Federal Court of Australia

Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 3) [2020] FCA 1714

REASONS FOR RULING

BROMWICH J:

1    These are the reasons for one of several rulings on objections to evidence heard in a pre-trial hearing in this criminal proceeding during the week of 9 to 13 November 2020.

2    The first three charges in the indictment allege an attempt to induce a person to contravene a cartel offence provision contrary to s 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth) (Competition Act), by virtue of s 79(1)(b) of that Act, by way of making an arrangement or arriving at an understanding containing a particularised cartel provision. The first accused, The Country Care Group Pty Ltd, and the second accused, Mr Robert Hogan, are charged as principals. The third accused, Mr Cameron Harrison, is charged as an accessory.

3    By way of general background, the prosecutor’s case is that Country Care via Mr Hogan set up a network of subcontractors comprising existing independent businesses like Country Care around the country. This network was called the Country Care Group, and the subcontractors were referred to as “members”. The network was formed for the purpose of supplying assistive technology products under a Mobility and Functional Support Tender contract that Country Care secured with the Commonwealth Department of Veterans’ Affairs (DVA).

4    The particularised cartel provision is that members of the Country Care Group would not advertise goods for sale below the prices that Country Care contracted with the DVA to sell at under the Tender. As will be seen, such advertising is directed to sales other than under the DVA Tender contract, because there is a tender price for sales made under that contract.

5    Section 44ZZRD(1) of the Competition Act provides:

For the purposes of this Act, a provision of [an] … 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.

6    In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 30, a convenient summary and analysis of the elements relevant to the first three charges in the indictment, including what is required to prove the fault element relating to a cartel provision is set out at [55(4)], [64]-[67] and [138]-[143]. In short, the prosecutor has to prove beyond reasonable doubt that Mr Hogan and Country Care engaged in the conduct of intentionally attempting to induce Country Care Group members to enter into an arrangement or arrive at an understanding, in the knowledge or belief of the circumstance that it would contain the particularised cartel provision. This includes, in this case, proving that the alleged provision met the aspects of the definition of “cartel provision” in s 44ZZRD(1)(a)(i) and (b) of the Competition Act. As to that physical circumstance element, it must be shown that the alleged cartel provision had the dual characteristics of satisfying:

(1)    the “purpose/effect condition”, requiring the prosecution to prove, within the terms of s 44ZZRD(2)(a) and (c), that the proposed cartel provision was likely to have the effect of directly or indirectly maintaining the price for goods supplied by any of the proposed parties to the arrangement or understanding; and

(2)    the “competition condition”, requiring the prosecution to prove, within the terms of s 44ZZRD(4)(a) and (c), that at least two of the proposed parties to the arrangement or understanding, were likely to be in competition with each other in relation to the supply of those goods.

7    The appeal to the Full Court arose because an application to stay the first three charges of the indictment was dismissed. The stay was sought because of asserted excessive complexity in proving the elements of the first three charges. The appeal was largely resolved by significant changes to the way in which the prosecutor brought its case. Instead of relying upon four different ways of establishing the physical circumstance element in relation to a cartel provision, the prosecutor elected to proceed in a more limited way, as follows:

(1)    The “purpose/effect condition” relied upon became confined to a case that the cartel provision, if implemented, would have had the likely effect of maintaining prices at which Country Care Group members supplied assistive technology goods to the general public, being goods that Country Care had contracted to sell under the DVA Tender contract. The prosecutor abandoned reliance upon an additional three strands to prove either the purpose or likely effect condition in relation to supply under the DVA Tender contract, or to prove the purpose/effect condition in relation to supply to the general public.

(2)    The “competition condition” became confined to a case that the goods and putative competitors relied upon are confined to a relatively short list of goods and a relatively short list of Country Care Group entities, as identified in Schedule 6 to the notice of the prosecution case. The prosecutor abandoned reliance upon any other goods in the DVA Tender list to prove the competition condition as part of the circumstance physical element.

8    Proof of the fault element must correspond to the physical element as required by s 3.2(b) of the Criminal Code (Cth): see R v Campbell [2008] NSWCCA 214; 73 NSWLR 272 at [44]. The three accused failed on an appeal point to the effect that the fault element had to be proved on as narrow and confined a basis as the physical element. The Full Court held:

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

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

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

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

9    After some debate during the course of submissions, common ground emerged that I am satisfied is consistent with a proper understanding of the above reasoning in the Full Court decision in relation to the proof of the fault element for the circumstance physical element. It is agreed between the parties that, because this physical element must be confined to the supply of goods to the general public, and must not include supply under the DVA Tender contract to eligible beneficiaries, the corresponding fault element must be similarly constrained. However, for the reasons given by the Full Court reproduced above, that constraint does not require the same degree of detail for the fault element aspect as is required for the physical element, being specific goods or specific Country Care Group members as described in Schedule 6.

10    The distinction between proof of actus reas (or physical elements) and proof of mens rea (or fault elements) for a diverse range of offences is well understood. In part that is a function of the reality that fault elements are often, if not invariably, proved by way of circumstantial evidence. For example, the prosecutor in a drug importation case must prove that a substance that the accused is shown to have intentionally imported is in fact a border controlled drug, such as heroin. However, proof of the corresponding fault element of recklessness that the substance was a border controlled drug does not need to be that specific. It is enough to prove, for example, that the accused was aware of the likelihood of the substance being a border controlled drug, and that is sufficient to support an inference beyond reasonable doubt that the required state of mind existed. The accused does not have to turn their mind to any specific border controlled drug even though the prosecutor proves that physical element by reference to one such specific drug.

11    That process of inferential proof and reasoning applies equally when the fault element for an offence is knowledge or intention: see the three seminal High Court cases on this area of the law of Kural v The Queen (1987) 162 CLR 502 at 504-5, Saad v R (1987) 70 ALR 667 at 668-9, and Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 219-20. As Mason CJ, Deane and Dawson JJ pointed out in Kural at 505:

What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law.

12    Thus, following the Full Court decision as to the proof of the circumstance fault element, the prosecutor must prove beyond reasonable doubt that Mr Hogan (and through him Country Care) knew or believed that the arrangement or understanding sought to be achieved would contain a cartel provision that would at least have had the likely effect of maintaining prices at which Country Care Group members supplied assistive technology goods to the general public, and that this was at least likely to be the subject of competition between at least two such members. That is doubtless an exacting task and will rely upon a range of evidence to support an inference as to that state of mind existing that covers the goods and entities identified in Schedule 6, but does not need to go so far as to prove that state of mind for any specific goods or entities, provided it encompasses the goods and entities relied upon to establish the physical element. Such knowledge may be proven by proof of awareness that this circumstance exists or will exist in the ordinary course of events: see s 5.3 of the Criminal Code.

13    The substance of the prosecutor’s case is that Mr Hogan and Country Care sought to have the particularised cartel provision adopted by the proposed arrangement or understanding in order to meet a concern held by Mr Hogan that, if members of that group advertised goods at prices below the DVA contracted price for any of the same goods, this might be noticed by the DVA and result in lower Tender contract prices. The evidence in question is proposed to be relied upon to prove that Mr Hogan and Country Care knew, or believed, that at least two of the parties to the proposed arrangement or understanding were likely to be in competition with each other in relation to the supply of the relevant goods to the general public.

14    All three accused object to the admission of a class of evidence to prove the fault element of knowledge or belief of the circumstance that the proposed arrangement or understanding would contain the particularised cartel provision upon the basis that:

(1)    it is not relevant under s 55 of the Evidence Act 1995 (Cth); or alternatively

(2)    the danger of unfair prejudice that it poses will outweigh its probative value and that it therefore must be excluded under s 137 of the Evidence Act.

15    The principles and case law in relation to s 137 of the Evidence Act are set out in Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 2) [2020] FCA 1713 at [3]-[6], and adopted for the purposes of this adjudication.

16    As detailed above at [7], the prosecutor now relies on the supply of goods to the public by members of the Country Care Group as proof of the physical circumstance element, as defined in the notice of the case for the prosecution, as opposed to supply under the DVA Tender contract to eligible beneficiaries. The live issue for resolution is the asserted limit on the scope of the evidence able to be relied upon to prove that fault element, with the concern of the accused being focused on the competition condition aspect. That is, the issue in dispute concerns the evidence that may be relied upon by the prosecutor to prove that Mr Hogan knew or believed that the supply of assistive technology goods to the general public was at least likely to be the subject of competition between at least two Country Care Group members who supplied such goods.

17    The evidence in question concerns competition between members of the Country Care Group in relation to sales under the DVA Tender contract. The evidence objected to is in two broad and overlapping categories. The first category is evidence of supply under the DVA Tender contract, and more particularly, evidence tending to show Mr Hogan’s awareness of that competition, being relied upon to prove his awareness of like competition in relation to supply to the general public (DVA competition evidence). The second is evidence of “poaching” (sometimes referred to as “stealing”) from Country Care Group members of DVA Tender contract orders by Country Care (DVA poaching evidence), also sought to be relied upon to prove Mr Hogan’s awareness of like competition in relation to supply to the general public. The accused raise concerns over these two overlapping categories for essentially the same reason, namely that it is relied upon not just as proof of competition in relation to DVA Tender contract supplies, including awareness by Mr Hogan of that competition, but also in relation to competition and awareness of competition in relation to sales to the “general public” as defined in the notice of the prosecution case. The arguments relied upon in support of the exclusion of both categories of evidence are essentially the same, and were argued together.

18    The accused point to examples of evidence said to contain the vice complained of in both categories. The primary example relied upon for DVA competition evidence, being [27] of the statement of George King, is reproduced in the written outline of submissions for Country Care and Mr Hogan. However, that paragraph also contained hearsay and opinion evidence separately objected to, which muddies the waters and is a feature that is best overlooked for present purposes. Similar vices (and collateral objections) are asserted in relation to the evidence elsewhere in Mr King’s statement at [22], [24]–[27] and [84]; in the original statement of Adam Mortley at [41] and [80(a)] and his supplementary statement at [12] and [19]; the supplementary statement of Julianne Brennan at [15]; the second supplementary statement of Andrew Cuddihy at [17]; the second supplementary statement of Peter Kelsh at [42]; and the supplementary statement of Mark Grayson at [15]. Reference is also made to the supplementary statement of Brooke Watson at [17]-[18], but that is better dealt with as DVA poaching evidence.

19    The primary example relied upon for the DVA poaching Evidence, being [41] of the statement of Alison Vigners, is also reproduced in the written outline of submissions for Country Care and Mr Hogan. That evidence is about a State meeting of Country Care Group members at which it is alleged that concerns were raised with Mr Hogan about Country Care setting up a company business in Sydney without member consultation and securing DVA Tender work (described as “stealing” that work). It is recorded that Mr Hogan’s view was that he had nothing to apologise for. Again, similar vices are asserted, with some repetition, in relation to the evidence in: Mr Mortley’s first statement at [67] and [78]-[82]; Ian Lancaster’s statement at [47]-[49]; Ms Brennan’s supplementary statement at [18]-[19]; Mr Cuddihy’s first statement [128]–[132], supplementary statement at [26] and second supplementary statement at [21(b)-(c)]; Ms Watson’s supplementary statement at [17]-[18]; Mr King’s statement at [22], [27], [85]; Phillip Riska’s supplementary statement at [19]; and documents 1000741.011.001.0603 and 1000741.011.001.0599 exhibited to the record of interview with Justin Watts dated 30 September 2016 (not produced with the statement of Blake Donald, as referenced in the first and second accused’s submissions on objections).

20    Understandably given the pressure of time, I was not taken to those particular additional passages in the course of oral argument, but have considered them and taken them into account to better understand the written and oral submissions made in reliance upon them. That evidence is evidently sought to be relied upon to prove the nature and extent of competition between Country Care Group members, including outlets of Country Care itself, in relation to both supply under the DVA Tender contract, such as via referrals by occupational therapists, and in relation to supply to the general public.

21    Putting to one side objections to the manner and form of the evidence, considering this evidence revealed to me the artificiality of the approach that the accused urge upon the Court. Contrary to assertions made during the course of legal argument, it seems that at least as between some members there was no neat dividing line between supply and competition in supply in relation to the DVA Tender contract and in relation to supply to the general public. However, I understand that the two types of supply did have significant differences imposing different restraints on rivalry and other forms of competition, which I address below.

22    The submissions for the accused are to the effect that, because the fault element must attach to its corresponding physical element, the Full Court could not sensibly be understood to be saying that the prosecutor was entitled to rely upon DVA competition evidence or DVA poaching evidence in order to prove state of mind as to competition in relation to supply to the general public. Considerable reliance is placed on the prosecution’s abandonment of its alternative strands of argument in relation to supply under the DVA Tender contract for the purposes of proof of the circumstance physical element, as detailed above at [7]. Reliance is also placed on the different processes required to effect a sale to DVA beneficiaries, as opposed to effecting a sale to the general public. I consider this point of difference and others in the context of the oral submissions in reply by the accused.

23    The accused submit that any DVA competition evidence or any DVA poaching evidence is not at all relevant to the fact in issue of Mr Hogan’s awareness (and thus knowledge) of competition in relation to supply to the general public. They argue in the alternative that, even if DVA competition evidence or DVA poaching evidence is in some way able to be made relevant to that issue, it would be so prone to encouraging impermissible reasoning by a jury, beyond correction or avoidance by a direction, that the danger of unfair prejudice would outweigh any such degree of probative value. Based on that reasoning, the accused contend that the prosecutor should not be permitted to adduce any DVA competition evidence or any DVA poaching evidence at all, necessarily encompassing and excluding any evidence of awareness of Mr Hogan in that regard.

24    The prosecutor embraces the articulation of the elements identified by the accused, but seeks to draw a distinction between what those elements are (being legal questions), and how they may be proved (being factual questions), especially in relation to evidence which tends to prove the fault element of relevant knowledge or belief on the part of Mr Hogan. The prosecutor particularly seeks to rely upon communications either directly to Mr Hogan, or when he was present. Those communications are alleged to be of a kind that brought to his attention competition involving the supply of the same pool of goods under the DVA Tender contract as were supplied to the general public. The prosecutor refers to examples of evidence as to the supply of the individual goods listed in Schedule 6 both under the DVA Tender contract and to the general public contained in the statements of Mr Cuddihy and Mr Mortley, although I do not understand the evidence sought to be relied upon was necessarily confined to goods listed in Schedule 6. I have reviewed that sample evidence in order to understand better what is being referred to. The accused object to any such evidence that includes or is confined to supply under the DVA Tender contract, as opposed to being confined to supply to the general public.

25    The prosecutor submits that the evidence in support of the circumstantial case that Mr Hogan knew or believed, including by awareness, that there was competition in relation to the supply of goods in the DVA Tender list to eligible DVA beneficiaries, is both relevant and probative in relation to Mr Hogan knowing or believing that competition was at least likely in relation to supply of the same goods to the general public. As I understood this submission, if the DVA competition evidence or the DVA poaching evidence proposed to be adduced was capable of proving that Mr Hogan knew or believed that it was at least was likely that there would be competition between two or more members of the Country Care Group in relation to the supply of goods in the DVA Tender list to eligible DVA beneficiaries, that would be legitimate and probative evidence to support an inference that he knew or believed that it was at least was likely that there would be competition between the same members in relation to the supply of the same goods to the general public. During the course of legal argument the prosecutor acknowledged that it could not (and therefore would not) invite the jury to conclude that proof of supply in relation to goods under the DVA Tender contract could be directly equated with the elements of the offence. The prosecutor submits that any such reasoning process could be the subject of a direction to warn against such impermissible reasoning, and that this would not be unduly complicated.

26    The burden of the prosecutor’s submission is that the jury could be given a clear and effective direction that it was not enough for them to find that Mr Hogan had the requisite knowledge or belief in relation to competition in the supply of those goods to eligible DVA beneficiaries. Rather, they would need to be directed that they had to be satisfied that, if they found that Mr Hogan had such a knowledge or belief, this, in combination with other evidence, it was for them to decide whether or not this supported an inference that he also held such knowledge or belief in relation to competition in the supply of the same goods to the general public. Viewed in this way, the impugned evidence would be part of a matrix of circumstantial evidence upon which the jury would be asked by the prosecutor to draw the necessary inference about knowledge or belief in relation to the existence of the competition condition: see R v Hillier [2007] HCA 13; 228 CLR 618 at [46]-[48].

27    The prosecutor therefore does not rely upon any simple and impermissible substitution of a conclusion based on the DVA competition evidence or DVA poaching evidence to prove knowledge or belief in relation to competition in the supply of the same goods to the general public to the satisfaction of the jury. As this goes to an element of the offence charged, there has to be a separate and distinct inferential conclusion reached by the jury, on the totality of the evidence which is not confined to the impugned evidence, that Mr Hogan knew or believed beyond reasonable doubt that that competition was at least likely in relation to supply of the same goods to the general public by at least two members of the Country Care Group, encompassing those goods and members relied upon to prove the purpose/effect condition aspect of the circumstance physical element.

28    The response by the accused to the prosecutor’s argument on the issue of unfair prejudice, in part elaborating upon submissions already made, may be briefly summarised as follows:

(1)    The prosecutor has not attempted to provide any indication of the content of the direction that could be given to the jury, nor sufficiently explained how this evidence would be put to the jury, nor how the danger of unfair prejudice arising from conflating two separate and distinct areas of supply could be avoided.

(2)    The requirements to be met for a DVA supply and for supply to the general public, and the means by which such supplies would be fulfilled, were markedly and substantially different, including such things as different formal ordering and approval requirements, and different retail facilities being required, and different marketing. This is said to belie any suggestion of a ready or easy inference that proof of knowledge or belief as to competition in relation to supply under the DVA Tender contract would support the same inference in relation to supply to the general public, being a sufficiently real and material distinction for the prosecutor’s original case to have dealt with the two different types of supplies each by quite separate strands (as outlined above).

(3)    The DVA competition evidence has the capacity to affect the likelihood of a conclusion about Mr Hogan’s state of mind that is perilously close to a form of tendency evidence, because the jury would be invited, in substance, to reason that because there was evidence of competition in one sector and awareness of that competition, it is more likely that the same entities competed in another sector in relation to the same goods, but supplied to different people, and that Mr Hogan was aware of that.

(4)    The approach urged by the prosecution means the jury will struggle to understand the “riddles” of all the different parts of s 44ZZRD, about which they would have to be directed if this evidence was permitted to be adduced.

I respond to each of those submissions in turn.

29    While no draft direction to the jury has been furnished by the prosecutor, I attach little weight to this. Such a direction will turn on the evidence ultimately to be relied upon and how it unfolds. It will entail obtaining the input of counsel for all the parties.

30    I do not consider that further detail of how the prosecution case is to be put to the jury was necessary or even appropriate for the purposes of this argument. The prosecutor’s case is spelt out in sufficient detail in the lengthy and reasonably detailed notice of the prosecution case (being the third further amended version), including in particular the evidence identified in footnotes 98 to 100. This is to be read with the further particulars in Schedule 6 of that notice, relating to proof of the purpose/effect condition in s 44ZZRD(2)(a) and (c), and proof of the competition condition in s 44ZZRD(4)(a) and (c). While any necessary direction will require care, and while an element of the danger identified and relied upon undoubtedly may arise in a case that has some factual and legal complexity, I do not accept that this is so to such a degree that either it cannot readily be done, or is incapable of being made effective to quell any such danger that does arise. In part because I am of the view that the extent of the danger has been overstated, I consider the asserted complexity in giving any such necessary direction to be correspondingly overstated, without doubting the difficulty of that task.

31    I accept that there are likely to be important distinctions between the processes for supply to the DVA beneficiaries and the processes for supply to the general public of the kind identified, and most likely in other ways that have not been addressed. However, such differences are well within the capacity of a jury to weigh and consider, appropriately guided by strengths and weaknesses in the evidence itself, the submissions of the parties, and directions to the jury. As can be seen from the analogy above at [10], and the longstanding authorities on the inferential proof of state of mind referred to above at [11], the present case is far from unique. The jury may consider the differences are too great to support the inference advanced by the prosecutor, or may not consider that this imposes any particular impediment, or there may be graduations in between. It is for the jury to evaluate that evidence in accordance with the directions that are given. I am satisfied that any danger of unfair prejudice can be properly countered through appropriate directions as to the correct and confined inferential reasoning process available to them.

32    While I accept that the impugned evidence, adduced without restraint, explanation, or direction, could leave open a slight possibility of impermissible propensity reasoning, the above observations about the direction to be given equally applies to this concern. A jury can and must be trusted to comply with suitable directions unless actual compliance is doubtful. I do not accept that to be the case in relation to this evidence.

33    I am unable to accept, on the submissions that have been made, that the adducing of the impugned evidence in and of itself gives rise to what are said to be unidentified additional “riddles” arising from the different parts of s 44ZZRD about which the jury would have to be directed. The criminal cartel provisions are undoubtedly of unusual complexity and would be unfamiliar to a lay person (and indeed many lawyers), this being the first criminal cartel jury trial to take place in Australia. However, I do not see this evidence as significantly adding to the problem of an already complex series of legislative provisions for which directions will be required. The provisions relied upon will not change in the face of any such evidence adduced, and the challenge lies, as it will in any event, in directing the jury about applying the facts as found to the complex and unusual legal principles and requirements that arise in this case.

34    Doubtless, the case against each accused would be substantially weaker without the impugned evidence, but that is an indication of its probative value, which I consider is far from low or inconsequential as a result of reading the evidence to which my attention was directed. This aspect of the prosecutor’s case involves evidence of the supply of the same goods from the Tender list by the same suppliers, but to different consumers by different supply arrangements. Proof of the fact of competition between two or more Country Care members in relation to supply of Tender list goods to DVA beneficiaries as a matter of logic may, depending on the evidence, tend to increase the likelihood of there being competition between the same members in relation to the supply of Tender list goods, including the particular goods relied upon, to the general public. The strength or otherwise of that inference depends upon the evidence, both as to individual items of evidence, and as to their cumulative effect.

35    Correspondingly, evidence of awareness and thereby knowledge or belief on the part of Mr Hogan of the existence of such competition in relation to the supply of Tender list goods to DVA beneficiaries as a matter of logic may, depending on the evidence, support an inference that he was aware of it being likely that there would be corresponding competition between the same members in relation to the supply of Tender list goods to the general public, encompassing the particular members and goods relied upon. The prosecutor is entitled to adduce evidence as part of a matrix of circumstantial evidence relied upon to seek to prove this aspect of the fault element. In my view, it is impossible to read the Full Court decision as ruling such evidence out of contention. To the contrary, this reasoning is supported by the terms of the Full Court decision at [141] reproduced at [8] above, especially the express reference to circumstantial evidence.

36    Properly considered, most of the submissions for the accused in substance related to arguments as to limitations on the weight that could be given to the impugned evidence by the jury as part of an argument as to exclusion by reason of the asserted danger of unfair prejudice. Submissions can be made and cross-examination can be undertaken to resist this inference sought by the prosecution being drawn. Any unfairly prejudicial, and therefore impermissible, reasoning can be readily identified and reduced to quite a narrow compass, and a direction given warning against impermissible reasoning being applied. I see little real risk that such a direction will be ineffective. I accept that there will be certain practical difficulties in the adducing of the evidence, and in effectively cross-examining upon it, but I do not accept that this evidence should be excluded by reason of any real and incurable danger of unfair prejudice.

37    I therefore rule against the impugned evidence being inadmissible upon the ground of relevance. I also rule that the asserted danger of unfair prejudice does not outweigh the probative value of the evidence, is not as substantial a risk as contended, and can properly be met, if necessary, by appropriate directions to the jury, and that the evidence is therefore not inadmissible upon that basis. This ruling does not preclude a challenge to admissibility of any of this evidence on other grounds.

Associate:

Dated:    26 November 2020