FEDERAL COURT OF AUSTRALIA

Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (No 2) [2019] FCA 2201

ORDERS

THE COURT ORDERS THAT:

1.    Each of the accused be granted leave to appeal from orders made on 26 November 2019 dismissing applications by each of the accused to sever and temporarily stay counts 1 to 3 in the indictment.

2.    By 4.00 pm on 19 December 2019:

(a)    the first and second accused file a notice of appeal in accordance with the draft notice of appeal annexed to the affidavit of Richard Harvey Westmoreland affirmed 12 December 2019; and

(b)    the third accused file a notice of appeal in accordance with the draft notice of appeal annexed to the affidavit of Kathryn Edghill sworn 12 December 2019.

3.    The appeal be listed for hearing by the Full Court on 31 January 2020 and (if needs be) 3 February 2020, in Melbourne.

4.    The parties confer forthwith and provide agreed or competing procedural orders by email for the preparation of the appeal for hearing commencing on 31 January 2020.

5.    The trial listed to commence on 10 February 2020 be vacated.

6.    The parties confer and provide alternative proposed trial dates by 13 January 2020.

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

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J:

1    The prosecutor, the Commonwealth Director of Public Prosecutions, alleges by indictment that the three accused committed between them eight criminal cartel offences under the Competition and Consumer Act 2010 (Cth) (Competition Act). 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.

2    The trial by jury is presently set down for approximately six weeks, commencing on 10 February 2020, in Melbourne. On 18 December 2019, the accused entered not guilty pleas to all counts in the indictment.

3    On 26 November 2019, I dismissed 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. I published my reasons on 29 November 2019: Commonwealth Director of Public Prosecutions v Country Care Group Pty Ltd [2019] FCA 2200 (originally allocated the medium neutral citation [2019] FCA 2020). On 12 December 2019, as previously foreshadowed, all three accused applied for leave to appeal from my decision. The applications for leave to appeal are required to be heard and determined by the judge who made the orders: see ss 30AA(4), 30AB(2) and 30AE(3) of the Federal Court of Australia Act 1976 (Cth).

4    The applications were heard on 18 December 2019. The prosecutor opposed the applications for leave to appeal, and opposed the applications to vacate the trial date if leave to appeal was refused, but supported the applications to vacate the trial date if leave to appeal was granted.

5    The basis for the unsuccessful severance applications was an assertion that the alternative bases for guilt advanced by the prosecutor would require extended unanimity directions of impossible complexity, depriving the accused of a fair trial on counts 1 to 3. I did not accept that was so in any of the respects argued, but expressed concerns as to certain aspects of the prosecutor’s case.

6    In addition to a non-publication order over my reasons, and other procedural orders, I made orders consequent upon the publication of my reasons, and pertinent to the present applications, requiring the prosecutor to:

(1)    furnish a draft aide-memoire addressing the competition condition, which was carried out;

(2)    reconsider her position in relation to the four alternative bases advanced for establishing the purpose/effect condition, which resulted in reducing that element to a single effect condition; and

(3)    provide a further explanation as to what the effect is expected to be on the trial and on the expected jury deliberations of references to particular tender goods, which again was carried out.

7    The discretion to grant leave in s 30AB(2) is expressed in terms that are unfettered. However the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor v Dart) at 399-400 accepted a line of authority as to the general guidance to be applied, which this Court should normally accept in the exercise of such a discretion. That guidance comes down to two tests:

(1)    first, whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and

(2)    secondly, whether substantial injustice would result if the leave were refused, supposing the impugned decision to be wrong.

8    The two tests identified in Decor v Dart are not in separate compartments, but are cumulative and also bear on each other. The degree of doubt which is sufficient in one case may be different from that required in another. This Court should not regard its hands as tied by the guidance in the two tests, especially as there will continue to be cases raising special considerations. As to special considerations, the accused point to this case representing the first time that any issue in relation to jury directions has arisen in this Court under the exclusive criminal jurisdiction for criminal cartel offences. Indeed, it is the first time this has arisen in any Court in Australia. They submit that it is important that this trial proceed as free of error as possible. The prosecutor does not suggest otherwise, while submitting that no such error is apparent.

9    The accused advance two topics as warranting the grant of leave to appeal. It is acknowledged by the accused that the arguments now advanced go further than the argument in support of severance previously advanced, but they point out that the additional information furnished by the prosecutor has meant that aspects of what is now relied upon only came into existence as a consequence of the orders made at the time of delivering my reasons. There is a question as to whether leave would be required to rely upon those further arguments, but I note that they were a matter of greater and important detail and emphasis, rather than any difference in direction.

10    The first topic concerns the conclusions I reached about the lack of any need for unanimity directions for the conduct element. The core and substance of this topic involves an argument that the 12 episodes of conduct relied upon by the prosecutor (summarised at [43] of my prior reasons) have quite different potential characteristics giving rise to different potential defences, especially having regard to three broad types of conduct as to presentations at conferences where multiple different members of the Country Care Group are alleged to have been present in the room, individual bilateral meetings with individual Country Care Group members, and bilateral communication enclosing a bilateral draft contract containing an alleged offending cartel provision. In substance, the accused submit that the prosecutor’s decision to rely upon a single charge straddling these 12 events as a course of conduct, rather than a separate charge for each event, means that unanimity is required for each such event before the jury can rely upon it in reaching a guilty verdict, especially when regard is had to the intention fault element attaching to the attempt to induce offence.

11    I remain unconvinced that any of these 12 events is itself an essential element or ingredient of the offence as charged, so as to require a unanimity direction, or that the overarching intention element attaching to the attempt to induce changes this. The element or essential ingredient is a meeting of the minds involving a commitment to act in a particular way, as alleged, not the different ways in which that commitment may be procured: see Australian Competition and Consumer Commission v Australian Egg Corporation Ltd [2017] FCAFC 152; 254 FCR 311 at [95]. That can be proven by a course of conduct with different aspects to it.

12    I therefore do not accept that the fault element of intention as to the attempt to induce charged changes that element (or essential ingredient) characterisation such that each juror must be satisfied as to that element by the same route or reasoning as to either any physical element or the overall intention fault element. However, the novelty of the application of the principles described in R v Walsh [2002] VSCA 98; 131 A Crim R 299, and applied by the High Court in Lane v The Queen [2018] HCA 28; 357 ALR 1, to this sort of offence is such that I consider that the conclusion I reached in that regard may be seen to be attended by sufficient doubt to warrant reconsideration by a Full Court. Put simply, there is a real risk that I may be wrong. When this risk is coupled with the dire consequences for all concerned supposing I am wrong (and thus be productive of substantial injustice to the accused in particular), I consider that this is a proper basis for the grant of leave to appeal. I do not consider that a right of appeal in the event of a conviction is a sufficient remedy in all the circumstances of this case, even if it more commonly will be enough in an ordinary case. That is so because, if I am wrong, the trial will be conducted upon an incorrect basis which could not be rescued by the application of the proviso.

13    The second topic concerns the conclusions I reached about the approach of the prosecutor to rely upon “Tender Goods” for both the purpose/effect condition, and thus element (now just an effect condition/element) in s 44ZZRD(2)(c), and for the competition condition and thus element in s 44ZZRD(4)(c), of the Competition Act, rather than upon individual goods in the Tender list. The core and substance of this topic involves an argument that those provisions mean that the goods relied upon in this case must be the same for both. This is not an attractive argument, not least because it makes these provisions very difficult to apply to multi-goods or multi-services situations. But if that is so, that is a product of legislative drafting, which the accused are entitled to rely upon.

14    The prosecutor’s argument to the contrary in substance relies upon a golden, rather than literal, interpretation of the legislation, and in particular a reading down of the s 44ZZRD(4)(c) “those goods” cross-reference to s 44ZZRD(2)(c), of the Competition Act. While I would be inclined to read the legislation in the more beneficial way that the prosecutor effectively contends is appropriate, it is reasonably arguable that this is not open to the Court. It follows that this is, of itself, sufficient reason to grant leave to appeal, although the risk of substantial injustice identified above also applies.

15    I therefore consider that leave to appeal should be granted in respect of both topics, but that the appeal should be prosecuted with expedition. The date to be fixed for the hearing of the appeal in Melbourne is Friday, 31 January 2020, with an additional day if needed on Monday, 3 February 2020. The parties are directed to confer forthwith and to furnish agreed or competing orders for the conduct of the appeal as a matter of urgency, preferably in the next few hours.

16    Finally, the trial will be required to be fixed for hearing in 2020. The parties are directed to confer and provide alternative proposed trial dates by 13 January 2020, and dates for the hearing of any further pre-trial applications, and any further applications for leave to appeal, well before such a trial date. As this is the second time that the trial has been vacated, I am determined to ensure that this does not happen a third time and that the trial will proceed in 2020.

Associate:

Dated:    19 December 2019