sought to be established between two or more Country Care Group members, which I understand to be drawn from the list of 16 Country Care Group members furnished by the prosecutor at the hearing of these applications. The thrust of those particulars describe the supply of assistive technology products, including Tender Goods, by each of those entities. In relation to Country Care’s Mildura store, and in relation to the Country Care Group members described (as defined) as Patient Handling, Life Mobility, Coastcare, CC Northern Beaches, Lovedays, Nth Degree and Equip4Living, reference is made to particular Tender Goods that had been sold in the period from 13 May 2014 to 4 May 2016, as set out in schedule 6 to the Prosecution Case Notice at [10], [25], [36], [46], [64], [80] and [94].

119    The letter sent on behalf of Country Care and Mr Hogan dated 1 July 2019, at [1(d)(iii)] and at [2(c)(iii)], sought particulars as to how it was said that at least two of the parties to the alleged arrangement or understanding were or would have been in competition with each other in relation to the supply of the particular goods (or services), including the goods (or services) in respect of which those parties were in competition. The prosecutor’s response by a letter dated 19 July 2019, at [12] to [13] referred to [84] and [85] of the Prosecution Case Notice (reproduced above) and to schedule 6 to that notice.

120    The further letter sent on behalf of Country Care and Mr Hogan dated 24 July 2019, at [5], sought confirmation in relation to the prior response (referred to in the preceding paragraph) that the prosecutor’s case was that, where Country Care Group members were in competition, they were in competition in relation to the supply of all of the goods that Country Care contracted to sell under the MFS Tender from time to time. The prosecutor’s response by a letter dated 26 July 2019, as relevant to the resolution of this issue at [12] and [13], was to refer to [5] and [9] of the Prosecution Case Notice and to state that:

(1)    the case to be advanced is that where Country Care Group members were in competition within the meaning of s 44ZZRD(4), they were in competition in relation to the supply to the general public of assistive technology products (including Tender Goods) and the supply of Tender Goods to eligible beneficiaries under the MFS Tender;

(2)    it was not the prosecutor’s case that each of the Country Care Group members identified in schedule 6 of the Prosecution Case Notice were in competition in relation to all of the goods that Country Care contracted to sell under the MFS Tender from time to time, and that such a suggestion was not supported by that notice.

121    I do not discern from the above 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. If I am wrong about that, then the only basis for supporting a contrary conclusion would appear to be the very limited number of products referred to in schedule 6 of the Prosecution Case Notice described at [118] above, not to each and every individual one of the Tender Goods, a conclusion which would not affect numerous other Country Care Group members referred to in that schedule for which there is no such reference to individual Tender Goods. There will need to be some clarification about this by the prosecutor, including as to whether that degree of detail is necessary for the prosecutor’s case, and if so, why. But this falls well short of advancing thousands of alternative pathways to a guilty verdict, requiring an impossible number of unanimity directions.

Summary of conclusions reached

122    I have concluded that:

(1)    no unanimity direction is required in respect of the series of events relied upon by the prosecutor to prove the course of conduct as to the attempt to induce, including as to the 12 events;

(2)    while a unanimity direction is required as to the four alternative means by which the purpose/effect condition is sought to be proved, it has not been demonstrated that this goes beyond the ordinary operation of the offence provision – however, the prosecutor is directed to give serious consideration as to whether fewer alternatives can be relied upon so as to reduce the complexity that those four alternatives entail;

(3)    while a unanimity direction is required as to the competitive relationships from the list of 16 Country Care Group members going to the proof of the competition condition, again it has not been demonstrated that this goes beyond the ordinary operation of the offence provision – however, the prosecutor is directed to prepare and serve an aide memoire, of a kind that might be suitable to give to the jury, in order to explain how this is going to work in practice at the trial;

(4)    I am not satisfied that a unanimity direction is required as to any individual products in the MFS Tender list, but the prosecutor is directed to explain what the effect will be on the trial and on the expected jury deliberations of the reference that is made in schedule 6 to the Prosecution Case Notice to particular Tender Goods that had been sold in the period from 13 May 2014 to 4 May 2016 in relation to Country Care’s Mildura store, and in relation to the Country Care Group members described (as defined) as Patient Handling, Life Mobility, Coastcare, CC Northern Beaches, Lovedays, Nth Degree and Equip4Living, as set out in schedule 6 to the Prosecution Case Notice at [10], [25], [36], [46], [64], [80] and [94].

123    For the foregoing reasons, the applications to sever counts 1 to 3 to the indictment and to temporarily stay those counts were dismissed on 26 November 2019. In addition to the directions referred to above, as discussed at the case management hearing on 26 November 2019:

(1)    the prosecutor is given leave to file and serve a final indictment, to be styled “Indictment”;

(2)    the prosecutor will need to file and serve a second further amended notice of the case for the prosecution; and

(3)    each of the accused will need to be arraigned and enter pleas to the final indictment.

124    It is not yet clear whether the accused will each need to file and serve responses to second further amended notice of the case for the prosecution, or whether, as a consequence, the prosecutor will need to file a response (that is, reply), to such responses. The prosecutor is directed to advise the accused and the Court whether such further responses are needed.

125    The pre-trial hearing will be stood over to a date to be fixed for the arraignment to take place on the final form of the indictment and pleas to be entered.

Associate:

Dated:    29 November 2019