Federal Court of Australia

Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 1 – Indictment) [2021] FCA 757

ORDERS

THE COURT ORDERS THAT:

1.    On or before 21 July 2021, the prosecutor file a new indictment pursuant to r 3.07(3) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) which remedies the defects and deficiencies in the existing indictment which are identified in the reasons for judgment.

2.    The proceeding be listed for a further case management hearing on 28 July 2021 at 9.30 am.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    On 1 February 2021, the prosecutor, the Commonwealth Director of Public Prosecutions, filed an indictment in this Court pursuant to s 23BF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 3.01 of the Federal Court (Criminal Proceedings) Rules 2016 (Cth). That indictment charged nine accused with various offences against s 44ZZRF(1) and s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) (C&C Act). The accused are, in the order in which they appear in the indictment, Citigroup Global Markets Australia Pty Limited, Mr Itay Tuchman, Mr John McLean, Mr Stephen Roberts, Deutsche Bank Aktiengesellschaft, Mr Michael Ormaechea, Mr Michael Richardson, Australia and New Zealand Banking Group Limited (ANZ) and Mr Richard Moscati. Each of the accused had been committed for trial in this Court following a lengthy committal hearing in the Local Court of New South Wales.

2    At a case management hearing on 22 February 2021, the accused foreshadowed filing applications objecting to the indictment pursuant to s 23CP(1)(a) of the FCA Act on the basis that there were formal defects apparent on the face of the indictment. Some of the accused went so far as to also suggest this Court lacked jurisdiction on the basis of s 23CP(1)(b) of the FCA Act because the indictment was sufficiently defective to be invalid. Each of the accused subsequently filed interlocutory applications which, in summary, sought an order quashing the counts in the indictment relating to them and an order discharging them in relation to those counts variously under ss 23, 23CB(1), 23CP(2)(a)(i)-(iv) of the FCA Act. Each of the accused contended that the statements of the offences in the indictment did not comply with r 3.01 of the Rules, in particular subrules (3) and (4)(c), because they did not describe the nature of the alleged offences with “reasonable particularity”. The central claim in that regard was that the statements of offences did not identify the essential factual ingredients of the offences. The interlocutory applications filed by each of the accused were supported by affidavits which described the chronology of the proceeding since the accused were first charged and annexed correspondence relating to their various requests to the prosecutor for particulars of the alleged offences. Written outlines of the submissions to be advanced by the accused were due to be filed and served on 12 March 2021.

3    The interlocutory applications filed by the accused were listed for hearing on 1 April 2021. On 22 March 2021, the prosecutor served a Notice of the Prosecution’s Case in compliance (or, as the accused have foreshadowed arguing, in purported compliance) with s 23CE of the FCA Act and in accordance with an order made at the case management hearing on 22 February 2021. On the same day, the prosecutor filed a new indictment pursuant to r 3.07(3) of the Rules. The prosecutor did not require the leave of the Court to file the new indictment. The new indictment was plainly intended to deal with one of the main objections to the former indictment which had been identified in the outlines of submissions that had been filed by the accused: that the statements of the offences did not contain any, or any meaningful, particulars of the alleged arrangements or understandings that were central to each of the offences. The filing of the new indictment, which replaced the indictment which was the subject of the interlocutory applications, did not assuage the accused or deter them from proceeding with their applications as if they were applications to quash the new indictment. The new indictment, which replaced the indictment originally filed, is the subject of this judgment.

4    The central issue for determination raised by the interlocutory applications filed by the accused is whether the statements or particulars of the offences in the indictment sufficiently identify the essential factual ingredients of the alleged offences. If they do not, that would amount to a formal defect apparent on the face of the indictment. It would, in those circumstances, be open to the Court to quash the counts which suffer from that defect and discharge the accused in respect of those counts: s 23CP(2)(a)(i) of the FCA Act. Alternatively, it would be open to the Court to order the prosecutor to either amend the indictment to remove the defect or defects pursuant to s 23CP(2)(b) of the FCA Act, or make such other orders as appropriate in the circumstances: s 23CP(2)(a)(iv) of the FCA Act.

5    For the reasons that follow, I have concluded that the statements of the charges in the indictment for the most part do not sufficiently identify the essential factual ingredients of the alleged offences. I have determined, however, that the appropriate order to make at this stage of the proceeding is to order the prosecutor to file a new indictment pursuant to s 23BH of the FCA Act which remedies the defects identified in these reasons. I do not consider that it is appropriate to quash the indictment or discharge the accused in respect of any counts at this early stage of the proceeding. That is mainly because the deficiencies should be able to be readily remedied without causing any significant or irremediable prejudice to the accused.

THE CHARGED OFFENCES – PROVISIONS AND ELEMENTS

6    The indictment contains 42 charges. The charges are described in detail later. It suffices at this point to note that Citigroup and Deutsche Bank are each charged with three counts (and three alternative counts) of making an arrangement or arriving at an understanding that contained a cartel provision contrary to s 44ZZRF(1) of the C&C Act and three counts (and three alternative counts) of giving effect to a cartel provision in an arrangement or understanding contrary to s 44ZZRG(1) of the C&C Act. ANZ and each of the individual accused are variously charged with being knowingly concerned in, or a party to, the contraventions of s 44ZZRF(1) and s 44ZZRG(1) by Citigroup and Deutsche Bank and to have thereby contravened those provisions by operation of s 79(1)(c) of the C&C Act. ANZ and Mr Moscati are also charged with one count (and one alternative count) of aiding, abetting, counselling or procuring a contravention of s 44ZZRG(1) of the C&C Act by J.P. Morgan Australia Limited and to have thereby contravened that provision by operation of s 79(1)(a) of the C&C Act. J.P. Morgan has not been charged, but rather has been granted immunity from prosecution.

7    It is useful, before considering the indictment and the alleged offences in more detail, to briefly consider the relevant statutory provisions and the elements of the alleged offences. The following discussion of the elements of those offences is based on the relevant statutory provisions in the period August to September 2015, which is when the offences are alleged to have been committed. The present tense is used in this judgment for ease of expression.

8    Subsection 44ZZRF(1) of the C&C Act provides as follows:

(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.

9    Subsection 44ZZRF(2) provides that the fault element for s 44ZZRF(1)(b) is knowledge or belief. The expression “fault element” is referrable to The Criminal Code (which is the schedule to the Criminal Code Act 1995 (Cth)), which applies to both s 44ZZRF and s 44ZZRG of the C&C Act because they are offences against laws of the Commonwealth: see s 2.2 of the Code. Subsection 3.1(1) of the Code provides that an offence consists of physical elements and fault elements. The fault element of knowledge is defined in s 5.3 of the Code, which provides that a “person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events”. The Code does not explicitly include or define the fault element of belief.

10    No fault element is specified in relation to s 44ZZRF(1)(a). Making a contract or arrangement, or arriving at an understanding, involves conduct. Subsection 5.6(1) of the Code provides that, where the fault element for a physical element of an offence that consists only of conduct is not specified, the fault element is intention. Subsection 5.2(1) of the Code provides that a person has intention with respect to conduct if he or she means to engage in that conduct.

11    Subsection 44ZZRG(1) of the C&C Act provides as follows:

(1)    A corporation commits an offence if:

(a)    a contract, arrangement or understanding contains a cartel provision; and

   (b)    the corporation gives effect to the cartel provision.

12    Subsection 44ZZRG(2) provides that the fault element for s 44ZZRG(1)(a) is knowledge or belief.

13    No fault element is specified in relation to s 44ZZRG(1)(b). Giving effect to a cartel provision involves conduct. The fault element for that conduct is intention by reason of s 5.6(1) of the Code.

14    A critical element in both of the offences in s 44ZZRF(1) and s 44ZZRG(1) is that the contract, arrangement or understanding contained a “cartel provision”. Section 44ZZRD contains a very lengthy, detailed and complex definition of “cartel provision”. A provision of a contract, arrangement or understanding may be a “cartel provision” in many different or alternative ways. Two alternatives are relevant to the circumstances of the present case having regard to the way the prosecutor puts the case against the accused.

15    First, a provision is a “cartel provision” if it has the purpose of preventing, restricting or limiting the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding and at least two of the parties to the contract, arrangement or understanding are or are likely to be, or but for any contract, arrangement or understanding would be or would be likely to be, in competition with each other in relation to the supply, or likely supply, of those goods or services: see s 44ZZRD(1), (3)(a)(iii) and s 44ZZRD(4)(a), (b) and (h) of the C&C Act.

16    Second, a provision is a “cartel provision” if it has the purpose of directly or indirectly fixing, controlling or maintaining the price for goods or services supplied, or likely to be supplied, by any or all of the parties to the relevant contract, arrangement or understanding and at least two of the parties to the contract, arrangement or understanding are, or are likely to be, or but for any contract, arrangement or understanding would be or would be likely to be, in competition with each other in relation to the supply, or likely supply, of those goods or services: see s 44ZZRD(1), (2)(a) and (c) and s 44ZZRD(4)(a), (b) and (c) of the C&C Act.

17    Having regard to the relevant statutory provisions, the elements of the offence created by s 44ZZRF(1), expressed in simple terms, relevant to the particular circumstances of this case (as alleged by the prosecutor), are as follows.

18    First, the accused (Citigroup and Deutsche Bank) either made an arrangement or arrived at an understanding.

19    Second, the accused intended to either make that arrangement or arrive at that understanding.

20    Third, the arrangement or understanding contained a cartel provision: relevantly, a provision which, in summary, had the purpose of either preventing, restricting or limiting the supply of goods or services, or fixing, controlling or maintaining the price for goods or services which were supplied by any or all of the parties and, in each case, the parties were in competition with each other in respect of the supply of those goods or services.

21    Fourth, the accused knew or believed that the arrangement or understanding contained the cartel provision.

22    The elements of the offence created by s 44ZZRG(1), expressed in simple terms relevant to the particular circumstances of this case, are as follows.

23    First, there was in existence an arrangement or understanding that contained a cartel provision: relevantly, a provision which, in summary, had the purpose of either preventing, restricting or limiting the supply of goods or services, or fixing, controlling or maintaining the price for goods or services which were supplied by any or all of the parties and, in each case, the parties were in competition with each other in respect of the supply of those goods or services.

24    Second, the accused (Citigroup and Deutsche Bank) knew or believed that the relevant arrangement or understanding contained a cartel provision.

25    Third, the accused gave effect to the cartel provision.

26    Fourth, the corporation intended to give effect to the cartel provision.

27    As for the accessorial charges against ANZ and Mr Moscati, s 79(1)(a) of the C&C Act provides that a person who “aids, abets, counsels or procures a person to contravene … a cartel offence provision is taken to have contravened that provision”. The words “aid, abet, counsel or procure” are descriptive of a single concept which conveys the “concept of conduct that brings about or makes more likely the commission of an offence”: Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51 at [6]; see also Giorgianni v The Queen (1985) 156 CLR 473 at 493. Subsection 79(1A) of the C&C Act provides that s 11.2(2) to (5) of the Code apply to s 79(1)(a) of the C&C Act. The relevant effect of those provisions is that, for the accused to be guilty, it must be proved that the accused’s conduct in fact aided, abetted, counselled or procured the commission of the offence by the other person, the offence was committed by the other person and the accused intended that his or her conduct would aid, abet, counsel or procure the commission of any offence of the type committed by the other person.

28    Subsection 79(1)(c) of the C&C Act provides that a person who “is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of … a cartel offence provision is taken to have contravened that provision”. A person is knowingly concerned in, or party to, a contravention if the person, by act or omission, implicates themselves in, or associates themselves with, the contravention with knowledge of the essential elements of the contravention: Yorke v Lucas (1985) 158 CLR 661 at 670; R v Tannous (1987) 10 NSWLR 303 at 308.

29    Yorke v Lucas was decided before the enactment of the Code. The Code does not include any provisions which deal with accessorial liability or complicity on the basis of being “knowingly concerned in, or party to” a contravention or offence. The interrelationship or interaction between the elements of accessorial liability as discussed in Yorke v Lucas and the operation of pt 2.2 of the Code is not entirely pellucid. While it is unnecessary, for present purposes, to express a conclusion in relation to that issue, the better view is that, to the extent that being knowingly concerned in, or party to, a contravention involves participation by conduct, the relevant fault element under the Code in relation to that conduct is intention – the accused intended, by that conduct, to participate in the contravention: s 5.6(1) of the Code. As is clear from Yorke v Lucas, however, accessorial liability under s 79(1)(c) of the C&C Act also involves the fault element of knowledge – knowledge of the essential matters that constitute the contravention. It follows that accessorial liability under s 79(1)(c) involves twin fault elements of intention and knowledge. The same can most likely be said in respect of accessorial liability under s 79(1)(a) of the C&C Act: see Yorke v Lucas at 667.

30    It follows that, in simple terms, the elements of the accessorial charges are as follows.

31    First, a person (the “other person” – here, Citigroup, Deutsche Bank or J.P. Morgan) contravened s 44ZZRF(1) or s 44ZZRG(1) of the C&C Act, as the case may be.

32    Second, the accused, by act or omission, either: (a) implicated or associated themselves with that contravention (in the case of s 79(1)(c) of the C&C Act); or (b) aided, abetted, counselled or procured the contravention by the other person (in the case of s 79(1)(a) of the C&C Act).

33    Third, the accused either: (a) intended to implicate or associate themselves with the contravention; or (b) intended to aid, abet, counsel or procure the contravention, as the case may be.

34    Fourth, the accused had knowledge of all the essential facts in respect of the relevant contravention.

THE INDICTMENT

35    As already noted, the indictment contains 42 charges.

36    The charges all relate to or arise out of three arrangements or understandings that were allegedly made or arrived at between Citigroup, Deutsche Bank and J.P. Morgan.

37    The first alleged arrangement or understanding, particulars of which are included after charge 8 in the indictment, is alleged to have been made, or arrived at, on about 7 August 2015. The substance or effect of the arrangement or understanding is alleged to have been that “for the remainder of Friday 7 August 2015, each of the Investment Banks [Citigroup, Deutsche Bank and J.P. Morgan] would restrict its trading in [ANZ] Shares so each Investment Bank would not, by the end of the trading day, reduce the net number of ANZ Shares it held”. This arrangement or understanding is referred to in the Notice, though not in the indictment itself, as the Friday Understanding. I will refer to the particulars of this arrangement or understanding as the Friday Understanding particulars.

38    The second alleged arrangement or understanding, particulars of which are included after charge 15 in the indictment, is alleged to have been made, or arrived at, between about 7 August 2015 and about 8 August 2015. The arrangement or understanding was to the effect that “from Monday 10 August 2015: (1) Each of the Investment Banks would limit [their] trading in [ANZ] shares by selling, on each day, no more than 7% of the average daily volume of the trade in ANZ shares (with the aim of not exceeding 5%); and (2) If on a given day an Investment Bank sold above 7% of the average daily volume of the trade in ANZ shares, it would buy ANZ shares so that the net reduction in the number of ANZ shares held by that Investment Bank did not exceed the 7% limit for that day.” This arrangement or understanding is referred to in the Notice as the 5%-7% Understanding. I will refer to the particulars of this arrangement or understanding as the 5%-7% Understanding particulars.

39    The third alleged arrangement or understanding, particulars of which are included after charge 21 in the indictment, is alleged to have been made, or arrived at, on about 10 August 2015. The arrangement or understanding was to the effect that “on Monday 10 August 2015, each of the Investment Banks [Citigroup, Deutsche Bank and J.P. Morgan] would restrict its trading in [ANZ] Shares so each Investment Bank would not, by the end of the trading day, reduce the net number of ANZ Shares it held”. This arrangement or understanding is referred to in the Notice, though not in the indictment itself, as the Monday Understanding. I will refer to the particulars of this arrangement or understanding as the Monday Understanding particulars.

40    It should be noted that the indictment originally filed by the prosecutor did not include any particulars of the three alleged arrangements or understandings. That was remedied by the filing of the new indictment. The prosecutor was right to file a new indictment which included the particulars of the three alleged arrangements or understandings. The indictment would almost certainly have been held to be defective if those particulars were not included. Indeed, the charges in the indictment would have been almost impossible to comprehend.

41    Each of the three arrangements or understandings is alleged to have contained a cartel provision. Having regard to the way the charges have been particularised, however, it would perhaps be more accurate to say that each of the arrangements or understandings comprised or constituted a cartel provision.

42    The indictment contains particulars of the cartel provisions that are alleged to be contained in or comprised by each of the three arrangements or understandings. There are two different formulations of the particulars of the cartel provisions. The first formulation of the particulars of the cartel provision relates to charges 1 to 21. The second formulation relates to charges 22 to 42. Charges 22 to 42 are charged in the alternative to charges 1 to 21 as permitted by s 23BA of the FCA Act. Charges 22 to 42 are otherwise in identical terms to charges 1 to 21.

43    The particulars of the cartel provisions relevant in charges 1 to 21, which are included in the indictment after charge 21, are as follows:

The arrangements or understandings between Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited were cartel provisions because they:

(1)    satisfied the purpose condition in section 44ZZRD(3)(a)(iii) of the Competition and Consumer Act 2010 (Cth), namely they had a purpose of directly or indirectly preventing, restricting or limiting the supply or likely supply of Australia and New Zealand Banking Group Limited shares to persons or classes of persons by any or all of the parties to the arrangement or understanding; and

(2)    satisfied the competition condition in section 44ZZRD(4) of the Competition and Consumer Act 2010 (Cth), namely at least two of the parties to the arrangement or understanding:

   (a)    were, or were likely to be; or

(b)    but for the arrangement or understanding, would have been, or would likely to have been;

in competition with each other in relation to the supply of Australia and New Zealand Banking Group Limited shares.

44    In these reasons, I will refer to these particulars as the cartel provision (supply) particulars.

45    Charges 22 to 42 are pleaded in the alternative to charges 1 to 21. The only difference between the alternative charges is the particulars of the cartel provision. The particulars of the cartel provision relevant to charges 22 to 42, which are included in the indictment after charge 42, are as follows:

The arrangements or understandings between Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited were cartel provisions because they:

(1)    satisfied the purpose condition in section 44ZZRD(2)(a) of the Competition and Consumer Act 2010 (Cth), namely had a purpose of directly or indirectly controlling or maintaining the price for Australia and New Zealand Banking Group Limited shares supplied or likely to be supplied by any or all of the parties to the arrangement or understanding; and

(2)    satisfied the competition condition in section 44ZZRD(4) of the Competition and Consumer Act 2010 (Cth), namely at least two of the parties to the arrangement or understanding:

   (a)    were, or were likely to be; or

(b)    but for the arrangement or understanding, would have been, or would likely to have been;

in competition with each other in relation to the supply of Australia and New Zealand Banking Group Limited shares.

46    These particulars of the alternative cartel provision will be referred to in these reasons as the cartel provision (price) particulars.

47    Both Citigroup and Deutsche Bank have been charged with three offences of making an arrangement, or arriving at an understanding, that contained a cartel provision contrary to s 44ZZRF(1) of the C&C Act (charges 1, 9 and 16, or in the alternative charges 22, 30 and 37) and three offences of giving effect to a cartel provision in an arrangement or understanding contrary to s 44ZZRG(1) of the C&C Act (charges 5, 12 and 19, or in the alternative 26, 33 and 40). As has already been noted, the alternative charges involve the cartel provision (price) particulars rather than the cartel provision (supply) particulars.

48    Both Mr Tuchman and Mr McLean have been charged with six accessorial charges based on s 79(1)(c) of the C&C Act (charges 2, 6, 10, 13, 17 and 20) and six alternative accessorial charges (charges 23, 27, 31, 34, 38 and 41). Mr Roberts is charged with two accessorial charges (charges 2 and 6) and two alternative accessorial charges (charges 23 and 27). While it is not clear from the indictment in its current form, Messrs Tuchman, McLean and Roberts were (or at least are alleged to have been) senior officers, employees or representatives of Citigroup.

49    Charges 2, 10 and 17 (or in the alternative 23, 31 and 38) are that Mr Tuchman and Mr McLean were knowingly concerned in, or a party to, the contraventions of s 44ZZRF(1) of the C&C Act by Citigroup; being the contraventions arising from Citigroup, Deutsche Bank and J.P. Morgan making or arriving at the Friday Understanding, the 5%-7% Understanding and the Monday Understanding respectively. Mr Roberts is also named as an accused in charge 2 (and charge 23 in the alternative), it being alleged that he was also knowingly concerned in, or a party to, a contravention of s 44ZZRF(1) of the C&C Act by Citigroup; being the contravention arising from Citigroup, Deutsche Bank and J.P. Morgan making or arriving at the Friday Understanding. Charges 2, 10 and 17 allege, in effect, that the Friday Understanding, the 5%-7% Understanding and the Monday Understanding contained a cartel provision in the form of the cartel provision (supply) particulars, whereas charges 23, 31 and 38 allege that the those arrangements or understandings contained a cartel provision in the form of the cartel provision (price) particulars.

50    Charges 6, 13 and 20 (or in the alternative 27, 34 and 41) are that Mr Tuchman and Mr McLean were knowingly concerned in, or a party to, the contraventions of s 44ZZRG(1) of the C&C Act by Citigroup; being the contraventions arising from Citigroup giving effect to the cartel provisions in the Friday Understanding, the 5%-7% Understanding and the Monday Understanding respectively. Mr Roberts is also named as an accused in charge 6 (and charge 27 in the alternative), it being alleged that he was also knowingly concerned in, or a party to, a contravention of s 44ZZRG(1) of the C&C Act by Citigroup; being the contravention arising from Citigroup giving effect to the Friday Understanding. The particulars of the cartel provision in the case of charges 6, 13 and 20 are the cartel provision (supply) particulars and the particulars of the cartel provision in the case of charges 27, 34 and 41 are the cartel provision (price) particulars.

51    Both Mr Ormaechea and Mr Richardson have been charged with six accessorial charges based on s 79(1)(c) of the C&C Act (charges 3, 7, 11, 14, 18 and 21) and six alternative accessorial charges (charges 24, 28, 32, 35, 39 and 42). While it is not clear from the indictment in its current form, Mr Ormaechea and Mr Richardson were (or at least are alleged to have been) senior officers, employees or representatives of Deutsche Bank.

52    Charges 3, 11 and 18 (or in the alternative 24, 32 and 39) are that Mr Ormaechea and Mr Richardson were knowingly concerned in, or a party to, the contraventions of s 44ZZRF(1) of the C&C Act by Deutsche Bank; being the contraventions arising from Citigroup, Deutsche Bank and J.P. Morgan making or arriving at the Friday Understanding, the 5%-7% Understanding and the Monday Understanding respectively. Charges 3, 11 and 18 allege, in effect, that the Friday Understanding, the 5%-7% Understanding and the Monday Understanding contained a cartel provision in the form of the cartel provision (supply) particulars, whereas charges 24, 32 and 39 allege that the those arrangements or understandings contained a cartel provision in the form of the cartel provision (price) particulars.

53    Charges 7, 14 and 21 (or in the alternative 28, 35 and 42) are that Mr Ormaechea and Mr Richardson were knowingly concerned in, or a party to, the contraventions of s 44ZZRG(1) of the C&C Act by Deutsche Bank; being the contraventions arising from Deutsche Bank giving effect to the cartel provisions in the Friday Understanding, the 5%-7% Understanding and the Monday Understanding respectively. The particulars of the cartel provision relevant to charges 7, 14 and 21 are the cartel provision (supply) particulars and the particulars of the cartel provision relevant to charges 28, 35 and 42 are the cartel provision (price) particulars.

54    The indictment includes three charges against ANZ and Mr Moscati (charges 4, 8 and 15) and three alternative charges (charges 25, 29 and 36). Each of the charges is an accessorial charge based on s 79(1) of the C&C Act. While it is not pleaded as such in the indictment in its current form, Mr Moscati was (or at least is alleged to have been) an officer, employee or representative of ANZ.

55    The first charge (charge 4, or in the alternative charge 25) is that on about 7 August 2015, ANZ and Mr Moscati were knowingly concerned in, or a party to, the contravention by Citigroup, Deutsche Bank and J.P. Morgan of s 44ZZRF(1) of the C&C Act; being the contravention arising from those corporations making or arriving at the Friday Understanding.

56    The second charge (charge 8, or in the alternative charge 29) is that on about 7 August 2015, ANZ and Mr Moscati were knowingly concerned in, or a party to, the contravention by Citigroup, Deutsche Bank and J.P. Morgan of s 44ZZRG(1) of the C&C Act; being the contravention arising from those corporations giving effect to the cartel provision in the Friday Understanding.

57    The third charge (charge 15, or in the alternative charge 36) is that between about 7 August 2015 and about 30 September 2015, ANZ and Mr Moscati aided, abetted, counselled or procured J.P. Morgan to contravene s 44ZZRG(1) of the C&C Act; being a contravention arising from J.P. Morgan giving effect to the cartel provision in the 5%-7% Understanding.

58    The cartel provision in the case of charges 4, 8 and 15 is the cartel provision in the form of the cartel provision (supply) particulars, whereas the cartel provision in the case of charges 25, 29 and 36 is the cartel provision in the form of the cartel provision (price) particulars.

SHORT SUMMARY OF THE PROSECUTION CASE

59    While the interlocutory applications filed by the accused relate to the validity of the indictment on its face, it is useful to provide a short summary of the prosecution case as outlined in the Notice. The Notice is over 100 pages long, not including the schedules to it. What follows does not purport to be anything more than a very brief overview. Needless to say, the prosecution case at this stage comprises mere allegations and many of the facts and evidence recited in this summary are or are likely to be disputed and contested.

60    Citigroup, J.P. Morgan and Deutsche Bank were at the relevant time (and still are) major global investment banks (the investment banks). ANZ is a listed Australian public company and is one of the four major Australian banks.

61    In August 2015, ANZ sought to raise approximately AU$3 billion by way of an institutional share placement and share purchase plan. Citigroup, Deutsche Bank and J.P. Morgan agreed to underwrite the institutional share placement: see [17] of the Notice. As part of that agreement, they undertook to subscribe or procure subscriptions for certain proportions of any ANZ shares that they were not able to place with institutional investors.

62    As events transpired, the investments banks were not able to place all of the shares the subject of the placement with institutional shareholders and were accordingly required to subscribe for a large number of ANZ shares. Once they subscribed for those shares, they were free to sell them. The prosecutor alleges, in effect, that they were also fairly anxious or keen to sell down their holdings of ANZ shares so as to reduce their exposure to the financial risks which would arise or exist as a result of them holding proportionally large numbers of shares in the one corporation. The prosecutor alleges, therefore, that Citigroup, Deutsche Bank and J.P. Morgan were in competition with each other in relation to the sale or supply of ANZ shares to prospective purchasers of such shares on securities exchanges at that time.

The Friday Understanding

63    During the morning of Friday 7 August 2015, there were a number of telephone calls between officers of ANZ and the relevant investment banks. It is unnecessary to detail all those calls. It suffices to note that the prosecution alleges that the Friday Understanding, which included a cartel provision, was made or arrived at during a particular telephone conference call at about 10.00 am that day. The participants in that conference call included: Mr Moscati from ANZ; Mr Ormaechea and Mr Richardson from Deutsche Bank; Messrs Tuchman, McLean and Roberts from Citigroup; and various representatives or officers from J.P. Morgan.

64    The substance or effect of the Friday Understanding was that the investment banks would restrict their trading in ANZ shares so that each would not alter their net holdings of ANZ shares by the end of the trading day. As has already been adverted to, the prosecutor alleges that the Friday Understanding contained a cartel provision in two alternative ways.

65    First, because its purpose was, in summary, to prevent, restrict or limit the supply or sale of ANZ shares by the parties to the arrangement or understanding in circumstances where they competed with each other in respect of the sale of ANZ shares to prospective purchasers on securities exchanges at the time.

66    Second, because its purpose was, in summary, to control or maintain the price for ANZ shares sold to purchasers of those shares on securities exchanges by the parties to the arrangement or understanding in circumstances where they competed with each other in respect of the sale of ANZ shares to prospective purchasers on securities exchanges at the time.

67    In short and simple terms, the substance of the prosecutor’s case would appear to be that the representatives of the investment banks who are alleged to have made or arrived at the Friday Understanding appreciated or believed that, if each of the investment banks began to immediately sell large parcels of the ANZ shares which they had acquired as a consequence of their underwriting of the ANZ share placement, that would flood the relevant securities exchanges with offers to sell ANZ shares. That would in turn most likely drive down the competitive market price for those shares. That would have been in none of the investment banks’ interests. They accordingly reached an arrangement or understanding to limit or restrict the net number of ANZ shares they disposed of on securities exchanges that day so as to avoid or reduce any downward pressure on the share price.

68    The prosecutor’s case is that each of Citigroup, Deutsche Bank and J.P. Morgan, through the conduct and state of mind of their respective representatives who participated in the conference call, made or arrived at the Friday Understanding and intended to make or arrive at the Friday Understanding. The prosecutor also alleges that the intention or purpose of each of the relevant officers or representatives, and through them the intention of Citigroup, Deutsche Bank and J.P. Morgan, was to directly or indirectly restrict or limit the number of ANZ shares they sold or offered for sale to prospective purchasers on the securities exchanges on 7 August 2015 (net of their purchases that day), or to directly or indirectly control or maintain the price for ANZ shares sold by the investment banks on securities exchanges that day. It is alleged that at the time, Citigroup, Deutsche Bank and J.P. Morgan, as the holders of large parcels of ANZ shares that they wanted to sell, were in competition with each other in respect of the sale of ANZ shares to prospective purchasers on securities exchanges.

69    The prosecutor’s case is that, through their participation in the relevant conference call, Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson were knowingly concerned in, or a party to, the contraventions by Citigroup and Deutsche Bank, arising from the investment banks’ having entered into, or arrived at, the Friday Understanding. The prosecutor alleges each of Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson knew the purpose of that arrangement or understanding, as outlined earlier, and knew that the respective investment banks were in competition with each other at that time in relation to the sale of ANZ shares on the securities exchanges.

70    The prosecutor also alleges that ANZ, through the participation of Mr Moscati in the conference call, and Mr Moscati himself, were knowingly concerned in, or a party to, the contraventions by Citigroup and Deutsche Bank. The prosecution case is that Mr Moscati, and through him ANZ, knew the purpose of the Friday Understanding, as outlined earlier, and knew that the investment banks were in competition with each other in relation to the supply of ANZ shares at the time.

71    The prosecutor also alleges that Citigroup and Deutsche Bank gave effect to the cartel provision in the Friday Understanding. The central allegation in that regard is that, in accordance with the Friday Understanding, Citigroup and Deutsche Bank each took steps to ensure that their trading in ANZ shares during the course of 7 August 2015 was such that it did not result in them reducing their net holdings of ANZ shares when the markets closed that day.

72    Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson are also alleged to have been knowingly concerned in the contraventions by Citigroup and Deutsche Bank arising from them giving effect to the cartel provision in the Friday Understanding. The alleged acts or omissions of those individuals that provide the basis for that allegation are detailed in the Notice. In summary, they are alleged to have engaged in conversations which constituted or amounted to instructing others to trade in accordance with the Friday Understanding. The prosecution case is that Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson each knew the purpose and effect of the Friday Understanding and, in acting as they did, intended to give effect to it.

The 5%-7% Understanding

73    The prosecutor’s case in respect of the so-called 5%-7% Understanding is similar to the case in respect of the Friday Understanding. In essence, it is alleged that the 5%-7% Understanding was a further arrangement or understanding reached or arrived at between the investment banks with the same underlying purpose or objective as the Friday Understanding.

74    In the afternoon and early evening of 7 August 2015, there were a series of further communications between officers of ANZ and the relevant investment banks. Shortly after 10.30 am on the following morning, 8 August 2015, there was a telephone conference call, the participants in which included Mr Ormaechea and Mr Richardson from Deutsche Bank, Mr Tuchman and Mr McLean from Citigroup and various officers or representatives of J.P. Morgan. The prosecutor alleges that the 5%-7% Understanding, which included a cartel provision, was made or arrived at during that telephone call.

75    The substance or effect of the 5%-7% Understanding was that, from Monday 10 August 2015, the investment banks would sell no more than 7% of the average daily volume of trade in ANZ shares, with the aim not to exceed 5% of the average daily volume of trade. It was agreed or understood that, if on any given day any of the investment banks sold more than the 7% limit, they would buy ANZ shares so that the net reduction in ANZ shares held by them did not exceed the 7% limit for that day. The prosecutor alleges that the 5%-7% Understanding contained a cartel provision in the same two alternative ways that the Friday Understanding was said to contain a cartel provision. That is, its purpose was either to restrict or limit the number of ANZ shares that the investment banks offered for sale to prospective purchasers during the relevant period, or the purpose of controlling or maintaining the share price for ANZ shares during that period, in each case in circumstances where the investment banks were in competition with each other in respect of the sale of ANZ shares

76    The prosecutor’s case is that each of Citigroup, Deutsche Bank and J.P. Morgan, through the conduct and state of mind of their respective representatives or officers who participated in the conference call, made or arrived at the 5%-7% Understanding and intended to make or arrive at that arrangement or understanding. The prosecutor also alleges that the intention of each of the relevant representatives or officers, and through them the intention of Citigroup, Deutsche Bank and J.P. Morgan, was to directly or indirectly prevent, restrict or limit the number of ANZ shares sold or offered for sale by them to prospective purchasers of ANZ on securities exchanges on each trading day from 10 August 2015, or to directly or indirectly control or maintain the price for ANZ shares sold by the investment banks on securities exchanges on that day.

77    The prosecutor’s case is that, through their participation in the conference call, Messrs Tuchman, McLean, Ormaechea and Richardson were knowingly concerned in, or a party to, the contraventions by Citigroup and Deutsche Bank respectively arising from making or arriving at the 5%-7% Understanding. The prosecutor alleges that each of those individuals knew the purpose of the arrangement or understanding, as outlined earlier, and knew that their respective investment banks were in competition with each other at the time in relation to the supply of ANZ shares.

78    The prosecutor also alleges that Citigroup and Deutsche Bank gave effect to the cartel provision in or comprising the 5%-7% Understanding by their representatives or officers taking steps to ensure that their trading in ANZ shares from about 10 August was within the agreed limits: see [286] of the Notice. Messrs Tuchman, McLean, Ormaechea and Richardson are also alleged to have been knowingly concerned in the contraventions by Citigroup and Deutsche Bank arising from them giving effect to the cartel provision in the 5%-7% Understanding. The alleged acts or omissions of those individuals that provide the basis for that allegation are detailed in the Notice. In summary, they are said to have engaged in conversations which allegedly amounted to encouraging others to implement the terms or effect of the 5%-7% Understanding, as well as monitoring, administering or reporting on the trading of ANZ shares by their respective corporations on the day in question.

79    The prosecutor also alleges that J.P. Morgan gave effect to the 5%-7% Understanding. As noted earlier, J.P. Morgan does not face any charge in that regard, but the prosecutor alleges that ANZ and Mr Moscati aided, abetted, counselled or procured J.P. Morgan to give effect to the relevant arrangement or understanding. The conduct by which Mr Moscati is alleged to have aided, abetted, counselled or procured J.P. Morgan’s contravention is detailed in the Notice. In short, it is alleged that Mr Moscati, and through him ANZ, approved the 5%-7% Understanding and took steps to monitor its implementation by J.P. Morgan by engaging in a number of conversations with representatives or officers of J.P. Morgan concerning J.P. Morgan’s trading in ANZ shares at the time.

The Monday Understanding

80    The Monday Understanding is the third of the arrangements or understandings that the prosecutor alleges were made or arrived at between Citigroup, Deutsche Bank and J.P. Morgan in relation to their sale of the ANZ shares held by them as a result of them underwriting the ANZ share placement. The prosecutor’s case in relation to the making of this arrangement, or the arrival at this understanding, is very similar to the case in relation to the other two arrangements or understandings.

81    The prosecutor alleges that there were further relevant communications between officers of the investment banks on Sunday, 9 August 2015. It is again unnecessary to detail those communications. The critical communications occurred during a telephone conference that commenced at about 9.00 am on the following day, Monday 10 August 2015. The participants in that telephone conference included Mr Tuchman and Mr McLean on behalf of Citigroup, Mr Ormaechea and Mr Richardson from Deutsche Bank and various officers or representatives of J.P. Morgan. The prosecutor alleges that it was agreed or understood between the participants in the conference call that the investment banks would restrict their trading in ANZ shares on that day so that they would not, by the end of the trading day, have reduced their respective net holdings of ANZ shares.

82    The prosecutor’s case is that each of Citigroup, Deutsche Bank and J.P. Morgan, through the conduct and state of mind of their respective representatives or officers who participated in the conference call on 10 August 2015, made or arrived at the Monday Understanding and intended to make or arrive at that arrangement or understanding. The prosecutor also alleges that the intention of each of Messrs Tuchman, McLean, Ormaechea and Richardson, and through them the intention of Citigroup and Deutsche Bank, was to prevent, restrict or limit the restrict or limit the number of ANZ shares they sold or offered for sale to prospective purchasers on securities exchanges on 10 August 2015 (net of their purchases that day), or to directly or indirectly control or maintain the price of ANZ shares sold by the investment banks on securities exchanges that day.

83    The prosecution case is that, through their participation in the conference call, Messrs Tuchman, McLean, Ormaechea and Richardson were knowingly concerned in, or a party to, the contraventions by Citigroup and Deutsche Bank respectively arising from the making or arriving at of the Monday Understanding. The prosecutor alleges that each of those individuals knew the purpose of the arrangement of understanding, as outlined earlier, and knew that their respective investment banks were in competition with each other at the time in relation to the sale of ANZ shares on securities exchanges.

84    The prosecutor also alleges that, relevantly, Citigroup and Deutsche Bank gave effect to the cartel provision in the Monday Understanding. They did so by their officers, employees or representatives taking steps to ensure that the trading in ANZ shares by Citigroup and Deutsche Bank respectively on 10 August 2015 was in accordance with the Monday Understanding. The prosecutor alleges that Citigroup and Deutsche Bank did not reduce their net positions in ANZ shares on 10 August 2015.

85    Messrs Tuchman, McLean, Ormaechea and Richardson are also alleged to have been knowingly concerned in the contraventions by Citigroup and Deutsche Bank arising from them giving effect to the cartel provision in the Monday Understanding. In summary, each of those men are alleged to have engaged in communications and used their positions to ensure that Citigroup, in the case of Mr Tuchman and Mr McLean, and Deutsche Bank, in the case of Mr Ormaechea and Mr Richardson, did not reduce their net holdings of ANZ shares on 10 August 2015.

86    The prosecutor intends to call a number of witnesses at the trial. Those witnesses include a large number of officers or employees of J.P. Morgan, some employees of Citigroup, Deutsche Bank and ANZ, or related entities, and some employees of a securities exchange and the Australian Competition and Consumer Commission. The prosecutor also intends to tender a large number of documents in support of the prosecution case.

INDICTMENTS – RELEVANT PROVISIONS AND PRINCIPLES

87    There was ultimately very little that divided the prosecutor and the accused when it came to the relevant principles. It was the application of those principles to the circumstances of this case that was contentious.

88    Part III div 1A of the FCA Act, which contains the provisions which relate specifically to the Court’s criminal jurisdiction in respect of indictable offences, does not contain any provision which specifies the requirements of an indictment. That is left to r 3.01 of the Rules, subrules (3) to (6) of which provide as follows:

…

(3)    An indictment must state the offence that the accused, or each accused, is alleged to have committed.

 (4)    A statement of an offence is sufficient if the statement:

  (a)    identifies the provision creating the offence; and

(b)    describes the offence in the words of the provision creating the offence or in similar words; and

(c)    describes, concisely and with reasonable particularity, the nature of the alleged offence.

(5)    An indictment need not deal with any exception, exemption, excuse, qualification or justification provided by the law creating the offence.

(6)    If an indictment describes any person or thing, the description is sufficient if it describes the person or thing in a manner that indicates with reasonable clarity the person or thing.

89    Subject to some minor qualifications or exceptions which are discussed in more detail later, the indictment complies with the requirements of r 3.01(4)(a) and (b): each count identifies the provision creating the offence and describes the offence in the words of that provision or in similar words. The critical issue is whether each count in the indictment describes the nature of the alleged offence the subject of the count “concisely and with reasonable particularity” as required by r 3.01(4)(c) of the Rules.

90    The requirement of “reasonable particularity” must be considered in the context of the common law principles concerning the content of indictments. Indeed, it is tolerably clear that the expression “reasonable particularity” in r 3.01(4)(c) of the Rules was picked up from the judgment of Lord Alverstone CJ (with whom Wills and Channell JJ agreed) in Smith v Moody [1903] 1 KB 56 in which his Lordship referred (at 60) to the “old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given in indictments and convictions”.

91    The following key principles may be derived from the authorities in relation to the requirement that an indictment identify the relevant offence with reasonable particularity.

92    First, the requirement of reasonable particularity must be considered having regard to the central importance of an indictment in any criminal proceeding. The presentment or filing of an indictment not only initiates a criminal proceeding, it also performs the following functions: “informing the court of the precise identity of the offence with which it is required to deal”; “providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients” of the actual offence; “enabling the court to ensure that only relevant evidence is admitted”; enabling the court to “properly instruct the jury on the relevant law”; “determining the availability of a plea of autrefois acquit and autrefois convict”; and “invest[ing] the trial court with jurisdiction to hear and determine the prosecution”: R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 at [52]-[53] (Spigelman CJ) referring to John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519; S v The Queen (1989) 168 CLR 266 at 284-285; Walsh v Tattersall (1996) 188 CLR 77 at 90, 110-111; see also Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 at [397].

93    Second, in considering arguments about want of particularity in criminal charges, the context in which the arguments are raised may be of importance and certain distinctions must be borne in mind: Stanton v Abernathy (1990) 19 NSWLR 656 at 666. They include: the “difference between what is necessary for an indictment, and what is sufficient in the form of an information may be important” and that “authorities dealing with the adequacy of informations which give rise to summary convictions are not necessarily a safe guide to the position in relation to informations which found committal proceedings”: Stanton at 666 (Gleeson CJ). Many of the leading authorities in relation to the requirement of particularity in criminal charges concern informations, summonses or complaints in summary criminal proceedings. It is also necessary to bear in mind the different statutory provisions and procedural rules that may apply in summary criminal proceedings and trials on indictment. It is particularly important to note, in this context, that the FCA Act contains a detailed disclosure regime in relation to indictable matters, including a requirement in s 23CE(a) that the prosecutor file and serve a notice which “sets out the facts, matters and circumstances on which the prosecution’s case is based.”

94    Third, the “courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law rule [of reasonable particularity] has been infringed”: Stanton at 666; see also De Romanis v Sibraa [1977] 2 NSWLR 264 at 291 (Mahoney JA). That is no doubt because no single test could sensibly be applied to all cases. The question whether a statement of charge in an indictment contains sufficient particulars should be approached not by employing some verbal formula, but by having regard to the nature of the offence in question and the particular facts and circumstances of the case.

95    Reference has already been made to the formula employed in Smith v Moody. In Johnson v Miller (1937) 59 CLR 467, a case concerning latent ambiguity or duplicity in a summary prosecution, Dixon J referred (at 486) to the “necessity of specifying the time, place and manner of the defendant’s acts or omissions” and (at 489) the need for a defendant to be “apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”: see Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [26]. In John L, another case involving a summary prosecution, it was said (at 520) that “an information must at the least condescend to identifying the essential factual ingredients of the actual offence” (Mason CJ, Deane and Dawson JJ); see also Kirk at [26]. In Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121, Spigelman CJ referred (at [82]) to the need for an indictment to identify “each essential factual element”.

96    Fourth, the requirement of reasonable particularity in an indictment does not require that the indictment contain all of the facts or information that an accused person may require for the preparation of a defence and which may be required to be supplied by the prosecutor upon an application for further particulars of the offence: De Romanis at 291-292; John L at 520; Stanton at 666; Kirk at [26]. That is a particularly important point in this case. As has already been noted, the prosecutor has filed and served a disclosure notice which, as required by s 23CE(a) of the FCA Act, includes an outline of the prosecution case and sets out the facts, matters and circumstances on which the prosecution case is based. While the accused, or some of them, have foreshadowed an argument concerning the sufficiency of that outline, it suffices at this stage to note that it includes detailed particulars of the legal and factual basis of the prosecution case. The answers to virtually all of the complaints by the accused concerning the absence of particularity in the indictment are contained in the Notice. The real question for consideration and determination is whether some of the particulars that are supplied in the Notice must be included in, or incorporated into, the indictment.

IS THE INDICTMENT DEFECTIVE?

97    The principal argument mounted by each of the accused was that the indictment does not contain particulars of the essential factual ingredients of the relevant offences. It therefore does not, so it was submitted, describe the nature of the alleged offences with “reasonable particularity” as required by r 3.01(4)(c) of the Rules. Each of the charges in the indictment was said to be deficient in that regard.

98    Each of the accused made separate submissions in support of the proposition that the indictment was defective, though their submissions overlapped and they each relied on each other’s submissions in any event. The submissions will accordingly for the most part be addressed collectively in this judgment. The submissions also tended to be expressed in a general or global way, rather than by reference to specific charges. It is, however, preferable to address each charge individually and separately, though obviously findings made in relation to alleged defects in relation to one charge will apply equally to other charges which contain the same alleged defect.

99    Before addressing the alleged deficiencies in respect of each of the charges, some general observations should be made concerning the structure of the indictment.

The indictment generally

100    To recapitulate briefly, the prosecution case is that there were three arrangements or understandings between Citigroup, Deutsche Bank and J.P. Morgan. They have, for convenience, been referred to in these reasons (and in the Notice) as the Friday Understanding, the 5%-7% Understanding and the Monday Understanding, though they are not referred to as such in the indictment. Each of those three arrangements or understandings is alleged to contain or comprise a cartel provision. There are two alternative formulations of the alleged cartel provision: the first relating to restricting or limiting the supply of ANZ shares and the second relating to controlling or maintaining the price of ANZ shares.

101    Citigroup and Deutsche Bank are each charged with making, or arriving at, each of the three arrangements or understandings. They are also charged with giving effect to the cartel provisions in or comprised by each of the arrangements or understandings. Citigroup and Deutsche Bank therefore face a total of six charges, though there are alternative counts in respect of each of those six charges based on the alternative formulation of the cartel provisions.

102    The individual accused other than Mr Roberts and Mr Moscati are charged with being knowingly concerned in, or a party to, each of the offences allegedly committed by Citigroup (in the case of Mr Tuchman and Mr McLean) and Deutsche Bank (in the case of Mr Ormaechea and Mr Richardson). They therefore also face a total of six charges, together with alternative counts in respect of each of those six charges.

103    Mr Roberts is only charged with being knowingly concerned in, or a party to, the offences committed by Citigroup in respect of the Friday Understanding. He thus faces two charges, together with alternative counts in respect of both charges.

104    Mr Moscati and ANZ have also been charged with offences of being knowingly concerned in, or a party to, the contraventions by Citigroup, Deutsche Bank and J.P. Morgan relating to the Friday Understanding (both the offences of making or arriving at that arrangement or understanding and giving effect to the cartel provision in it) and one charge of aiding, abetting, counselling or procuring an offence by J.P. Morgan of giving effect to the cartel provision in the 5%-7% Understanding. Thus ANZ and Mr Moscati are charged with three offences, together with an alternative count in relation to each of those offences.

105    The indictment is broadly structured as follows.

106    Charges 1 to 8 all relate to the Friday Understanding. Particulars of that arrangement or understanding – the Friday Understanding particulars – are included in the indictment after charge 8.

107    Charges 9 to 15 all relate to the 5%-7% Understanding. Particulars of that arrangement or understanding – the 5%-7% Understanding particulars – are included in the indictment after charge 15.

108    Charges 16 to 21 all relate to the Monday Understanding. Particulars of that arrangement or understanding – the Monday Understanding particulars – are included in the indictment after charge 21.

109    Particulars of the cartel provision in each of the three arrangements or understandings which are the subject of charges 1 to 21 – the cartel provision (supply) particulars – are included in the indictment after charge 21.

110    Charges 22 to 42 are the alternative counts. They are arranged in essentially the same way: charges 22 to 29 relate to the Friday Understanding, particulars of which are provided after charge 29; charges 30 to 36 relate to the 5%-7% Understanding, particulars of which are provided after charge 36; and charges 37 to 42 all relate to the Monday Understanding, particulars of which are provided after charge 42. The alternative particulars of the cartel provision the subject of charges 22 to 42 – the cartel provision (price) particulars – are provided after charge 42.

111    The accused did not raise any specific complaint about the structure of the indictment, or the manner in which the particulars of the three arrangements or understandings, and the cartel provisions in them, are included in the indictment. In my view, however, the clarity and intelligibility of the indictment would be considerably improved if the relevant particulars in respect of each charge – the particulars of the relevant arrangement or understanding and the particulars of the applicable cartel provision – are included immediately after the charge. For example, charge 1, which is a charge against both Citigroup and Deutsche Bank in respect of the making of, or arriving at, the Friday Understanding, would have particulars of the Friday Understanding and the cartel provision (supply) particulars appearing immediately after or under the statement of charge. The alternative count in respect of that charge, charge 22, would have particulars of the Friday Understanding and the cartel provision (price) particulars appearing immediately under it. As presently structured, the particulars of the arrangement or understanding relevant to the first charge appear for the first time after charge 8 and the particulars of the applicable cartel provision appear only after charge 21.

112    It is, in my view, somewhat confusing to provide particulars relating to the relevant arrangements or understandings only after the group of charges to which those particulars are said to relate. It is similarly somewhat confusing to provide particulars of the cartel provisions after charges 21 and 42 respectively. It would be preferable for each charge to include all necessary particulars of that charge, including the particulars of the arrangement or understanding and cartel provision referable to that charge, immediately after the statement of the charge.

113    My view that the particulars to each charge should be provided immediately after each statement of the charge, and not included after groups of charges as they presently are, is fortified by the fact that, for the reasons given in detail later, the statements of the charges in the indictment should in virtually every case include further factual particulars in any event. It may be that the prosecutor would prefer to include those additional particulars after the charges, under a subheading, rather than within the charge itself. That is often the clearest way to include particulars in an indictment, especially where, as here, the charge is of some considerable complexity in any event. That is no doubt why the particulars of the arrangements or understandings are included that way in the current indictment.

114    It would in my view be confusing for the charges to include some particulars in a subheading after the statement of charge. For example, particulars of the substance of the factual allegations in respect of the “make” or “gave effect to” ingredients of the charges – but for the particulars of the relevant arrangements or understandings, or the relevant cartel provisions, only to be provided after the groups of charges to which those particulars relate. It may be accepted that structuring the indictment in this way would result in a degree of repetition. The indictment itself would also be considerably longer. That, however, is preferable to an indictment that lacks clarity or is structured in a potentially confusing or unhelpful way. That is particularly the case given the length and undoubted complexity of the indictment in any event as a result of the number of charges, the number of accused and the complexity of the offences themselves.

115    It may also turn out to be the case that some uncontentious abbreviations could be fairly employed so as to avoid excessive repetition. For example, as already noted, the Notice currently describes the three alleged arrangements or understandings by using abbreviations: the Friday Understanding, the 5%-7% Understanding and the Monday Understanding. The use of those, or similar, abbreviations in the particulars in the indictment itself may not necessarily be unfair or objectionable. If abbreviations like “Friday Understanding particulars” are able to be used, full particulars of the Friday Understanding could be included after charge 1 and charges 2 to 8 could then simply refer to the Friday Understanding particulars. The use of abbreviations was not addressed in the context of this application. The prosecutor should consider discussing the possible use of uncontentious abbreviations in the indictment with the legal representatives of the accused to see whether a common position can be arrived at. It should perhaps be noted, however, that excessive use of abbreviations and acronyms can sometimes be confusing and distracting.

116    Many of the arguments advanced by the accused concerned the sufficiency of the particulars of the alleged cartel provisions. It is appropriate, in those circumstances, to first address the sufficiency of those particulars, as well as the particulars of the alleged arrangements or understandings.

Sufficiency of the particulars of the alleged arrangements or understandings

117    As discussed earlier, the indictment that was initially filed by the prosecutor did not contain any particulars of the three alleged arrangements or understandings. Many of the complaints made by the accused about the original indictment concerned the absence of any particulars of the arrangements or understandings. Those complaints were largely well founded and were, it appears, accepted as such by the prosecutor. The deficiencies caused by the absence of such particulars were remedied by the filing of the new indictment.

118    The new indictment contains particulars of the substance or effect of the Friday Understanding (relevant to charges 1 to 8 and 22 to 29), the 5%-7% Understanding (relevant to charges 9 to 15 and 30 to 36) and the Monday Understanding (relevant to charges 16 to 21 and 37 to 42), though, as has already been noted, the particulars themselves do not employ the shorthand labels or abbreviations that have been given to the arrangements both in the Notice and in these reasons.

119    The accused did not appear to contend that the particulars of the three alleged arrangements or understandings were inadequate or insufficient, or at least did not advance any substantive arguments in that regard. The only real complaint appeared to be that the particulars of the Friday Understanding should include some further explanation about what is meant by the expression “restrict its trading”. The same complaint presumably applies to the particulars of the Monday Understanding. The particulars of the 5%-7% Understanding use the expression “limit its trading”. There was no specific complaint about the use of that expression.

120    The contention that the particulars of the arrangements or understandings are deficient because they are insufficient to enable the accused or the Court to understand what is meant by “restrict its trading” or “limit its trading” is rejected. The particulars of the Friday Understanding, read fairly, sufficiently explain what is meant by “restrict its trading”. The particulars explain that the arrangement or understanding between the investment banks was that their trading would be restricted “so each Investment Bank would not, by the end of the trading day, reduce the net number of ANZ Shares it held”. The word “restrict” is an ordinary English word which requires no further elaboration in this context, particularly given that these are particulars of what was arranged or understood between the investment banks, not particulars of the mechanics of how they would go about restricting their trading. The same can be said regarding the use of the expression “restrict its trading” in the particulars of the Monday Understanding and the use of the expression “limit its trading” in the context of the 5%-7% Understanding.

121    It should also be added that the Notice provides more detailed particulars concerning the genesis and terms of the arrangements or understandings. It is, in all the circumstances, difficult to accept the contention that the accused genuinely do not understand what is meant by “restrict its trading” in the context of the alleged arrangements or understandings. In any event, for the reasons just given, the use of that expression in the particulars in the indictment does not mean that the indictment is defective or deficient.

122    It should also perhaps be noted, in this context, that it is not entirely clear why the prosecutor has chosen to use the expression “restrict its trading” in the particulars of the Friday Understanding and the Monday Understanding, but used the expression “limit its trading” in the particulars of the 5%-7% Understanding. It is also difficult to understand why, having used those expressions in the particulars of the arrangements or understandings, the cartel provision (supply) particulars suggest that the purpose of the arrangements or understandings was “preventing, restricting or limiting” the supply of ANZ shares. That issue is discussed further in the context of the consideration of the adequacy of the cartel provision (supply) particulars.

123    Any other contentions or submissions by the accused that touched on the adequacy of the particulars of the alleged arrangements or understandings, such as the particulars of the date and time on which they were made or arrived at, are dealt with later in the context of the individual charges.

124    There are, in all the circumstances, no relevant defects or deficiencies in the particulars of the arrangements or understandings which are included in the indictment.

Sufficiency of the particulars of the alleged cartel provisions

125    The same cannot necessarily be said concerning the particulars of the cartel provisions.

126    As has already been noted, there are two sets of particulars in relation to the alleged cartel provisions. They are extracted in full earlier in these reasons.

127    The first set of particulars, the cartel provision (supply) particulars, apply to charges 1 to 21. Those particulars are that the arrangements or understandings “satisfied the purpose condition” in s 44ZZRD(3)(a)(iii) of the C&C Act, which is that the provision “has the purpose of directly or indirectly preventing, restricting or limiting the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding”. The particulars essentially repeat or employ the words used in s 44ZZRD(3)(a)(iii) other than that the words “Australia and New Zealand Banking Group Limited shares” are used instead of the words “goods or services”, and the word “contract” is excluded. For convenience, this element of the particulars will be referred to as the “supply of shares purpose” (being the terminology employed in the Notice).

128    The second set of particulars, the cartel provision (price) particulars, apply to the alternative charges, charges 22 to 42. Those particulars are that the arrangements or understandings “satisfied the purpose condition” in s 44ZZRD(2)(a) of the C&C Act, which (read with s 44ZZRD(2)(c)) is that the provision “has the purpose, or has or is likely to have the effect, of directly or indirectly fixing, controlling or maintaining the price for … goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding”. The particulars essentially repeat or employ the wording of s 44ZZRD(2)(a) and (c) other than that the words “Australia and New Zealand Banking Group Limited shares” are used instead of the words “goods or services”, and the word “contract” is excluded. This element of the particulars will be referred to as the “price of shares purpose”, again reflecting the terminology employed in the Notice.

129    Both sets of particulars allege that the cartel provision also satisfied the “competition condition” in s 44ZZRD(4) of the C&C Act. Relevantly, s 44ZZRD(4)(a),(b) and (c) provides as follows:

(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) or (3)(b) applies in relation to a supply, or likely supply, of goods or services—the supply of those goods or services …

130    The relevant particulars of the cartel provisions again essentially repeat or employ the wording of s 44ZZRD(4)(a), (b) and (c) of the C&C Act, other than that the words “Australia and New Zealand Banking Group Limited shares” are used instead of the words “goods or services”. This element of the particulars will be referred to as the “competition condition”.

Alleged deficiencies in the particulars of the cartel provisions

131    The accused contended that both sets of particulars of the cartel provisions were defective. The essence of the complaint was that the particulars did little more than parrot the wording of the relevant statutory provisions. That was said to be inadequate in a number of material respects.

132    First, the accused noted that the cartel provision (supply) particulars do not identify the “persons or classes of persons” to whom the supply or likely supply of ANZ shares was intended to be prevented, restricted or limited. That was said to be an essential factual ingredient of the alleged cartel provision.

133    Second, it was submitted that the cartel provision (supply) particulars should not simply use the entire phrase or expression “preventing, restricting or limiting” which is used in the statute, but should elect which of those different concepts is actually alleged by the prosecutor to apply to the particular circumstances of the case. More significantly, it was submitted that the cartel provision (supply) particulars should identify the essential factual allegation concerning the supply of shares purpose, rather than simply repeating the terms of the relevant statutory provision. It was noted, in that regard, that it is difficult to see how, given the particulars supplied in the Notice, the alleged purpose could be said to be “preventing” the sale of ANZ shares. The use of the word “limiting” was also said to be unclear in the absence of further particularisation.

134    Third, the accused contended that the cartel provision (price) particulars should also not simply employ the phrase or expression “controlling or maintaining” which is used in the statute, but rather should elect between those two concepts. More significantly, it was submitted that the particulars should include the essential factual allegation concerning the price of shares purpose, including the actual and hypothetical share prices that would otherwise have been obtained, rather than simply repeating the terms of the relevant statutory provision.

135    Fourth, it was contended that further and better particulars of the competition condition were required. It was submitted that there needed to be some articulation or particularisation of the essential basis upon which it is alleged that the relevant investment banks were in competition with each other in relation to the supply of ANZ shares, including the timeframe during which that competition was said to exist, rather than just employing the words of the statute.

136    Fifth, it was submitted that the cartel provision particulars fail to identify whether the ANZ shares which were the subject of the alleged arrangement and understanding and cartel provision were goods or services.

137    Sixth, it was contended that the cartel provision particulars do not identify all of the relevant statutory provisions which create the offence as required by r 3.01(4)(a) of the Rules. In particular, it was submitted that the particulars were required to identify which specific paragraphs s 44ZZRD(2) of the C&C Act are relied upon in relation to the purpose/effect condition and which of specific paragraphs of s 44ZZRD(4) are relied upon in relation to the competition condition.

Findings

138    There is merit in most, if not all, of the complaints by the accused about the particulars of the cartel provisions.

139    The particulars of the cartel provisions are of central importance to all of the charges in the indictment. The prosecutor should be required to identify, in the indictment, the essential factual ingredients or elements of the alleged cartel provisions beyond simply employing the words of the relevant statutory provisions. The only actual particular provided in the particulars of the cartel provisions is that the provision related to the supply or price of ANZ shares. That is not a sufficient articulation of the essential factual basis upon which it is contended that the relevant provisions of the arrangements or understandings were cartel provisions.

140    Before addressing that issue, however, it should be observed that the cartel provision particulars do not, in any event, use all of the words employed in the relevant subparagraphs of the definition of “cartel provision” in s 44ZZRD of the C&C Act. That is because the cartel provision particulars do not use the words “goods” or “services”, despite the fact that a provision in an arrangement or understanding cannot be a cartel provision unless it somehow relates to either goods or services.

141    The short point is that, as the accused contended, the prosecutor should be obliged to indicate in the indictment whether ANZ shares are said to be goods or services for the purposes of s 44ZZRD of the C&C Act. It is clear from the Notice that the prosecutor alleges that they are services as that expression is defined in the C&C Act: see [39], [53], [100] of the Notice. That is perhaps not surprising given that it is difficult to see how shares could be said to be “goods” under the definition (albeit an inclusive definition) of goods in s 4 of the C&C Act. If the prosecution case is that ANZ shares are “services” for the purposes of s 44ZZRD, the particulars should say so.

142    It is perhaps not too difficult to see why the prosecutor would prefer not to refer in the particulars to the fact that ANZ shares are, or are said to be, services. That is no doubt because, even if shares do fall within the wide, non-exhaustive definition of services in s 4 of the C&C Act, most people would not, at least at first blush, think that shares would fall within the ordinary meaning of services: see Norcast S.ár.L v Bradken Limited (No 2) (2013) 219 FCR 14; [2013] FCA 235 at [240] where Gordon J nonetheless held that shares were ‘services’ for the purposes of s 44ZZRD(3)(c) of the C&C Act. Be that as it may, in my view the particulars of the cartel provisions should identify that the prosecution case is that the relevant ANZ shares were services for the purposes of the C&C Act. That can be easily done. A possible formulation of the particulars is provided later.

143    The complaint that the cartel provision (supply) particulars do not identify the relevant “persons or classes of persons” also has merit. It is fairly clear from the Notice what the prosecution case is in that regard. The Notice suggests that the prosecution case is that the “persons or class of persons” for the purposes of the cartel provision (supply) particulars are “prospective purchasers” of ANZ shares, or “persons looking to purchase ANZ shares” at the times in question: see [88.4], [94], [178], [234] and [235] of the Notice. The question is whether that element of the prosecution case should be included in the cartel provision (supply) particulars in the indictment.

144    In my view it should. The identity of the relevant persons or classes of persons to whom the three investment banks would otherwise sell ANZ shares is an essential factual ingredient of the relevant particulars of the cartel provision and is therefore an essential factual ingredient of the offences in question. Those additional particulars could also readily be included in the cartel provision (supply) particulars.

145    The question whether further particularisation of the supply of shares purpose and the price of shares purpose is required in the indictment is a bit more difficult. On balance, however, I am persuaded that those elements of the cartel provision particulars are currently inadequate or deficient. The particulars should provide some detail concerning the factual basis of the allegations beyond the mere repetition of the words used in the statute. That is not to say that the particulars of the respective cartel provisions included in the indictment should provide the level of detail that is included in the Notice. The particulars in the indictment should, however, include a short summary of the substance of the prosecution case in relation to this key element or ingredient of the offence. Given the contents of the Notice, it is unclear why the prosecutor is unwilling or reluctant to identify the essence of the prosecution case in respect of the cartel provisions.

146    In relation to the supply of shares purpose, it would appear from the Notice that the prosecution case is that the purpose of each of the alleged arrangements or understandings was to directly or indirectly restrict or limit the net number of ANZ shares that each of the relevant three investment banks would sell or offer for sale to prospective purchasers of ANZ shares on the relevant securities exchanges on the days or during the period in question: see for example [94], [95], [178] and [235] of the Notice. If, as would appear to be the case, that is the prosecutor’s case, those basic particulars, or particulars of that kind, should be included in the cartel provision (supply) particulars which are included in the indictment.

147    It should perhaps be noted in this context that in my view it is open to the prosecutor to allege that the arrangements or understandings had a purpose of either “restricting” or “limiting” the supply or likely supply of ANZ shares. Those words or concepts are distinct but fairly closely related. It is open to the prosecutor to allege that the purpose of the provisions can be characterised as either one or the other. It is, however, not entirely clear why the present cartel provision (supply) particulars also includes “preventing” the supply of ANZ shares as an alternative purpose of the arrangements or understandings.

148    As noted earlier, the particulars of the Friday Understanding and the Monday Understanding are that the alleged arrangements or understandings were to the effect that the investment banks would “restrict” their trading in ANZ shares, whereas the particulars of the 5%-7% Understanding are that that arrangement or understanding was to the effect that the investment banks would “limit” their trading. There is no indication in the particulars of any of the arrangements or understandings that the relevant arrangement or understanding between the investment banks was that they would “prevent” themselves or each other from trading in ANZ shares in some way. Moreover, nowhere in the Notice is it suggested that the purpose of any of the arrangements or understandings was to somehow prevent the investment banks from selling or supplying ANZ shares.

149    It would appear that the prosecutor has included “preventing” in the cartel provision (supply) particulars simply because that word is used in s 44ZZRD(3)(a)(iii) of the C&C Act, that being the provision relied upon by the prosecutor in terms of satisfying the “purpose condition” element of the definition of “cartel provision”. It does not, however, appear that the prosecutor in fact alleges that the arrangements or understandings had the purpose of preventing the supply or likely supply of ANZ shares. Where an offence provision includes a number of different or alternative ways in which the offence may be committed, the prosecutor should generally refrain from including all of the alternatives in the particulars of the charge just because they are included in the offence provision itself. Only those alternatives that accurately reflect the prosecution case should be included. The inclusion of all of the alternatives often unnecessarily overcomplicates the prosecution case.

150    While it is not for the Court to compel a prosecutor to particularise charges in a particular way, or to assist the prosecutor in the drafting of the charges, following is a suggested form of wording for the supply of shares purpose relevant to the Friday Understanding:

(1)    had the purpose of, directly or indirectly, restricting or limiting the supply, or likely supply, of services to persons or classes of persons by any or all of the parties to the arrangement or understanding, within the meaning of s 44ZZRD(3)(a)(iii) of the Competition and Consumer Act 2010 (Cth), because the purpose of the arrangement or understanding was to directly or indirectly restrict or limit the net number of ANZ shares that Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited would sell or offer for sale to prospective purchasers of ANZ shares on securities exchanges on 7 August 2015.

151    Similar particulars can and should be formulated in respect of the cartel provisions in the 5%-7% Understanding and the Monday Understanding.

152    The prosecutor is not bound to accept the precise wording of these example or suggested particulars. They are, however, essentially drawn from the terms of the Notice. They also remedy the deficiencies in the existing particulars that have been identified by the accused. Amongst other things, they: identify the relevant classes of persons; provide the essence of the prosecution case in relation to the supply of shares purpose; fairly identify that ANZ shares are said to be services; and identify all of the relevant paragraphs of the cartel provision definition in the C&C Act. They also illustrate what is relevantly required to meet the requirement of reasonable particularity in respect of what is a central factual ingredient of the offences in question. Of course, the question whether the prosecutor is ultimately able to establish or demonstrate that the alleged arrangements or understandings as particularised contained or comprised a provision that falls within s 44ZZRD(3)(a)(iii) of the C&C Act is another matter altogether.

153    In relation to the price of shares purpose, it is clear from the Notice that the prosecution case is that the underlying purpose of each of the arrangements or understandings was to avoid the likely fall in the price of ANZ shares on securities exchanges that would occur, or was considered likely to occur, if the investment banks did not restrict or limit their trading in ANZ shares on the days or period in question. It is on that basis that it is alleged that the purpose of the alleged arrangements or understandings was to control or maintain the price of ANZ shares: see for example [95], [179], [180], [236], [237] of the Notice. The particulars of the price of shares purpose in the indictment should articulate that factual ingredient of the prosecution case beyond simply referring to the words of the statute. It is not enough to effectively recite the terms of the relevant provision in the statute: Baiada Poultry v Victorian WorkCover Authority (2015) 257 IR 204; [2015] VSCA 344 at [49]-[50]; see also Kirk at [25]-[26], [29] and Lodhi at [98]-[101].

154    I do not, however, accept that the particulars cannot refer to both “controlling” and “maintaining” in the particulars. It is in my view open to the prosecutor to allege that the purpose of the accused can be correctly characterised as either controlling or maintaining the price of ANZ shares. The distinction between those two concepts can be subtle but important and careful directions concerning their meaning will no doubt need to be given to the jury at an appropriate time. It does not, however, follow that the prosecution cannot allege that the purpose was either one or the other of those concepts.

155    I also do not accept that the particulars of the cartel provision included in the indictment have to include the level of detail contended by the accused, including detail about the trading price for ANZ shares on the relevant securities exchanges and the price that it is alleged the shares would have traded at but for the arrangements or understandings. If that level of detail is required, which remains to be seen, it would be required to be provided in the Notice, not in the particulars in the indictment.

156    It would again not be difficult for the particulars included in the indictment to properly identify the essential factual ingredient of the alleged price of shares purpose. Following is an illustration of the sort of particulars (relevant to the Friday Understanding) that would meet the requirement of reasonable particularity in respect of this element of the offences:

(1)    had the purpose of, directly or indirectly, controlling or maintaining the price for services supplied, or likely to be supplied, by any or all of the parties to the arrangement or understanding, within the meaning of s 44ZZRD(2)(a) and (c) of the Competition and Consumer Act 2010 (Cth), because the purpose of the arrangement or understanding was to prevent the fall in the price of ANZ shares on securities exchanges that was likely to occur, or was considered likely to occur, if Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited did not restrict or limit their trading in ANZ shares on securities exchanges on 7 August 2015.

157    Again, the prosecutor is not bound to accept this formulation of the relevant particulars. They have essentially been drawn from the particulars in the Notice and are provided only by way of example or illustration of the level of detail of the particulars that should be included in the indictment.

158    The current particulars of the competition condition are similarly deficient. It would seem tolerably clear from the Notice that the prosecution case is that the relevant investment banks were in competition with each other in relation to the supply of ANZ shares because they each held or would in due course hold large parcels of ANZ shares as a result of their underwriting obligations and they each wanted to reduce their holdings of those shares to avoid the risks associated with holding large parcels of shares in the one company: see for example [35], [53], [183] and [240] of the Notice. The prosecution case would appear to be that the investment banks were in competition with each other in relation to the supply of ANZ shares because they each intended to sell their holdings or anticipated holdings in ANZ shares to prospective purchasers of such shares on the relevant securities exchanges. If that is the case, the particulars should say that, rather than just repeat the words of the relevant statutory provision.

159    Because the current particulars of the competition condition simply repeat or recite the terms of s 44ZZRD(4)(a), (b) and (c) of the C&C Act, the particulars effectively include all of the alternative ways of satisfying the competition condition which are included in that provision. In particular, they effectively include the allegation that the investment banks were or were likely to be in competition with each other and the alternative allegation that, but for the alleged arrangements or understandings, they would or would likely to have been in competition with each other. It is, however, difficult to see from the Notice how the prosecution case could genuinely or accurately be seen as including the latter allegation. The prosecution case would appear to be that the investment banks were, or were likely to be, in competition with each other. There is no real indication in the Notice that the prosecution case is that the effect or likely effect of the alleged arrangements or understandings was that the investment banks no longer competed with each other in relation to ANZ shares at all. While there may be cases where it would be open to the prosecutor to allege both alternatives, this does not appear to be such a case. If that is so, the prosecutor’s particulars of the competition condition should not include the latter alternative.

160    Having regard to the terms of the Notice, the competition particulars could be worded as follows in the case of the cartel provision (supply) particulars:

(2)    at least 2 of the parties to the arrangement or understanding were, or were likely to be, in competition with each other in relation to the supply of services, within the meaning of s 44ZZRD(4)(a) and (h) of the Competition and Consumer Act 2010 (Cth), because two or more of Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited, were, or were likely to be, in competition with each other in relation to the sale of ANZ shares which they held, or were likely to hold at the time, to prospective purchasers of ANZ shares on securities exchanges.

161    It should again be noted that the prosecutor is not obliged to adopt the precise wording of these example particulars. They are merely illustrative of the degree of detail required. They are, however, again essentially based on the content of the Notice. It should also be noted that the example particulars identify the relevant paragraphs of s 44ZZRD(4) of the C&C Act that would appear to be applicable to the cartel provision (supply) particulars, namely s 44ZZRD(4)(a) and (h). As the accused contended, those paragraphs are not identified in the existing particulars. While that is a rather trivial point, it can be easily remedied. It would appear that the paragraphs of s 44ZZRD(4) that are relevant in the case of the cartel provision (price) particulars are paragraphs (a) and (c).

162    The particulars of the cartel provisions are central to each of the charges. The inclusion of a short statement of the essential factual basis of the allegation that the alleged arrangements or understandings contained or comprised cartel provisions could only add to the clarity of the indictment. While it may be accepted that the inclusion of further particulars concerning the cartel provisions will mean that the indictment is lengthier, the particular circumstances of this case dictate that the interests of clarity outweigh the desirability or objective of brevity.

163    Having dealt with the particulars of the alleged arrangements and understandings, and the particulars of the alleged cartel provisions, it is possible to address the contentions by the accused that the indictment does not otherwise contain sufficient particulars of the individual charges. As was noted earlier, the submissions advanced by the accused did not address the charges individually, but rather addressed the alleged deficiencies in general or global terms. Some individual charges were referred to by way of example. It is, however, preferable to address the charges individually. If, however, a deficiency which applies to all the charges is identified, for example the failure to particularise the requisite fault element, it may be taken that that deficiency applies to all the charges without necessarily saying so.

Charge 1: Contravention of s 44ZZRF(1) by Citigroup and Deutsche Bank in respect of the Friday Understanding

164    Charge 1 in the indictment is in the following terms:

The Prosecutor charges that on about 7 August 2015 at Sydney in the State of New South Wales and elsewhere, CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED and DEUTSCHE BANK AKTIENGESELLSCHAFT made an arrangement or arrived at an understanding with each other and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, that contained a cartel provision, knowing or believing that the arrangement or understanding contained a cartel provision.

165    The particulars of the arrangement or understanding that is the subject of this charge are the Friday Understanding particulars, which are currently included in the indictment after charge 8. The particulars of the cartel provision applicable to this charge, the cartel provision (supply) particulars, are currently included in the indictment after charge 21.

Alleged deficiencies in the pleading of charge 1

166    The accused raised the following complaints or objections to the pleading of this charge.

167    First, it was contended that the charge does not identify the date on which the offence was allegedly committed with sufficient particularity. That was said to be primarily a product of the fact that the charge alleges that the relevant conduct occurred on “about” 7 August 2015. A similar complaint was made in relation to every charge. In relation to charge 1, however, the accused went so far as to contend that the particulars were deficient because they did not identify the precise time of day when the arrangement or understanding was allegedly made or arrived at. Similar submissions were made in relation to charges 9 and 16. The accused submitted that the imprecision in the particulars of the dates on which the alleged offences were committed meant that the dates of some of the charges overlapped.

168    Second, the accused submitted that particulars of the place at which the offence was committed were deficient because those particulars included the words “and elsewhere”.

169    Third, it was submitted that the charge does not sufficiently identify how the arrangement was made or the understanding was arrived at. The argument was that a corporation can only make an arrangement or arrive at an understanding through or by the conduct of its officers, employees or representatives. It is therefore necessary for the charge to identify the officers, employees or representatives who are alleged to have made the alleged arrangement, or arrived at the alleged understanding, on behalf of Citigroup and Deutsche Bank respectively. It is, it was submitted, also necessary to include some particulars of the conduct that those representatives or officers engaged in to make the arrangement, or arrive at the understanding, as well as some particulars of the state of mind of those individuals at the time they engaged in that conduct.

170    Fourth, the accused contended that the statement of charge was in any event defective because it does not plead the fault element of intention.

171    The prosecutor submitted that the particulars of the date on which the offence was allegedly committed were adequate and that there is no principle that requires a prosecutor to identify the precise time or date of the offence. The prosecutor also claimed that it was common for indictments to include some degree of imprecision when it comes to particularising the date on which an offence was committed. As for the temporal overlap between some of the charges in the indictment, the prosecutor maintained that the overlap simply reflected the nature of the conduct alleged to support the charges.

172    As for the complaints concerning the inadequacy of the particulars of the conduct that allegedly gave rise to the Friday Understanding, the prosecutor maintained that the offence or charge was adequately particularised. The prosecutor submitted that the indictment was not required to identify the evidentiary basis for the charges, or to identify the precise acts or omissions of the individuals whose conduct was to be attributed to the corporations. That would amount to requiring the prosecutor to particularise how the charge was to be proved or made out. This mantra was repeated in response to most of the complaints by the accused in relation to inadequate particulars. The prosecutor compared the particulars of the charges in the indictment in this matter with the indictment in another case involving cartel offences which was recently heard in this Court. It would be fair to say that the statements of the charges in the indictment in that matter did not include the level of particularisation demanded by the accused in this matter. There was apparently no objection to the indictment in that matter.

Findings

173    As for the complaint concerning the particulars of the date of the offence, it is somewhat unclear why the prosecutor has chosen to include the word “about” in particularising the date. It was suggested in the course of the prosecutor’s oral submissions that this ‘hedging’ had been at least partially prompted by uncertainty as to the time zone and location of some of the accused when the relevant telephone communications occurred. It is, however, tolerably clear from the terms of the Notice that the prosecutor alleges that the communications that gave rise to the Friday Understanding mainly occurred on 7 August 2015: see [65]-[78] of the Notice. That may be taken to be a reference to the date and time zone in Sydney, Australia, even if some participants in the relevant telephone conferences may have been elsewhere. It is doubtful that it is necessary to include the word “about” to deal with the possibility that some participants may have been somewhere where, because of different time zones, the date was different.

174    It may perhaps be accepted that it is common for prosecutors to use the word “about”, or similar words, when providing particulars in an indictment of the date that an offence was allegedly committed. That is presumably to provide some latitude in the event that the evidence does not precisely pinpoint the date on which the offence was allegedly committed. There are also cases where the evidence available to the prosecutor may not clearly establish the date on which the offence was committed. It does not follow that that practice should invariably and unthinkingly be followed in every case.

175    The lack of precision in terms of the date of this offence would perhaps not matter were it not for the possibility of some confusion as a result of a similar lack of precision in relation to the particularisation of charge 9, which is the charge that relates to the making of the 5%-7% Understanding. That offence is alleged to have been committed “between about 7 August 2015 and about 8 August 2015”. It would appear tolerably clear from the Notice that the prosecution case is that the 5%-7% Understanding was in fact made, or arrived at, during a telephone conference or conference that took place on 8 August 2015. The point to emphasise in the present context is that there is a potentially confusing overlap between the dates of charges 1 and 9.

176    On balance, while I consider that it would be preferable for the indictment to clearly allege, consistently with the Notice, that the offence in charge 1 was committed on 7 August 2015 (Sydney time), I am not persuaded that the charge is defective by reason of the use of the word “about”. Nor do I consider that the partial overlap between the dates in charge 1 and charge 9 means that the particularisation of the date in charge 1 is necessarily defective, or that any issue concerning duplicity is genuinely likely to arise. Any potential for confusion can be allayed by careful attention to the evidence and, if necessary, directions to the jury at an appropriate point in the trial.

177    I also do not consider that it is necessary for the particulars of the charge to include the precise time that it is alleged that the offence was committed. That degree of specificity or particularity may be appropriate in the Notice, however it is not required in the indictment.

178    Equally, I am not persuaded that the particulars as to the place that the offence was allegedly committed are defective by reason of the inclusion of the words “and elsewhere”. The inclusion of those words is warranted given that the evidence available to the prosecutor is apparently not capable of identifying exactly where all the key participants in the relevant telephone conferences were located at the time. I do not consider that any lack of specificity caused by the inclusion of the words “and elsewhere” renders the particulars invalid or is likely to give rise to any genuine issue at trial.

179    The submission that the charge does not identify the relevant officers or employees of Citigroup and Deutsche Bank who made or arrived at the arrangement or understanding does, however, require closer scrutiny. So too does the related complaint that the charge does not identify what those officers did, or what their state of mind was when they engaged in that conduct. There is no question that the accused are entitled to particulars of those matters. Those particulars are, for the most part, already provided in the Notice. The question is whether the particulars, or at least a summary or distillation of them, are essential factual ingredients which must be included in the statement of the charge in the indictment itself.

180    On one view, the essential factual ingredient of this aspect of the charge is the factual allegation that Citigroup and Deutsche Bank “made an arrangement or arrived at an understanding with each other and J.P. Morgan”. Be that as it may, I do not accept that the particulars of the conduct alleged to have been engaged in by Citigroup and Deutsche Bank should necessarily end with that allegation. The nature of this case is such that some further particularisation of the relevant conduct is warranted and required in the indictment.

181    A corporation can of course only act through natural persons, ordinarily its officers, employees or representatives. Subsection 84(2)(a) of the C&C Act provides that any conduct engaged in on behalf of a body corporate by, inter alia, “a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority”, is “deemed”, for the purposes of the C&C Act, to have been “engaged in also by the body corporate”. It is clear from the Notice that the prosecution case is that the conduct which led to, or constituted, the making of, or arrival at, the Friday Understanding was the conduct of officers, employees or representatives of, relevantly, Citigroup and Deutsche Bank – specifically Messrs Tuchman, McLean and Roberts, on behalf of Citigroup and Messrs Ormaechea and Richardson on behalf of Deutsche Bank: see [78]-[84] of the Notice.

182    It may readily be accepted, as the prosecutor submitted, that the indictment does not have to include the evidentiary basis for the charge. It does, however, have to identify the essential factual ingredients or elements of the offence. The circumstances of this case are such that the indictment should include some particulars which identify the officers, employees or representatives of Citigroup and Deutsche Bank whose conduct in making or arriving at the alleged arrangement or understanding is alleged to be attributable to those corporations. It should also include some particulars of the factual basis upon which it is alleged that the conduct of those persons officers is attributable to the corporations in question – in particular, that they were officers, employees or representatives acting within the scope of their actual or apparent authority.

183    Perhaps more significantly, the particulars to be included in the indictment should also include a short summary or distillation of the conduct of the relevant individuals. The Notice indicates that the essence of the conduct of the relevant individuals was their participation in a telephone conference on 7 August 2015 during which the participants discussed and ultimately made the alleged arrangement, or arrived at the alleged understanding: [65]-[77] of the Notice. The particulars to be included in the indictment plainly do not have to descend to the level of detail in the Notice. They do not, for example, have to indicate what was said and by whom during the conference. They do, however, have to identify what, in general or summary terms, the individuals are alleged to have done.

184    The particulars could conveniently be included under a subheading after the statement of the charge. The desirability of including such particulars in respect of charge 1 in the indictment is even more apparent in circumstances where, as discussed later, further particularisation is in any event required in the case of the charges against Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson, each of whom is charged with being knowingly concerned in, or a party to, the offence in charge 1. If it is necessary to provide some particulars concerning the conduct of the individuals that is said to have made them knowingly concerned in, or a party to, the offences committed by their respective corporations, why not also include those particulars in respect of charge 1?

185    That then raises the question of whether the particulars in the indictment should also contain some particulars of the fault element which corresponds with the conduct element of making the relevant arrangement, or arriving at the relevant understanding. More significantly, it raises the question whether the indictment should include some particulars of the state of mind of the officers, employees or representatives of Citigroup and Deutsche Bank who it is alleged engaged in the conduct that resulted in the making of the relevant arrangement or understanding. The state of mind of, inter alia, a director, employee or agent of a body corporate when engaging in the relevant conduct is attributable to the body corporate: s 84(2) of the C&C Act.

186    Dealing with the first of those questions, as discussed earlier in these reasons, the fault element corresponding with the conduct element of making the arrangement, or arriving at the understanding, is intention. The charge as presently framed does not allege that Citigroup and Deutsche Bank intentionally made the relevant arrangement, or arrived at the relevant understanding. In my view it plainly should.

187    The prosecutor accepted that intention is an element of the offence. It is equally clear from the Notice that the prosecution case is that Citigroup and Deutsche Bank intentionally made or arrived at the Friday Understanding: [78] and [82] of the Notice. The prosecutor maintained, however, that the charge did not need to include that plea because the relevant offence provision does not include alternative fault elements. The submission appeared to be that it was only in such a case that a charge is required to plead the fault element. That submission was said to be supported by a passage from the judgment in John L at 521. I do not agree that the passage from John L supports that submission, or that a charge need only plead the fault element of the offence when alternatives are available.

188    It follows that the statement of charge 1 should include the allegation that both Citigroup and Deutsche Bank intended to make the relevant arrangement or arrive at the understanding. The charge should also include some particulars identifying the officers, employees or representatives who it is alleged had that intention and whose state of mind is said to be attributed to the corporations in question. It is tolerably clear from the Notice that the prosecution case is that each of Messrs Tuchman, McLean and Roberts, on behalf of Citigroup, and Messrs Ormaechea and Richardson, on behalf of Deutsche Bank, intended to make the relevant arrangement, or arrive at the relevant understanding: see [78]-[84] of the Notice. In my view, those particulars should be included in the indictment as they are part of the essential factual ingredients of the offence.

189    The fault element of an offence under s 44ZZRF(1) of the C&C Act is not limited to the intention to make the alleged arrangement, or arrive at the alleged understanding. It is also an element of the offence that the accused knew or believed that the arrangement or understanding contained a cartel provision: s 44ZZRF(1)(b) and (2) of the C&C Act. It is clear that the prosecution case is that Messrs Roberts, Tuchman and McLean, on behalf of Citigroup, and Messrs Ormaechea and Richardson, on behalf of Deutsche Bank, not only intended to make or arrive at the Friday Understanding for or on behalf of their respective corporations, but also knew or believed the facts that made the arrangement or understanding a cartel provision: see [78], [82] and [87] of the Notice. Those particulars should also be included in the indictment as they are part of the essential factual ingredients of the offence.

Summary and suggested particulars

190    It is not for the Court to specify the precise particulars that the prosecutor should include in the indictment. It is ultimately a matter for the prosecutor to file an indictment that complies with the requirement of sufficient particularity. The following suggested form of the additional particulars is provided to give an illustration of the degree of particularity required in the particular circumstances of this case and so as to avoid the potential for further disputes concerning the particulars in the indictment. The prosecutor is not bound to adopt the precise wording of these suggested particulars.

Particulars of conduct

The arrangement was made, or the understanding was arrived at, during and as a result of discussions that occurred between officers, employees or representatives of Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited on 7 August 2015. Those officers, employees or representatives included Itay Tuchman, John McLean and Stephen Roberts on behalf of Citigroup Global Markets Australia Pty Limited and Michael Ormaechea and Michael Richardson on behalf of Deutsche Bank Aktiengesellschaft. In engaging in those discussions, those individuals intended to make the arrangement or arrive at the understanding on behalf of their respective corporations and knew or believed the facts that meant that the arrangement or understanding was or contained a cartel provision. They were also acting within the scope of their actual or apparent authority. Their conduct and state of mind are accordingly attributable to Citigroup Global Markets Australia Pty Limited or Deutsche Bank Aktiengesellschaft.

191    The inclusion of particulars along those lines will undoubtedly increase the length of the indictment. It may also be accepted that the inclusion of such detailed particulars may be somewhat out of the ordinary for a criminal pleading. This case, however, is anything but an ordinary case. Corporations are not often prosecuted for indictable offences. There has also been only one prior defended indictable trial involving cartel offences. The fact that the indictment in that case did not include such detailed particulars does not indicate that the indictment in this case should not.

192    I should finally hasten to add that I do not accept that any further or more detailed particulars of charge 1 are required to satisfy the requirement of reasonable particularity. For example, as noted earlier, I do not consider that it is necessary to include particulars in the indictment that identify the time at which the key telephone conferences occurred, or the content of the discussions which occurred during the relevant telephone conferences, or who said what and when. Particulars including that level of detail can and should be provided separately in the Notice. The adequacy of the Notice in that regard is a topic for separate consideration.

Charges 2 and 3: Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson knowingly concerned in the contravention of s 44ZZRF(1) by Citigroup and Deutsche Bank

193    Charges 2 and 3 may conveniently be dealt with together. They are currently pleaded in the following terms:

Charge 2 The Prosecutor charges that on about 7 August 2015 at Sydney in the State of New South Wales and elsewhere, each of ITAY TUCHMAN, JOHN WILLIAM MCLEAN and STEPHEN HUNTER ROBERTS was knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited of a cartel offence provision namely section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth), in that Citigroup Global Markets Australia Pty Limited made an arrangement or arrived at an understanding with Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, that contained a cartel provision, knowing or believing that arrangement or understanding contained a cartel provision.

Contrary to section 44ZZRF(1) with section 79(1)(c) of the Competition and Consumer Act 2010 (Cth).

Charge 3 The Prosecutor charges that on about 7 August 2015 at Sydney in the State of New South Wales and elsewhere, each of MICHAEL RENE ORMAECHEA and MICHAEL HUGH RICHARDSON was knowingly concerned in, or a party to, the contravention by Deutsche Bank Aktiengesellschaft of a cartel offence provision namely section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth), in that Deutsche Bank Aktiengesellschaft made an arrangement or arrived at an understanding with Citigroup Global Markets Australia Pty Limited and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, that contained a cartel provision, knowing or believing that arrangement or understanding contained a cartel provision.

Contrary to section 44ZZRF(1) with section 79(1)(c) of the Competition and Consumer Act 2010 (Cth).

194    The contravention by Citigroup and Deutsche Bank in respect of which it is alleged that Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson were knowingly concerned, or a party to, is the contravention which is the subject of charge 1.

195    As with charge 1, the particulars of the arrangement or understanding which is the subject of these charges are the Friday Understanding particulars, which are currently included in the indictment after charge 8, and the applicable particulars of the cartel provision are the cartel provision (supply) particulars which are currently included in the indictment after charge 21.

Alleged deficiencies in the pleading of charges 2 and 3

196    The accused raised the following complaints or objections to the form of this charge.

197    First, and perhaps most significantly, the accused noted that the charges do not include any particulars of the conduct of the accused by which they are alleged to have been concerned in or party to the contraventions by Citigroup and Deutsche Bank.

198    Second, while the charges allege that the accused were “knowingly” concerned, they do not include any particulars of what it is alleged that they knew. Nor do they include any other particulars of the relevant state of mind of the individual accused.

199    The prosecutor’s response to those complaints was to again submit that the indictment does not need to include the evidence against the accused. In the prosecutor’s submission, it is sufficient for the charges to allege that the accused were knowingly concerned in the contraventions by Citigroup and Deutsche Bank without further detailing the conduct engaged in by the accused or their state of mind. That was said to be conventional. Indeed, the prosecutor submitted that accessorial charges rarely, if ever, include particulars of the conduct by which the accused are alleged to be accessorially liable.

Findings

200    There is merit in the complaints advanced by the accused concerning the particularisation of charges 2 and 3. In my opinion, the mere inclusion of the words “knowingly concerned in, or a party to” does not satisfy the requirement that the charges identify the essential factual ingredients of the offences, at least in the particular circumstances of this case.

201    As discussed earlier, a person may be found to have been knowingly concerned in, or a party to, a contravention if, by act or omission, they implicate themselves in, or associate themselves with, the contravention, with knowledge of the essential elements of the contravention. The problem with charges 2 and 3 as currently pleaded is that they do not identify the acts or omissions by any of the individual accused that are said to have implicated or associated them with the contraventions by Citigroup and Deutsche Bank. Nor do they identify the knowledge that it is alleged that they possessed at the time they engaged in the conduct that is said to have implicated them in the contraventions.

202    As has already been discussed, it is tolerably clear that the prosecution case against each of Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson is that they participated in the discussions which culminated in a telephone conference at about 10.00 am on 7 August 2015 during which the Friday Understanding was allegedly made or arrived at: [65]-[78], [82] and [104] of the Notice. The Notice contains fairly detailed particulars of what was said and by whom during the relevant discussions: [54]-[76] of the Notice. It is plainly unnecessary for the indictment to include those detailed particulars. In my view, however, the indictment should identify, at the very least, that it was the participation by each of the accused in the discussions that led to the Friday Understanding that made them relevantly concerned in, or a party to, the relevant contraventions by the corporations they represented. That is the essential factual ingredient in the alleged offences. The mere allegation that the accused were concerned in or party to the contraventions does not suffice.

203    It is equally clear that the prosecution case against the accused is that, by their participation in the relevant discussions, they intended to enter into the Friday Understanding on behalf of the corporations they represented and that they knew that the Friday Understanding had the purpose or purposes that allegedly made it a cartel provision: [79], [80], [81], [83], [84], [87], [88] and [103] of the Notice. In my view, the indictment should contain particulars of that intention and knowledge because they are essential factual ingredients of the alleged offences. The mere inclusion of the word “knowingly” does not suffice, at least in the particular circumstances of this case.

204    It is, with respect, misconceived to rely on some apparent convention or practice of not including any such particulars in an indictment containing accessorial counts. It is difficult to reconcile that approach with the principles discussed earlier which establish that it is necessary for a statement of charge in an indictment to plead or particularise the essential factual ingredients of the offence in question. Merely alleging that an accused was knowingly concerned in, or a party to, a contravention is unlikely to satisfy that requirement. In any event, the particular nature and circumstances of the charges or offences in question in this case compel the inclusion of such particulars in the indictment.

205    The requirement to include some basic particulars of the conduct and the state of mind of each of the accused is not likely to be onerous for the prosecutor. As has been repeatedly emphasised, it is not suggested, including by the accused, that the particulars in the indictment should include the level of factual detail which is included in the Notice. The inclusion of concise particulars in the indictment of the substance of what it is alleged that the accused did, and what they knew and intended, will undoubtedly increase the length of the indictment. Any disadvantage flowing from that, however, will undoubtedly be outweighed by the improvement in the clarity of the charges. The inclusion of these particulars will, amongst other things, clearly assist the jury in understanding the factual underpinnings of the charge.

206    It should perhaps be noted, in this context, that it was submitted on behalf of Mr Roberts that the prosecutor had not provided adequate particulars of the prosecution case against Mr Roberts. That was said to be because, while the Notice states that Mr Roberts participated in the telephone conference at 10.00 am on 7 August 2015, when it comes to identifying what Mr Roberts is alleged to have said during that telephone conference, the Notice simply states that Mr Roberts or Mr Tuchman agreed to certain things: [71], [72] and [73] of the Notice. It would appear that the evidence available to the prosecutor does not identify which of those two individuals actually said something or anything during the telephone conference. It was submitted on behalf of Mr Roberts that the prosecutor effectively had to elect or choose between the allegation that Mr Roberts said something, or was merely passive throughout the call.

207    There is perhaps some merit in Mr Roberts’ complaints concerning the particulars that the prosecutor has provided to date in relation to the charges against him. It is, however, doubtful that the prosecutor is required to elect whether to allege that Mr Roberts was an active or passive participant in the conference call. It may be open to the prosecutor to allege that, given Mr Roberts’ position at Citigroup and the content of the discussions that occurred during the conference call, his mere participation in that conference was sufficient to implicate him in the offence, whether he spoke or not. Even if he remained silent, it may be open to the prosecutor to allege that, in all the circumstances, silence amounted to an express or at least implicit agreement or assent to the arrangement or understanding that was allegedly discussed and agreed to during the conference. If, however, that is the way the prosecutor puts the case against Mr Roberts, the particulars in the Notice should make that abundantly clear. The Notice perhaps does not make the prosecution case against Mr Roberts as clear as it should in that regard.

208    The question then arises whether the particulars to charge 2 in the indictment are required to address this issue insofar as Mr Roberts is concerned. On balance, I do not consider that the particulars have to descend to that level of detail. In my view, it is sufficient for the particulars in the indictment to identify that the essential factual ingredient or element of the charge against Mr Roberts is that he participated, as an officer, employee or representative of Citigroup, in the relevant discussions during which the alleged arrangement was made, or the understanding was arrived at. For the reasons already given, the particulars must also include that, in participating in the relevant discussions, Mr Roberts intended that Citigroup would make, or arrive at, the relevant arrangement or understanding. It is essentially implicit in that allegation that his participation in the discussions, in all the circumstances, amounted to him agreeing or assenting to the arrangement or understanding, whether that agreement or assent was verbal or was to be implied or inferred from his silence. Of course, whether the evidence is ultimately capable of making out that allegation is another matter entirely.

209    I should finally note that I do not accept that the particulars of the date on which, and the place at which, these offences were allegedly committed are defective for the reasons given in the context of charge 1.

Summary and suggested particulars

210    Following are some example or suggested further particulars in relation to charge 2. This suggestion is subject to the qualifications referred to earlier in the context of charge 1. It is unnecessary to provide a separate suggestion for charge 3 as the further particulars of that charge will most likely resemble those for charge 2. The prosecutor is not bound to use the precise wording of the following suggested particulars.

Particulars of conduct

Each of Itay Tuchman, John McLean and Stephen Roberts were knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited by reason of their participation, as officers, employees or representatives of that corporation, in discussions on 7 August 2015 with senior officers of Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited during which the arrangement was made or the understanding arrived at. In participating in those discussions, Itay Tuchman, John McLean and Stephen Roberts each intended that Citigroup Global Markets Australia Pty Limited would make the arrangement, or arrive at the understanding, and knew the facts which meant that the arrangement or understanding was or contained a cartel provision.

211    As noted in the context of the suggested particulars of charge 1, I do not consider that any further or more detailed particulars of, for example, the content of the relevant discussions, are required to satisfy the requirement of reasonable particularity. Further details of the discussions that are alleged to have amounted to the making of the Friday Understanding can and should be provided separately in the Notice.

Charge 4: ANZ and Mr Moscati knowingly concerned in the contravention of s 44ZZRF(1) by Citigroup, Deutsche Bank and J.P. Morgan

212    Similar issues arise in relation to charge 4 in the indictment, which is currently pleaded in the following way:

Charge 4 The Prosecutor charges that on about 7 August 2015 at Sydney in the State of New South Wales and elsewhere, each of AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED and RICHARD MARC MOSCATI was knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited of a cartel offence provision namely section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth), in that Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited made an arrangement or arrived at an understanding with each other in relation to the supply of Australia and New Zealand Banking Group Limited shares, that contained a cartel provision, knowing or believing that arrangement or understanding contained a cartel provision.

Contrary to section 44ZZRF(1) with section 79(1)(c) of the Competition and Consumer Act 2010 (Cth).

213    The contravention by Citigroup and Deutsche Bank in respect of which it is alleged that ANZ and Mr Moscati were knowingly concerned in, or parties to, is the contravention which is the subject of charge 1. It is to be noted, however, that the parties to that contravention are said, for the purposes of this charge, to include J.P. Morgan.

214    The particulars of the arrangement or understanding and the particulars of the cartel provision are otherwise the same as the particulars in the case of charge 1.

Deficiencies in the pleading of charge 4

215    The deficiencies in the pleading of charge 4 are, for the most part, the same as or similar to the deficiencies that have been discussed in the context of charges 1 to 3. They may accordingly be dealt with in short terms.

216    It is clear from the Notice that the prosecution case is that ANZ is alleged to be knowingly concerned in, or a party to, the contravention of s 44ZZRF(1) of the C&C Act by Citigroup, Deutsche Bank and J.P. Morgan through the conduct and state of mind of its officer, employee or representative, Mr Moscati: [106] of the Notice. That, however, is not made entirely clear in the way the charge has been pleaded. Perhaps more significantly, the statement of the charge does not include any particulars of what Mr Moscati is alleged to have done to make him and ANZ concerned in, or a party to, the relevant contraventions. Nor does it contain any particulars of Mr Moscati’s state of mind when he engaged in that conduct.

217    It would appear from the Notice that the conduct of Mr Moscati which the prosecutor alleges made him and ANZ knowingly concerned in, or parties to, the relevant contravention was his participation in the telephone conference that occurred at 10.00 am on 7 August 2015: [67], [68], [74], [75] and [105] of the Notice. The Notice includes details of what Mr Moscati is alleged to have said during the conference and a summary of the effect of what he said: [67]-[79], [104]-[106] of the Notice. In my view, for essentially the same reasons as those given in relation to the particularisation of charges 2 and 3, the indictment should include some brief particulars of what it is alleged that Mr Moscati did to make him knowingly concerned in, or a party to, the relevant contravention. Those particulars again need not descend to the level of detail contained in the Notice, though they should generally correspond with particulars given in [105] of the Notice.

218    As for Mr Moscati’s knowledge, the Notice contains particulars of Mr Moscati’s relevant knowledge or belief: [97]-[99] of the Notice. In my view, again for essentially the same reasons as those given in relation to the particularisation of charges 2 and 3, the statement of charge 4 in the indictment should contain some particulars of that knowledge or belief.

219    Consistently with the conclusions reached in relation to charge 1 in the indictment, charge 4 should include some particulars that make it clear that ANZ’s liability is said to be incurred through the actions and state of mind of Mr Moscati.

220    Finally, I do not accept that the particulars of the date on which, and the place at which, this offence was allegedly committed are defective for the reasons given in the context of charge 1.

Summary and suggested particulars

221    Following are some example or suggested further particulars in relation to charge 4. This suggestion is again subject to the qualifications referred to earlier in the context of charge 1. The prosecutor is not bound to use the precise wording of the following particulars, though the wording has essentially been drawn from the Notice.

Particulars of conduct

Richard Moscati was knowingly concerned in, or a party to, the contraventions by Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited by reason of his participation, as an officer, employee or representative of Australia and New Zealand Banking Group Limited, in discussions on 7 August 2015 with officers of Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited during which the arrangement was made or the understanding arrived at between those corporations. In participating in those discussions, Richard Moscati asked, encouraged and assisted those corporations to make the arrangement, or enter into the understanding, intended to ask, encourage and assist those corporations to make the arrangement, or enter into the understanding and knew the facts which meant that the arrangement or understanding was or contained a cartel provision.

Australia and New Zealand Banking Group Limited was knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited by reason of Richard Moscati’s participation, as an officer, employee or representative of Australia and New Zealand Banking Group Limited, in discussions on 7 August 2015 with officers of Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited during which the arrangement was made, or the understanding was arrived at, between those corporations. In participating in those discussions, Richard Moscati asked, encouraged and assisted those corporations to make the arrangement, or enter into the understanding, intended to ask, encourage and assist those corporations to make the arrangement, or enter into the understanding and knew the facts which meant that the arrangement or understanding was or contained a cartel provision. He was also acting within the scope of his actual or apparent authority as an officer, employee or representative of Australia and New Zealand Banking Group Limited. His conduct and state of mind are accordingly attributable to Australia and New Zealand Banking Group Limited.

222    In my view, the requirement of reasonable particularity does not require the particulars in the indictment to include any further detail concerning exactly what Mr Moscati is alleged to have said or done during the relevant discussions. Further particulars of that conduct can and should be included in the Notice.

Charge 5: Contravention of s 44ZZRG(1) by Citigroup and Deutsche Bank

223    Charge 5 is pleaded as follows in the indictment:

Charge 5 The Prosecutor charges that on about 7 August 2015 at Sydney in the State of New South Wales and elsewhere, CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED and DEUTSCHE BANK AKTIENGESELLSCHAFT gave effect to a cartel provision contained in an arrangement or understanding with each other and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, knowing or believing that arrangement or understanding contained a cartel provision.

Contrary to section 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth).

224    The particulars of the arrangement or understanding and the particulars of the cartel provision are the same as the particulars in the case of charges 1 to 4.

Alleged deficiencies in the pleading of charge 5

225    The accused contended that there were four main deficiencies with the statement of charge 5.

226    First, the charge does not contain adequate particulars of the date and place of the offence. The submission in that regard was essentially the same as the submission referred to earlier in the context of charge 1.

227    Second, the charge does not include any particulars of the conduct by which the accused are alleged to have given effect to the relevant cartel provision. Rather, the charge simply alleges, using the language of s 44ZZRG(1) of the C&C Act, that the accused “gave effect to” a cartel provision.

228    Third, the charge does not identify the individuals who engaged in the conduct for and on behalf of Citigroup and Deutsche Bank which is alleged to have given effect to the cartel provision, or the basis upon which that conduct is said to be attributable to those corporations. Nor does the charge make it clear that it is those officers who allegedly knew that the arrangement or understanding was or contained a cartel provision.

229    Fourth, the charge does not plead the requisite fault element in relation to the conduct element of “gave effect to”. That fault element is intention.

Findings

230    There is merit in each of these complaints about the pleading of charge 5, other than the complaint concerning the particulars of the date and place of the offence.

231    In my view, the allegation that Citigroup and Deutsche Bank “gave effect to” the cartel provision does not, without more, identify the essential factual ingredients of the charge. The expression “gave effect to” is somewhat vague and nebulous. It does not give any real indication of what it is alleged that Citigroup and Deutsche Bank actually did to give effect to the relevant cartel provision.

232    The Notice contains some particulars of the conduct of various officers, employees or representatives of Citigroup and Deutsche Bank which it is alleged constitute giving effect to the relevant cartel provision: [115]-[132] (Citigroup) and [133]-[144] (Deutsche Bank) of the Notice. In short summary, it is essentially alleged that the officers or representatives took steps to ensure, or which were intended to ensure, that both Citigroup and Deutsche Bank did not reduce their net holdings of ANZ shares during the course of 7 August 2015. Those steps included advising or instructing the employees who were responsible for reducing the respective investment banks’ risk position in respect of their holdings of ANZ shares to act in accordance with the substance of the Friday Understanding. It is alleged that neither of the investment banks in fact reduced their net holdings in ANZ shares during the course of that day. The Friday Understanding was therefore given effect in that respect.

233    The statement of charge 5 should, in my view, contain some concise particulars of the substance of the conduct that was allegedly engaged in by Citigroup and Deutsche Bank that is said to constitute or amount to giving effect to the Friday Understanding. Those particulars again do not have to be nearly as extensive as the particulars in the Notice, though they do have to summarise or identify the general substance or effect of the relevant conduct. Without such particulars, the charge does not adequately identify the essential factual ingredients of the alleged offence.

234    The particulars of the conduct engaged in by each of Citigroup and Deutsche Bank to give effect to the Friday Understanding should also identify the individuals whose conduct is alleged to be attributed to the corporations, as well as the basis upon which it is said that the conduct of the officers is to be attributed to their respective corporations. It is clear from the Notice that those individuals are said to be, or at least include, Messrs Tuchman, McLean and Roberts, in respect of Citigroup, and Messrs Ormaechea and Richardson in respect of Deutsche Bank: [124], [126]-[132] and [138], [140]-[144] of the Notice. Those individuals are also charged with being knowingly concerned in, or a party to, the offences allegedly committed by Citigroup and Deutsche Bank. As discussed later, the charges against each of the individuals will in any event be required to contain some particulars of the conduct engaged in by them which allegedly made them knowingly concerned in, or a party to, the offences.

235    Finally, the particulars that are to be included in the indictment should also plead the requisite fault element of intention in respect of the conduct element of “gave effect to”. The particulars should also make it clear that the officers who engaged in the relevant conduct both intended to give effect to the cartel provision in the Friday Understanding and knew that the Friday Understanding contained that cartel provision.

236    I do not accept that the particulars of the date and place are defective for essentially the same reasons as those given in the context of charge 1.

Summary and suggested particulars

237    Following are suggested further particulars in relation to charge 5. This suggestion is again subject to the qualifications referred to earlier in the context of charge 1.

Particulars of conduct

Citigroup Global Markets Australia Pty Limited gave effect to the cartel provision in the arrangement or understanding by its officers, employees or representative, Itay Tuchman, John McLean and Stephen Roberts, engaging in conduct on 7 August 2015 which ensured or was intended to ensure that Citigroup Global Markets Australia Pty Limited restricted or limited its trading in Australia and New Zealand Banking Group Limited shares on 7 August 2015 so that it did not, by the end of trading on that day, reduce the net number of those shares held by it. In engaging in that conduct, Itay Tuchman, John McLean and Stephen Roberts intended to give effect to the cartel provision in the arrangement or understanding and knew the facts that meant that the arrangement or understanding was or contained a cartel provision. They were also acting within the scope of their actual or apparent authority as officers, employees or representatives of Citigroup Global Markets Australia Pty Limited. Their conduct and state of mind are thereby attributable to Citigroup Global Markets Australia Pty Limited.

Deutsche Bank Aktiengesellschaft gave effect to the cartel provision in the arrangement or understanding by its officers, employees or representatives, Michael Ormaechea and Michael Richardson, engaging in conduct on 7 August 2015 which ensured or was intended to ensure that Deutsche Bank Aktiengesellschaft restricted or limited its trading in Australia and New Zealand Banking Group Limited shares on 7 August 2015 so that it did not, by the end of trading on that day, reduce the net number of those shares held by it. In engaging in that conduct, Michael Ormaechea and Michael Richardson intended to give effect to the cartel provision in the arrangement or understanding and knew the facts that meant that the arrangement or understanding was or contained a cartel provision. They were also acting within the scope of their actual or apparent authority as officers, employees or representatives of Deutsche Bank Aktiengesellschaft. Their conduct and state of mind are accordingly attributable to Deutsche Bank Aktiengesellschaft.

238    I do not consider that the particulars need to provide any further detail as to the precise nature of the conduct engaged in by the accused. Those further particulars can and should be supplied in the Notice.

Charges 6 and 7: Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson knowingly concerned in the contravention of s 44ZZRG(1) by Citigroup and Deutsche Bank

239    Charges 6 and 7 may conveniently be dealt with together. They are currently pleaded as follows:

Charge 6 The Prosecutor charges that on about 7 August 2015 at Sydney in the State of New South Wales and elsewhere, each of ITAY TUCHMAN, JOHN WILLIAM MCLEAN and STEPHEN HUNTER ROBERTS was knowingly concerned in, or a party to the contravention by Citigroup Global Markets Australia Pty Limited of a cartel offence provision namely section 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth), in that Citigroup Global Markets Australia Pty Limited gave effect to a cartel provision contained in an arrangement or understanding with Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, knowing or believing that arrangement or understanding contained a cartel provision.

Contrary to section 44ZZRG(1) with section 79(1)(c) of the Competition and Consumer Act 2010 (Cth).

Charge 7 The Prosecutor charges that on about 7 August 2015 at Sydney in the State of New South Wales and elsewhere, each of MICHAEL RENE ORMAECHEA and MICHAEL HUGH RICHARDSON was knowingly concerned in, or a party to the contravention by Deutsche Bank Aktiengesellschaft of a cartel offence provision namely section 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth), in that Deutsche Bank Aktiengesellschaft gave effect to a cartel provision contained in an arrangement or understanding with Citigroup Global Markets Australia Pty Limited and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, knowing or believing that arrangement or understanding contained a cartel provision.

Contrary to section 44ZZRG(1) with section 79(1)(c) of the Competition and Consumer Act 2010 (Cth).

240    The contravention by Citigroup and Deutsche Bank in respect of which it is alleged that Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson were knowingly concerned in, or parties to, is the contravention which is the subject of charge 5.

Deficiencies in the pleading of charges 6 and 7

241    The accused contended that the current pleading of these charges is deficient because there is no identification of the conduct engaged in by them which is alleged to have made them concerned in, or a party to, the offences committed by their employers. Nor is there any satisfactory particularisation of their respective states of mind which are alleged to have made them “knowingly” concerned in those offences.

242    For the reasons essentially already given in the context of charge 5, there is merit in those contentions. In my view, the charge should provide concise particulars which summarise the conduct engaged in by each of the accused which is said to have resulted in them being concerned in, or a party to, the offence. There should also be some short articulation of their alleged state of mind when they engaged in that conduct so as to give some substance to the allegation that they were “knowingly” concerned. As has already been made clear, the particulars need not be anywhere near as detailed as the particulars contained in the Notice.

243    I should finally note that, to the extent that the accused contended that the particulars of the date and place of these offences are deficient, that contention again has no merit for essentially the same reasons as those given in the context of the preceding charges.

Summary and suggested particulars

244    Following are some suggested further particulars in relation to charge 6. The prosecutor is again not bound to use the precise wording of these particulars. They are provided by way of example and to illustrate the degree of specificity or particularity that is required. It is unnecessary to provide separate suggested particulars for charge 7 as the further particulars of that charge will most likely resemble those for charge 6.

Particulars of conduct

Each of Itay Tuchman, John McLean and Stephen Roberts was knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited by engaging in conduct on 7 August 2015 which ensured or was intended to ensure that Citigroup Global Markets Australia Pty Limited restricted or limited its trading in Australia and New Zealand Banking Group Limited shares on 7 August 2015 so that it did not, by the end of trading on that day, reduce the net number of those shares held by it. In engaging in that conduct, Itay Tuchman, John McLean and Stephen Roberts intended to give effect to a cartel provision in the arrangement or understanding and knew the facts that meant that the arrangement or understanding was or contained a cartel provision.

245    As with the particulars of charge 5, I do not consider that the particulars need to provide any further detail as to the precise nature of the conduct engaged in by the accused. Those further particulars can and should be supplied in the Notice.

Charge 8: ANZ and Mr Moscati knowingly concerned in the contravention of s 44ZZRG(1) by Citigroup, Deutsche Bank and J.P. Morgan

246    Charge 8 is in similar terms to charges 6 and 7, though the accused are ANZ and Mr Moscati and the alleged contravention in respect of which ANZ and Mr Moscati are alleged to be knowingly concerned in, or parties to, is a contravention of s 44ZZRG(1) of the C&C Act by each of Citigroup, Deutsche Bank and J.P. Morgan. It is currently pleaded in the indictment as follows:

Charge 8 The Prosecutor charges that on about 7 August 2015 at Sydney in the State of New South Wales and elsewhere, each of AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED and RICHARD MARC MOSCATI was knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited of a cartel offence provision namely section 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth), in that Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited gave effect to a cartel provision contained in an arrangement or understanding with each other in relation to the supply of Australia and New Zealand Banking Group Limited shares, knowing or believing that arrangement or understanding contained a cartel provision.

Contrary to section 44ZZRG(1) with section 79(1)(c) of the Competition and Consumer Act 2010 (Cth).

Deficiencies in the pleading of charge 8

247    The contentions by the accused in relation to the pleading of this charge are similar to the contentions raised in relation to charges 4, 5, 6 and 7.

248    As is the case with charge 4, it is clear that the prosecution case is that ANZ is alleged to be knowingly concerned in the contraventions of s 44ZZRG(1) of the C&C Act by Citigroup, Deutsche Bank and J.P. Morgan through the conduct and state of mind of Mr Moscati: [148] of the Notice. That, however, is not made entirely clear in the charge as presently pleaded. It should be.

249    Perhaps more significantly, the statement of the charge does not include any particulars of what Mr Moscati is alleged to have done to make him and ANZ concerned in, or a party to, the relevant contravention. Nor does it contain any particulars of Mr Moscati’s state of mind when he engaged in that conduct. For the reasons already given in the context of charges 4, 5, 6 and 7, the statement of charge 8 should include some concise particulars of the substance or effect of what it is alleged that Mr Moscati did, and what he knew and intended, in terms of giving effect to the cartel provision. The conduct allegedly engaged in by Mr Moscati in that regard and his knowledge and intentions are essentially set out at [146]-[147] of the Notice.

250    It should perhaps be noted in this context that the particulars of the relevant conduct of Mr Moscati which are provided in the Notice tend to suggest that it may be more appropriate for it to be alleged that Mr Moscati aided, abetted, counselled or procured the contraventions (s 79(1)(a) of the C&C Act), as opposed to being knowingly concerned in, or a party to, the contraventions (s 79(1)(c) of the C&C Act). Charge 15 is pleaded in terms of the former allegation. It is not entirely clear why charge 8 is pleaded differently. Ultimately, however, it is a matter for the prosecutor to determine how best to frame the charge having regard to the available evidence.

Summary and suggested particulars

251    Following are example or suggested further particulars in relation to charge 8. This suggestion is again subject to the qualifications referred to earlier in the context of charge 1.

Particulars of conduct

Richard Moscati was knowingly concerned in, or a party to, the contraventions by Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited by reason of his engaging in conduct which encouraged and assisted Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited to restrict or limit their trading in Australia and New Zealand Banking Group Limited shares on 7 August 2015 so that they did not, by the end of trading on that day, reduce the net number of those shares held by them. In engaging in that conduct, Richard Moscati intended to encourage and assist Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited to give effect to a cartel provision in or comprised by the arrangement or understanding and knew the facts that meant that the arrangement or understanding was or contained a cartel provision.

Australia and New Zealand Banking Group Limited was knowingly concerned in the contraventions by Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited by reason of the conduct engaged in by its officer, employee or representative, Richard Moscati, which encouraged and assisted Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited to restrict or limit their trading in Australia and New Zealand Banking Group Limited shares on 7 August 2015 so that they did not, by the end of trading on that day, reduce the net number of those shares held by them. In engaging in that conduct, Richard Moscati intended to encourage and assist Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited to give effect to the cartel provision in or comprised by the arrangement or understanding and knew the facts that meant that the arrangement or understanding was or contained a cartel provision. He was also acting within the scope of his actual or apparent authority as an officer, employee or representative of Australia and New Zealand Banking Group Limited. His conduct and state of mind are accordingly attributable to Australia and New Zealand Banking Group Limited.

252    Once again, the prosecutor is not bound to use the precise wording of these suggested particulars. They are merely intended to give some indication of the level of particularity that is required in the circumstances. Any further details concerning the precise nature of Mr Moscati’s conduct can and should be included in the Notice.

Charges 9 to 11: Contravention of s 44ZZRF(1) by Citigroup and Deutsche Bank in respect of the 5%-7% Understanding and accessorial charges against Messrs Tuchman, McLean, Ormaechea and Richardson

253    Charges 9 to 11 essentially mirror charges 1 to 3 in the indictment, though they relate to the 5%-7% Understanding as opposed to the Friday Understanding. The only other differences in terms of the way the charges are pleaded is that the offences are alleged to have been committed “between about 7 August 2015 and about 8 August 2015” and that Mr Roberts is not charged as an accessory to the offence said to have been committed by Citigroup. The particulars of the arrangement or understanding relevant to these charges are the 5%-7% Understanding particulars. They currently appear in the indictment after charge 15. The particulars of the cartel provision relevant to these charges currently appear after charge 21.

Deficiencies in the pleading of charges 9 to 11

254    Given that charges 9 to 11 are pleaded in essentially the same way as charges 1 to 3, it is unnecessary to set them out here in full. The contentions by the accused in respect of the defects in the pleading of these charges were also essentially the same as those raised in respect of charges 1 to 3.

255    For the same reasons as those given in the context of charges 1 to 3, I am not persuaded that the particulars of the date on which the offences are alleged to have been committed are defective or deficient. That is despite the fact that, as already noted, the offences are alleged to have occurred between “about” 7 August and “about” 8 August 2015. Nor am I persuaded that the particulars of the place at which it is alleged the offence was committed are defective.

256    The Notice again makes it tolerably that the 5%-7% Understanding was made or arrived at during a telephone call that commenced at 10.38 am on 8 August 2015 (Sydney time): [157], [175]-[176] of the Notice. It is unclear why the prosecutor has, in those circumstances, chosen to particularise the offence as having been committed “between about 7 August 2015 and about 8 August 2015”, though it may be because some potentially relevant telephone communications between the accused also occurred on either side of the 10.38 am telephone call. Be that as it may, the clarity of the indictment would nevertheless be improved if the offences are particularised as having been committed on 8 August 2015. It would not necessarily follow that the communications that occurred before and after that date would somehow become irrelevant. Regard could most likely be had to those conversations to provide relevant context in respect of the 10.38 am telephone conference.

257    Particularising the offences as having been committed on 8 August 2015 would also avoid any potential confusion arising from the overlap between the dates on which it is alleged charges 1 to 3 and charges 9 to 11 were committed. Indeed, if the date of charges 9 to 11 remains as presently particularised, it may be that further particulars of the communications relevant to these charges need to be included in the indictment so as to avoid any potential for confusion as a result of the overlap of the dates in charges 1 to 3 and 9 to 11.

258    As was the case with charges 1 to 3, however, I am of the view that other aspects of the current particularisation of charges 9 to 11 are deficient and that the particulars should be supplemented. In summary, and for essentially the same reasons as those given in the context of charges 1 to 3, the following particulars should be included in the indictment.

259    First, charge 9 should include brief particulars of the names of the officers, employees or representatives of Citigroup and Deutsche Bank whose conduct in making or arriving at the alleged arrangement or understanding is alleged to be attributable to those corporations. Particulars of the factual basis upon which it is alleged that the conduct of those individuals is attributable to the respective corporations should also be included in the indictment.

260    Second, charge 9 should include a concise summary of the substance or effect of the conduct of the officers, employees or representatives which is said to have constituted or amounted to the making of the alleged arrangement or the arrival at the alleged understanding.

261    Third, charge 9 should include particulars of the fault element which corresponds to the physical or conduct element of the offence. That fault element is intention.

262    Fourth, charge 9 should include concise particulars to the effect that the officers, employees or representatives who engaged in the relevant conduct also had the relevant or required state of mind: intention to enter into the arrangement or arrive at the understanding on behalf of the corporation they represented and knowledge or belief of the facts that meant that the arrangement or understanding comprised or contained a cartel provision.

263    Fifth, charges 10 and 11 should include concise particulars, consistent with those provided in respect of charge 9, of the conduct of each of the individual accused that provides the basis for the allegation that they were concerned in, or a party to, the contraventions by Citigroup and Deutsche Bank. Concise particulars should also be provided of the state of mind of the individual accused relevant to the allegation that they were “knowingly” concerned in, or a party to, the contraventions.

264    The suggested particulars to charges 1 to 3 referred to earlier should provide some guidance as to the level of particularity or detail of the required particulars in respect of charges 9 to 11.

Charges 12 to 14: Contravention of s 44ZZRG(1) by Citigroup and Deutsche Bank in respect of the 5%-7% Understanding and accessorial charges against Messrs Tuchman, McLean, Ormaechea and Richardson

265    Charges 12 to 14 essentially mirror charges 5 to 7 in the indictment, though they involve the allegation of giving effect to the cartel provision in the 5%-7% Understanding as opposed to the cartel provision in the Friday Understanding. Given that they are pleaded in essentially the same way as charges 5 to 7, it is unnecessary to set them out here in full. The particulars of the arrangement or understanding relevant to these charges are the 5%-7% Understanding particulars, which appear in the indictment after charge 15. The particulars of the cartel provision relevant to these charges currently appear after charge 21.

266    One of the key differences between charges 5 to 7 and charges 12 to 14 is that the latter charges particularise the offences as having occurred over or during a relatively lengthy period of time: “about 8 August 2015 and about 30 September 2015”. There would appear to be some issues with that date range. It suffices to note two particular issues.

267    First, it would appear from the Notice that Citigroup sold all of its ANZ shares by 11 September 2015: [277]-[278] of the Notice. The Notice also does not appear to contain particulars of any conduct engaged in by anyone on behalf of Citigroup after 11 September 2015 which could readily be seen to amount to giving effect to the arrangement or understanding. That is no doubt an issue which the prosecutor should closely consider. It may be that 30 September 2015 has been pleaded as the end date simply because Deutsche Bank is alleged to have engaged in conduct which gave effect to the arrangement or understanding up to about 30 September 2015: see [286] of the Notice. That would not appear to be a particularly sound or reasonable basis for using that date in respect of charge 12, insofar as it concerns Citigroup, or in charge 13, which is the charge against Messrs Tuchman and McLean for being knowingly concerned in, or party to, the contravention by Citigroup.

268    Second, the accused noted that 8 August 2015 was a Saturday and the relevant securities exchanges were closed on that and the following day. More significantly, the Notice does not appear to include particulars of anything that was said to have been done for or on behalf of Citigroup to give effect to the arrangement or understanding before 10 August 2015. It was submitted that there was accordingly no basis for the date range to start on 8 August 2015, at least in respect of the charges relating to Citigroup or its officers. It may also be noted in this context that the Notice does not contain particulars of anything alleged to have been done for or on behalf of Deutsche Bank before 11 August 2015. It is unclear in those circumstances why the prosecutor has chosen to particularise charges 12 to 14 with a start date of 8 August 2015.

269    The prosecutor submitted that time was not of the essence in respect of any of the offences in the indictment and that there is no principle that requires a prosecutor to identify the precise time or date on which an alleged offence occurred. While it may be the case that the date of an offence is generally not material to an indictment unless it is an essential element of an offence, an indictment should nevertheless be “framed with all such specificity as to time, place, and circumstance as is possible and consistent with the purpose of the indictment, of alleging an offence but not of course the evidence in support of the count or counts contained in it”: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [160] (Callinan J). That said, in “framing the particulars of an offence the prosecution cannot be more precise than the evidence available for tender at the trial will permit” and “[i]f the evidence which the prosecution can adduce at trial will not fix precisely the date or place at which an offence occurred, the prosecution cannot give particulars that pretend to such precision”: WCG v The Queen (2007) 233 CLR 66; [2007] HCA 58 at [129] (Hayne and Heydon JJ).

270    The imprecision of the date range employed in charges 12 to 14 is not an entirely academic issue. If the date range for those offences commences as early as 8 August 2015, there is some scope for confusion arising from an overlap between the ‘give effect’ charges relevant to the 5%-7% Understanding and the ‘give effect’ charges relevant to the Monday Understanding (charges 19 to 21). The ‘give effect’ charges relating to the Monday Understanding involve conduct which is alleged to have occurred on 10 August 2015. While it may be, as submitted by the prosecutor, that conduct was engaged in on 10 August 2015 which involved giving effect to the 5%-7% Understanding (see for example [273] of the Notice) and separate conduct occurred on the same day in relation to giving effect to the Monday Understanding (see for example [248] of the Notice), there is nonetheless some scope for confusion. There are also some indications in the Notice that the alleged conduct which gave effect to the 5%-7% Understanding may not have commenced in earnest or in concrete terms until 10 or 11 August 2015: see for example [244] and [275] of the Notice. It follows that if close attention is given to the commencement date in relation to charges 12 to 14, there may be no potential overlap and no scope for confusion.

271    It is unnecessary, for present purposes, to finally resolve all of the issues concerning the particulars of the dates in charges 12 to 14. The prosecutor accepted that some amendments may need to be made to the particulars of the dates in these and other charges in the indictment. The prosecutor will no doubt give careful thought and consideration to providing the best particulars of the dates on which, or periods during which, the offences are alleged to have been committed. That said, many of the submissions advanced by the accused concerning the particulars of the dates in the indictment demand a level of precision and perfection that may not be possible given the evidence available to the prosecutor and may not be required in any event.

272    The accused raised a number of other complaints about the particulars of the dates in charges 12 to 14. Those complaints, for the most part, were unmeritorious. The following points should be made about those complaints.

273    First, as discussed earlier, the use of the word “about” in the particulars of the dates does not necessarily mean that the particulars are deficient or defective. That said, the imprecision introduced by the use of the word “about” should be avoided if the prosecution case permits more precision in terms of the date, or the dates between which, the offences were allegedly committed.

274    Second, the fact that the offences are alleged to have been committed over a relatively lengthy period of time also does not necessarily mean that the particulars are defective. An offence involving giving effect to a cartel provision may involve a course of conduct engaged in over period of time, potentially a lengthy period. That is the essence of the prosecution case in respect of charges 12 to 14.

275    Third, the fact that an offence of giving effect to an arrangement or understanding containing a cartel provision is particularised as having been committed over or during a period of time does not mean that the prosecutor is necessarily alleging that each of the accused did something on each and every day during that period. The contentions advanced on behalf of some of the accused that the date range in charges 12 to 14 was defective because they may have been incommunicado on certain days during that period, or because there were weekends during that period, or because the Notice does not suggest that they engaged in some conduct on every day during that period, have no merit and are rejected. It is tolerably clear from the Notice that the prosecution case in respect of charges 12 to 14 is that the trading in ANZ shares by Citigroup and Deutsche Bank on trading days throughout the period was in accordance or compliance with the 5%-7% Understanding (see [275] and [286] of the Notice). It is not, however, alleged that Messrs Tuchman, McLean, Ormaechea and Richardson were necessarily engaged in separate conduct relevant to the charges on every day throughout the charge period. The particulars of the dates in the charges in the indictment do not suggest otherwise and are not defective on that basis as contended by the accused.

276    Aside from the complaints concerning the date particulars, the contentions by the accused in respect of the defects in the pleading of these charges were essentially the same as those raised in respect of charges 5 to 7.

277    For the same reasons as those given in the context of charges 5 to 7, I am of the view that the particularisation of charges 12 to 14 is currently inadequate or deficient and should be supplemented. In summary, and for essentially the same reasons as those given in the context of charges 5 to 7, the following particulars should be included in the indictment.

278    First, charge 12 should include brief particulars of the names of the officers, employees or representatives of Citigroup and Deutsche Bank whose conduct in giving effect to the alleged arrangement or understanding is said to be attributable to those corporations. The particulars should also include the factual basis upon which it is alleged that the conduct of the individuals is attributable to the corporations.

279    Second, charge 12 should include a concise summary of the substance or effect of the conduct that is said to have constituted giving effect to the alleged arrangement or understanding.

280    Third, charge 12 should include particulars of the fault element which corresponds to the physical or conduct element of the offence. That fault element is intention.

281    Fourth, charge 12 should include concise particulars to the effect that the officers, employees or representatives of Citigroup and Deutsche Bank who engaged in the relevant conduct also had the necessary state of mind at the time: intention to give effect to the cartel provision in the arrangement or understanding and knowledge or belief of the facts that meant that the arrangement or understanding comprised or contained a cartel provision.

282    Fifth, charges 13 and 14 should include concise particulars, consistent with those provided in respect of charge 12, of the conduct of each of the individual accused that provides the basis for the allegation that they were concerned in, or a party to, the contraventions by Citigroup and Deutsche Bank. Concise particulars should also be provided of the state of mind of the individual accused relevant to the allegation that they were “knowingly” concerned in or party to the contraventions.

283    The suggested particulars to charges 5 to 7 referred to earlier should provide some guidance as to the required level of particularity and factual detail of the additional particulars in respect of charges 12 to 14.

Charge 15: ANZ and Mr Moscati aided, abetted, counselled or procured the contravention of s 44ZZRG(1) by J.P. Morgan

284    Charge 15 is in some respects similar to charge 8 in that it is alleged that ANZ and Mr Moscati are accessories to the contraventions involving giving effect to a cartel provision. In the case of charge 15, the relevant cartel provision is the one contained in or constituted by the 5%-7% Understanding, whereas charge 8 concerns the cartel provision in the Friday Understanding. There are, however, some other important differences between charge 8 and charge 15.

285    Charge 15 is pleaded in the following terms in the indictment:

Charge 15 The Prosecutor charges that between about 7 August 2015 and about 30 September 2015 at Sydney in the State of New South Wales and elsewhere, each of AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED and RICHARD MARC MOSCATI aided, abetted, counselled or procured J.P. Morgan Australia Limited to contravene a cartel offence provision namely section 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth), in that J.P. Morgan Australia Limited gave effect to a cartel provision contained in an arrangement or understanding with Citigroup Global Markets Australia Pty Limited and Deutsche Bank Aktiengesellschaft in relation to the supply of Australia and New Zealand Banking Group Limited shares, knowing or believing that arrangement or understanding contained a cartel provision.

Contrary to section 44ZZRG(1) with section 79(1)(a) of the Competition and Consumer Act 2010 (Cth).

286    There are three material differences between charge 8 and charge 15.

287    First, whereas charge 8 alleges, in effect, that ANZ and Mr Moscati are accessories to contraventions by Citigroup, Deutsche Bank and J.P. Morgan, charge 15 alleges that ANZ and Mr Moscati are accessories to a contravention by J.P. Morgan alone.

288    Second, as noted in the context of charge 8, the basis of the accessorial liability is pleaded differently in charge 15. Charge 8 alleges that ANZ and Mr Moscati were knowingly concerned in, or a party to, the contraventions by Citigroup, Deutsche Bank and J.P. Morgan (s 79(1)(c) of the C&C Act) whereas charge 15 alleges that ANZ and Mr Moscati aided, abetted, counselled or procured the contraventions by J.P. Morgan (s 79(1)(a) of the C&C Act). The reason for this difference in the pleading of charges 8 and 15 is not entirely clear. The prosecutor submitted that the different pleading reflected the “state of the evidence”. That was perhaps a reference to the evidence reflecting Mr Moscati’s somewhat more passive involvement in ‘giving effect to’ a cartel provision subsequent to making or arriving at the Friday Understanding: see [269]-[270] of the Notice. Somewhat inconsistently, however, the prosecutor also suggested that the accessorial liability provision in s 79(1)(c) of the C&C Act is “directly analogous to pleading aiding and abetting under [s] 79(1)(a)” of the C&C Act. If that is so, it is somewhat unclear why the prosecutor has chosen to employ s 79(1)(a) of the C&C Act in respect of charge 15.

289    The third difference is again the period during which the alleged offence is said to have been committed. The date range for charge 15 is controversial and was the subject of submissions on behalf of ANZ. As for the start date in the date range, it is somewhat unclear why the start date is 7 August 2015 given that the cognate accessorial charges against Citigroup, Deutsche Bank and their representatives (charges 12 to 14) have a start date of 8 August 2015. The start date is stranger still given that, as discussed earlier, the particulars of the making of the 5%-7% Understanding tend to suggest that it was not finally made or arrived at until 8 August 2015. It is difficult to see how someone could aid, abet, counsel or procure the giving effect to an arrangement or understanding before that arrangement or understanding was made or arrived at. The Notice also does not appear to provide particulars of any conduct engaged in by Mr Moscati before 8 August 2015 which could be characterised as aiding, abetting, counselling or procuring the giving effect to of the 5%-7% Understanding.