Federal Court of Australia

Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 11) [2021] FCA 842

REASONS FOR RULING

BROMWICH J:

1    After the conclusion of the evidence, and before the commencement of the prosecutor’s closing address, prosecution and defence counsel are required to seek any directions that they want to be given to the jury, or do not want to be given to the jury: see ss 11, and 12, Jury Directions Act 2015 (Vic). These are my reasons for a ruling given as a result of that process, on the contents of a particular aspect of a direction I gave to the jury during my summing up. The ruling was given following legal argument at the conclusion of the evidence and before commencement of closing addresses.

2    The Jury Directions Act is picked up as surrogate federal law by the operation of s 68(1) of the Judiciary Act 1903 (Cth): see Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) [2020] FCAFC 30; 275 FCR 342 at [147]. In Victoria, trial judges, both state and federal, generally must give the directions that are requested to the jury, and must not give directions that are not requested: ss 14 and 15 of the Jury Directions Act. The circumstances by which this adjudication becomes necessary demonstrates the great wisdom and criminal law expertise standing behind this legislation.

3    This dispute concerned the form of directions that should be given to the jury on the elements of charge 1 against the first accused, The Country Care Group Pty Ltd (Country Care Company), and charge 2 against the second accused, Mr Robert Hogan. Because charge 3 against Mr Cameron Harrison is an accessory offence to charge 2, this direction also applies to that charge.

4    The dispute relates to the direction that should be given on the component of the conduct element pertaining to the existence of an “arrangement or understanding”. This element applies to all of the charges in the indictment. As charge 1 and charge 2 are substantially the same, it is convenient to reproduce only charge 1, along with the particulars to charges 1 to 3, as follows:

Charge 1 The Prosecutor charges that between about 13 May 2014 and about 4 May 2016 at Mildura in the State of Victoria and elsewhere in Australia, THE COUNTRY CARE GROUP PTY LTD attempted to induce individuals and entities who were “members” of the Country Care Group from time to time during that period to contravene a cartel offence provision namely section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth) by making an arrangement or arriving at an understanding between and amongst members of the Country Care Group and COUNTRY CARE GROUP PTY LTD containing a cartel provision, knowing or believing that the arrangement or understanding contained a cartel provision.

Statement of Offence: Attempt to induce a person to contravene a cartel offence provision contrary to section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth) by virtue of section 79(1)(b) of that Act.

…

Particulars of “members” of the Country Care Group referred to in charges 1-3 Particulars of the said “members” are set out in the second schedule.

Particulars of the cartel provision referred to in charges 1-3

That “members” of the Country Care Group would not advertise for sale goods that The Country Care Group Pty Ltd contracted with the Department of Veterans Affairs to sell under the Mobility and Functional Support Tender at below the contracted prices.

5    There was no dispute about the state of the law as to what is required to constitute an arrangement or understanding. The dispute pertained to how that law should be applied to this case. In Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222; [2017] ATPR 42-540, Beach J observed at [477]:

First, an arrangement or understanding is something less than a binding contract or agreement (Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at [26] to [30] per Gray J and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) 141 FCR 183 at [54] per Merkel J). The concept of an understanding is a “broad and flexible” concept (Norcast S.ár.L v Bradken Ltd (No 2) (2013) 219 FCR 14 at [263] per Gordon J; ACCC v Leahy Petroleum Pty Ltd (2004) 141 FCR 183 at [54] per Merkel J). An “understanding” may be a looser concept than an “arrangement” (ACCC v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at [27]). An arrangement or understanding requires a consensus or a “meeting of the minds of the parties” under which parties assume obligations or give assurances or undertakings that they will act in a particular way. The “meeting of the minds” will usually embody a mutual obligation between the parties, but it is not required (Norcast v Bradken at [263]). Reciprocity of obligations is common but unnecessary. To establish such an arrangement or understanding it is sufficient that “the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct” (Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291 per Smithers J). It is sufficient that an arrangement or understanding creates moral obligations or obligations binding in honour only (Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 92 FCR 375 at [136]–[137]). An arrangement may be informal as well as unenforceable, with the parties free to withdraw from it or to act inconsistently with it notwithstanding their adoption of it (Norcast v Bradken at [263]). A mere expectation in a non-normative sense or a hope that something might be done or happen or that a party will act in a particular way is not of itself sufficient to found an arrangement or understanding (Trade Practices Commission v Email Ltd (1980) 43 FLR 383 at 385; ACCC v CC (NSW) Pty Ltd (No 8) at [141]). There will be no understanding where one party decides unilaterally to act in a particular way in response to a pricing manoeuvre by a competitor.

6    In Australian Competition and Consumer Commission v Australian Egg Corp Ltd [2017] FCAFC 152; 254 FCR 311, the Full Court stated:

[95]    In order for there to be an arrangement or understanding within s 44ZZRJ, there must be a meeting of minds and this involves a commitment to act in a particular way. A mere expectation as distinct from an assumption of obligation, assurance or undertaking to act in a particular way is not sufficient. Unlike an arrangement, an understanding can be tacit (Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375 (CC Pty Ltd) at [135]-[141] per Lindgren J; Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]-[47]; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at [28]-[39] per Gray J).

[96]    For some time, there has been a debate in the authorities as to whether a meeting of minds involving only one party assuming an obligation as distinct from mutual or reciprocal obligations can constitute an arrangement or understanding of a proscribed kind. The issue has not been authoritatively determined. The courts which have addressed the issue have consistently said that even if the undertaking of a unilateral obligation can constitute a contravening arrangement or understanding, such cases are likely to be rare (see, for example, Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 (Service Station Association) at 230-231 per Lockhart J, at 238 per Spender and Lee JJ; CC (NSW) Pty Ltd at [139] per Lindgren J). For reasons which we will give, it will not be necessary for us to resolve the issue in this case.

7    In relation the primary judge’s decision in Australian Competition and Consumer Commission v Australian Egg Corp Ltd [2016] FCA 69; 337 ALR 573, the Full Court further observed in Egg Corp as follows:

[102]    Insofar as the ACCC submitted that the primary judge erred in holding that mutuality or reciprocity of obligations was necessary, we reject that submission. The primary judge was aware that a contravening arrangement or understanding might not necessarily involve a reciprocity of obligations. In discussing the relevant principles, his Honour said (at [65]):

... The necessary consensus or meeting of minds need not involve, although it commonly will, a reciprocity of obligations.

[103]    The primary judge proceeded on the basis that in this case the attempted inducement must relate to an arrangement or understanding involving mutuality or reciprocal obligations because that was how the case was pleaded and conducted and, in a sense, is the natural way to view the allegations made by the ACCC.

8    This dispute involved a similar issue as to the nature of the prosecutor’s case on this topic.

9    The legal requirement for an arrangement or understanding to exist can be met as follows (key passages marked in bold):

(a)    On the prosecutor’s summary of the effect of the authorities:

To enter into an “arrangement”, or to arrive at an “understanding”, means to enter into or arrive at something less than a binding contract or agreement. To “arrive at” an understanding includes to reach or enter into an understanding. Both an arrangement and an understanding involve a meeting of the minds of the parties, which involves a commitment by the parties to the arrangement or understanding to act in a particular way, or to maintain a particular state of affairs. In order for there to be an arrangement or understanding, at least one party must assume an obligation, or give an assurance or undertaking that they will act in a particular way. There is no arrangement or understanding if one or more parties simply expects as a matter of fact that a party will act in a certain way. An arrangement or understanding may be informal, and may be unenforceable (for example, creating moral obligations but not legal obligations). The parties may be free to withdraw from an arrangement or understanding or to act inconsistently with it, notwithstanding their adoption of it.

(b)    On the summary of the authorities advanced by Country Care Company and Mr Hogan (the accused for the purposes of these reasons):

To make an “arrangement”, or to arrive at an “understanding”, is to make or arrive at something less than a binding contract or agreement. It may be informal. It may be legally unenforceable (for example, because it only creates moral obligations), with the parties being free to withdraw from it or to act inconsistently with it. However, an arrangement or an understanding requires a consensus or meeting of the minds among all of its parties and a commitment to act in a particular way, or to maintain a particular state of affairs. An ‘arrangement’ or an ‘understanding’, also requires that at least one party must assume an obligation, or give an assurance or undertaking that they will act in a particular way. An arrangement or understanding without reciprocal obligations would be rare. As a matter of law, there can be no arrangement or understanding if one or more parties simply held independent beliefs, or hoped or expected that a party would act in a certain way.

10    In applying the law as directed to their findings of fact, the jury needed to be satisfied beyond reasonable doubt of the existence of an arrangement or understanding for the prosecution’s case to succeed. There was no dispute that some version of the text above apart from the bold text in each version was appropriate to form part of the direction to the jury on the topic of arrangement or understanding. The nub of the dispute was whether or not some version of the text marked in bold above should form part of the direction to the jury upon the basis that it was, or was not, applicable to the prosecutor’s case. The accused contended that including such a direction amounted to a fundamental change in the prosecution case which could only be cured by a successful amendment to the indictment, a course which they said was not, by then, open. The prosecutor contended that there was no such change in the prosecution case and did not seek any amendment to the indictment.

11    It appeared to be common ground that should I decide to give a direction containing some version of the bold text above. It also appeared to be common ground that I should not express any view about whether or not such a situation is rare, as set out in the second last sentence of the summary by the accused, which reflects what said by the Full Court in Egg Corp at [96], reproduced above. In my view to do so would, or at least could, amount to an implied expression of what I thought about the evidence, which is generally proscribed: see McKell v The Queen [2019] HCA 5; 264 CLR 307. In any event, such a comment would not assist the jury in assessing what had occurred in this case.

12    In substance, the accused contended that the jury should be directed that they must be satisfied beyond reasonable doubt that the accused had attempted to induce an arrangement or understanding containing the particularised cartel provision between and amongst all Country Care Group members from time to time (CCG members) as alleged:

(a)    involving a consensus or meeting of the minds between each CCG member and Country Care Company;

(b)    by which each CCG member and Country Care Company would assume an obligation or give an assurance or undertaking to each other member and to Country Care Company.

13    There was only a dispute about [12(b)] above, insofar as it entails not just a unilateral obligation, but a multilateral obligation as between CCG members. There was no substantial dispute about the substance of the chapeau to [12] above, nor [12(a)] above. In the balance of these reasons it is convenient to refer to the phrase “assume an obligation, or give an assurance or undertaking” as simply assuming an obligation.

14    The multilateral agreement in [12(b)] above would create a higher threshold to be met in the prosecution’s case than is required by the authorities identified above. The accused asserted that it had always been the prosecutor’s case that this multilateral obligation had to be proved, and that the prosecutor had now changed the prosecution case to lower this threshold.

15    The prosecutor denied that it was ever the prosecution case that that a more stringent threshold than required by law needed to be proved and asserted that the obligation to be proved ran from each individual member to Country Care Company, not between members. The prosecutor contended that, quite apart from a proper reading of the terms of the indictment, this was reflected in the notice of the prosecution case and the evidence adduced in accordance with that notice.

16    I was called upon to make an objective assessment of the material before the Court to assess if the prosecutor did, as happened in Egg Corp, by the indictment or by other conduct, impose upon the prosecution case a more stringent threshold than required by law. To adopt the approach of the Full Court in that case, I have to assess whether that is the natural way to view the allegations made by the prosecutor, both in the indictment and beyond the terms of the indictment.

Did the indictment on its own create a higher threshold for the prosecutor to meet?

17    The first basis for the argument advanced by the accused turns on the terms of the indictment as reproduced above.

18    The historical central role of a charge, which includes a charge in an indictment, is to identify the “essential factual ingredients” of an offence: see John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519-521; see also Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [26] and Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303 at [82] and at [97]-[104]. A person charged with a criminal offence is “entitled 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”: Johnson v Miller (1937) 59 CLR 467 at 489.

19    These requirements are reflected in and modified by r 3.01 of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) (Criminal Rules) and also by provisions of the Federal Court of Australia Act 1976 (Cth) which require that the prosecution furnish, and the accused respond to, a notice of the prosecution case, and that provide for the amendment of indictments, both of which have featured in this proceeding. Rule 3.01 of the Criminal Rules relevantly provides 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.

20    The proper role of an indictment is therefore to set out the physical elements and fault elements derived from the provision or provisions creating the offence which the accused is alleged to have committed.  Thus, for example, offences alleging a conduct physical element do not ordinarily allege the corresponding fault element of intent, because that is not commonly set out in the offence-creating provision, but rather is the default fault element provided by s 5.6(1) of the Criminal Code.  The jury is directed by the trial judge that they must find that any such conduct was intentional, in that the person meant to engage in that conduct ( Criminal Code s 5.2).  The obligation to prove intention flows from the operation of the law, not from the express terms of the indictment.    

21    A charge in an indictment should therefore ideally follow the language of the offence-creating provision(s) as to the offence’s stipulated physical and fault elements. The charge should state what the accused person is alleged to have done (in the language of the Criminal Code, their conduct) by reference to those elements. This should include any stipulated circumstances in which they are alleged to have engaged in that conduct, and also any stipulated result from that conduct, along with any stipulated state of mind for either. An indictment ordinarily should not include any legal threshold or test required to be met by law, especially case law, unless that emanates from the language of the offence-creating provision(s). 

22    The legal requirements to be met in relation to any element, going beyond the terms of that element and the corresponding allegations addressing it, do not need to be in the indictment. To the contrary, generally speaking they should not be in the indictment, not least because that could have the effect of conflating the fact-finding role of the jury with the role of the trial judge as the sole judge of the law. This trial has been conducted with those long-established legal requirements in mind, and they necessarily form an essential part of the directions to be given to the jury, instructing them on the law that they must apply to the facts as they find them.

23    The indictment in this case was therefore required to set out the nature of the allegations as to the offence by reference to the provision or provisions creating the offences charged, identifying the elements of conduct, circumstance and, where applicable, state of mind. The indictment, in keeping with long-standing principles at common law, did not need to spell out the facts or the evidence. It is readily apparent from what follows that this is precisely what has been done in drafting charges 1 and 2 in the indictment.

24    The substantive offence in charges 1 and 2 in the indictment was created by s 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth) (CCA), a cartel offence provision. The accused were alleged to have contravened that provision by attempting to procure a contravention of that provision by the operation of s 79(1)(b) of the CCA. Section 79(1)(b) provides, inter alia, that a person who attempts to induce a person to contravene a cartel offence provision is taken to have contravened the substantive cartel offence provision. Charges 1 and 2 in the indictment were drafted by reference to and conformed with s 44ZZRF(1) and 79(1)(b) by alleging that the company:

(a)    “attempted to induce individuals and entities who were members of the Country Care Group from time to time” during the charge period to “contravene a cartel offence provision”, namely s 44ZZRF(1);

(b)    “by making an arrangement or arriving at an understanding between and amongst members of the Country Care Group and COUNTRY CARE GROUP PTY LTD containing a cartel provision, knowing or believing that the arrangement or understanding contained a cartel provision”;

(c)    except that:

(i)    the words “individuals and entities who were members of the Country Care Group from time to time”; and

(ii)    the words “between and amongst members of the Country Care Group and COUNTRY CARE GROUP PTY LTD”,

each depart from the statutory text to describe particular things alleged as the foundation of the charge. These convey aspects of the “essential factual ingredients” of the alleged offence, being the participants to the alleged arrangement or understanding.

25    The prosecutor contended that the additional words in [24(c)(ii)] above went no further than to identify the parties to the alleged proposed arrangement or understanding, and do not refer to any legal test required to be met by the evidence to constitute, at law, an arrangement or understanding. Upon that basis, the prosecutor sought a legal direction to be given to the jury which, it was common ground, reflected the state of the law on that topic, as set out at [9(a)] above.

26    The accused contended that the use of the phrase “between and amongst”, in the context of the indictment as a whole, including the reference to the relevant participants set out in the phrase at [24(c)(i)] above, conveyed not just who the parties were to the alleged arrangement or understanding, but went further to allege that each such member and Country Care Company would assume an obligation to each other member, in addition to an individual obligation to Country Care Company. That is, the accused asserted that these words do not just set out the parties to the alleged arrangement or understanding, but also the legal threshold to be met in proving that the offence was committed. They asserted that through these words the prosecutor assumed the additional legal burden not just of proving an attempt to induce a unilateral obligation flowing from each individual member to Country Care Company, but also a multilateral obligation flowing between members.

27    I was, and still am, unable to see how the above argument advanced by the accused could possibly be correct. As already explained by reference to long-standing High Court and intermediate appeal court authority, the function of an indictment is to state the essential factual ingredients of the allegation made by reference to the offence-creating provision or provisions. An indictment is not meant to, let alone required to, describe the case that is to be brought to prove the allegation, nor the evidence to be adduced to support that case, nor the legal tests required to be met (unless stated in the offence creating provision(s)). The approach of the accused required the indictment to be read in a way that meant that it alleged more than the required essential factual ingredients of the offence charged, giving the phrase “between and amongst” a meaning that it not only did not have, but could not have, of describing also the legal threshold required to be met by the prosecution case.

28    It follows that the use of the phrase “between and amongst” in the indictment, in accordance with legal principle, could and should only be properly be understood, objectively and reasonably and in the context of the rest of the indictment and the particulars, as identifying who Country Care Company and Mr Hogan were alleged to have attempted to procure to be parties to the proposed arrangement or understanding, including the relationship between those proposed parties. The allegation in charges 1 and 2 in the indictment was that Country Care Company and Mr Hogan attempted to procure an arrangement or understanding between and amongst the members of the Country Care Group (from time to time during the charge period) and Country Care Company not to advertise for sale goods that Country Care Company contracted with the Department of Veterans’ Affairs (DVA) to sell under the Mobility and Functional Support (MFS) tender at below contracted prices. But the indictment did not, and should not have, alleged what the requirements were for such an arrangement or understanding to be established at law, any more than a drug import charge should include an allegation of what is necessary for an import to have taken place at law. 

Did the prosecution case change?

29    Given that an indictment does not fulfil the function of stating the legal tests which apply to the prosecution case unless that is to be found in the elements stated in the offence-creating provision(s), it is inherently difficult, although not necessarily impossible, to derive from the terms of an indictment alone any change of case. That is why a change of case allegation commonly turns on a departure from particulars given, or from a prosecutor’s opening, for example setting out in closing an alternative basis for liability for the first time: see, e.g., R v Campbell [2008] NSWCCA 214; 73 NSWLR 272 at [27], in the context of [25]-[36].

30    The indictment in this matter was supplemented by the notice of the prosecution case. Such a notice is both conceptually different and fulfils a different function to an indictment, providing details as to how the allegations in the indictment are intended to be proved by reference to the evidence proposed to be adduced, and the related facts it is said this evidence will establish. Even then, such a notice will not necessarily in terms address the legal thresholds required to be met for a charge to be proved beyond reasonable doubt.

31    If the prosecutor had intended to rely upon a legal threshold that was higher than that imposed by law, it is to be expected that there would have been some express or at least strongly implied statement to that effect within the notice of prosecution case, or an equivalent document, that would reasonably lead to that conclusion being reached by the accused. An error or misunderstanding by the lawyers for the accused as to the effect of what was being conveyed at law will not suffice to constitute a change of case.

32    I therefore turn to the other materials upon which the accused rely, supplemented in places by aspects of the same documents relied upon by the prosecutor, to ascertain whether the prosecutor’s case changed from alleging unilateral arrangements, to alleging multilateral arrangements.

33    The accused first relied upon the notice of prosecution case in relation to the first three charges of the indictment, referring to the version of the indictment dated 10 March 2021. For completeness, I note that the notice of the prosecution case altered several times during the course of this proceeding. In relation to the paragraphs of the notice relied upon by the accused:

(a)    in the summary part, being paragraphs 1 to 13, especially paragraphs 6-9, and 11, they have not changed since the latest version of the notice filed and served on 28 August 2020, approximately seven months before the commencement of the trial; and

(b)    in the more detailed part at paragraphs 37, 49, 55 and 63, they have not substantially or relevantly changed since the first notice of prosecution case which was filed and served on 17 and 18 June 2019, nearly two years before the commencement of the trial.

34    Paragraphs 6-9 and the chapeau to paragraph 11, which is followed by particulars which do not add anything, were as follows (footnotes omitted):

[6]    From May 2014, HOGAN attempted to secure the agreement of members to refrain from advertising goods at prices below the Contracted Prices. He did this by engaging in a course of conduct directed to that end. This conduct included making addresses to the CCG membership at conferences, communications with individual members, and requesting that CCG members sign a written sub-contracting agreement with CC Co which included a clause restraining them from advertising products at less than the Contracted Prices.

[7]    In engaging in this course of conduct, HOGAN was attempting to induce CCG members to reach a common understanding, that it was in their mutual interest that the DVA not discover that products being supplied through CC Co under the MFS Tender were available to the general public at a lower price directly from CCG members. In endeavouring to persuade CCG members to reach this understanding, HOGAN was conscious that the advertised price of a single member created risk for the whole group. As a result, he attempted to persuade, or to arrange for, all members of CCG to act in a consistent fashion by not advertising their products at prices that were lower than the Contracted Prices.

[8]    The understanding or arrangement HOGAN attempted to induce contained a cartel provision within the meaning of s 44ZZRD(1) of the Competition and Consumer Act 2010 (Cth), to the effect that the CCG members would not advertise goods that CC Co contracted to sell under the MFS Tender for prices below the Contracted Prices.

[9]    The understanding or arrangement HOGAN attempted to induce:

(a)    was not a contract; and

(b)    was not (and would not, had it been made, have been) intended or reasonably believed by HOGAN, CC Co or the CCG members which would have been a party to it, to have been a contract.

…

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

35    None of paragraphs 7-9 or 11 of the notice of the prosecution case assist the accused in their assertion that the alleged obligation, assurance or undertaking was multilateral as they contend. Paragraph 6 is directly opposed to that contention, because this is the only part that can be seen to address the question of the obligation, assurance or undertaking, by way of a proposed contractual obligation, and was directed only in favour of Country Care Company. Of course, in context, each such member would likely be aware that the same was being sought from all the other members, but not from member to member.

36    Paragraphs 37, 49 and 55 of the notice of the prosecution case were as follows (footnotes omitted):

[37]    By at least November 2012, HOGAN had concerns about the DVA becoming aware of goods supplied through CC Co under the MFS Tender being available at a lower price directly from CCG members. On 15 November 2012, HOGAN sent an email to other Peak Care members expressing concern:

[t]hat if we are seen to be discounting our products ... much lower than the current DVA price list, then if DVA get a whiff of it, they may then ask us to review the price that we offer them? ... We need to ensure that we are holding our margins on those DVA products as I don’t want them [the DVA] coming back to us and asking for better pricing...

…

[49]    HOGAN was conscious that if the DVA discovered a lower available price on a product from a single CCG member, that might compromise the profitably of that product line for CC Co and CCG members. He reflected this concern in his presentation, which was an attempt to generate a consensus among all CCG members present that they needed to act consistently to address this risk and protect their collective interests. This description of HOGAN’s purpose is supported by:

(a)    the forum in which the message was delivered;

(b)    the manner in which it was delivered;

(c)    the matters HOGAN used in his slides and oral presentation;

(d)    the language HOGAN used in referring to those matters; and

(e)    the nature and rationale for the action he was prescribing.

…

[55]    The message delivered by HOGAN at the 13 May 2014 conference, that CCG members should not advertise their products at prices below the Contracted Prices was repeated by him to CCG members on numerous other occasions. The consistency with which HOGAN raised the matter supports the Crown case that he was not simply reminding CCG members of something which would be in their individual interest. He was urging them to adopt his prescription for marketing as a rule, by which they should all abide, because it was in their collective interest to do so.

37    Those paragraphs were being directed to the commitment being sought, and how it was sought, and not to the issue of an obligation, assurance or undertaking.

38    Paragraph 63 of the notice of prosecution case was as follows:

From its inception, this clause was part of the continuing attempt by HOGAN to induce an understanding or arrangement amongst CCG members, that they would all endeavour to preserve their profit margins under the DVA MFS Tender by refraining from undercutting DVA prices in their marketing. In its terms, it gave individual CCG members a level of responsibility for “the market value” of products sold under the MFS Tender, and referred to those products as being items supplied by the “Country Care Group”. The terminology of the original draft of clause 2 supports the Crown case that the clause was designed and intended as a device to induce all members of CCG, collectively as well as individually, to comply with its terms. The obligation the clause created for each individual member was to play their part. This would have been readily understood by CCG members, particularly in light of HOGAN’s repeated exhortations (referred to above) to follow the approach which the clause prescribed.

39    Paragraph 63 was directed to the terms of a draft contract proposed to be circulated and subsequently entered into individually between each of the CCG members and Country Care Company, containing the following proposed clause, which was in stronger terms than the draft ultimately circulated (and in fact signed by about half of the Country Care Group members):

Online Marketing. Member shall ensure that efforts to promote Country Care Group DVA contracted items do not lessen the market value of those items. If the member advertises a Country Care Group contracted item online, the pricing must be greater than or equal to the DVA contracted price.

40    Read in that context, paragraph 63 was directly opposed to the contention by the accused, because, again, it is addressing the question of an obligation, assurance or undertaking, by way of it being contemplated that individual members would be asked to sign a contract in favour of Country Care Company, such that each such member would be aware that the same was being sought from each other member: “[t]he obligation the clause created for each individual member was to play their part”.

41    As already observed, the law requires that such an arrangement or understanding, if implemented, be shown to involve a meeting of minds or consensus as to what was to be done, and the assuming of an obligation to do so by at least one of the parties to it. The notice of the prosecution case very clearly stated that Country Care Company and Mr Hogan sought to have each of the CCG members enter into individual subcontracts with Country Care Company which included the clause reproduced at [40] above. This was equally obvious on the evidence both proposed to be adduced and in fact adduced during the trial. It was never the prosecutor’s case that there was to be any equivalent obligation flowing between the individual Country Care Group members.

42    The next item upon which the accused relied is a letter from the office of the Commonwealth Director of Public Prosecutions to the solicitors for the accused dated 26 July 2019, responding to a request for further particulars. Paragraph 2 of the letter states, under the heading “Paragraph 1: Parties to the proposed arrangement or understanding”:

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

On its face, the above paragraph supported the prosecutor’s asserted position of doing no more than identifying the parties to the arrangement or understanding, and indeed made it tolerably clear that this was what was being alleged in the indictment.

43    The next item upon which the accused relied was a comment made during the course of the appeal to the Full Court on 3 February 2020 where senior counsel then appearing for the prosecutor stated:

And it will be the prosecution’s case that the accused intended to induce a mutual commitment between and amongst CCG members and between CCG members and CCG itself not to advertise any of the tender goods at below the contracted prices.

I was and still am unable to see how this advanced the position of the accused. It addresses the issue of commitment in the context of the issues on the appeal, but says nothing, either way, on the issue of obligation, assurance or undertaking. It certainly did not suggest a higher threshold was being adopted as contended by the accused.

44    The next item upon which the accused relied concerns the prosecutor’s opening address to the jury, during which no express reference was made to the nature of the obligations alleged being only unilateral from CCG members to Country Care Company. I was and still am unable see how the absence of a statement on this precise topic can be any sound basis for inferring that the prosecution case was as contended by the accused. As discussed below, the accused contend that they did express a different understanding of the case during their opening. However, in my view that was in terms that were so ambiguous that this was not apparent to me, and I accept was not apparent to the prosecutor. But in any event, the contention was misconceived.

45    On review of the prosecutor’s opening, the continued reliance on the proposed subcontracts between Country Care Company and individual CCG members was apparent. The prosecutor opened to the jury upon the basis that the prosecution case was that there were three ways in which Country Care Company and Mr Hogan urged CCG members to agree not to advertise at prices lower than the DVA contract prices, namely:

(1)    speaking at conferences to members collectively;

(2)    speaking to a number of members individually; and

(3)    preparing and sending written contracts to CCG members individually, “which required group members not to advertise goods below the contracted prices”.

46    In particular, the prosecutor made it clear that reference was being made to individual pro forma contracts between Country Care Company and individual CCG members, some of which were returned signed. In the course of describing that third means of agreement concerning the contracts, the prosecutor said that it meant that “each member must ensure that they do not advertise their products to the general public at less than the DVA contract prices”. The prosecutor declined an invitation by senior counsel for Country Care Company to make it clearer that the contracts in question were individual contracts, making it clear that, at the time, it was fully appreciated that the requirement to which reference was being made was through individual bilateral contracts, consistently with the notice of the prosecution case as considered above.

47    The next item relied upon by the accused concerned an issue raised by senior counsel for Country Care Company during the course of the prosecutor’s opening address on 16 March 2021, in the absence of the jury, during the morning tea adjournment. In relation to an aspect of the prosecutor’s opening address, senior counsel raised three issues, the third of which was:

And then finally, your Honour, the course of conduct was described as these instances of conduct, eight together, are a single course of conduct were – were consistently directed at members to enter into or breach and agreement or understanding with Country Care Company. And your Honour is well aware that, in fact, the agreement, or arrangement – sorry, the arrangement or understanding is as between the members and Country Care Company and so there must be very careful articulation of the nature of the arrangement or understanding that’s in the indictment and is identified as that – that looseness of language when looking at a contract which is, in fact, between Country Care, an individual member is not the arrangement or understanding which is in the indictment. So I’m not sure any of that needs to be corrected, but I certainly wanted to flag it with Dr Bigos in terms of how it has been put.

48    The above passage is to be read with the prosecutor’s response to the jury immediately upon resumption:

Now, I just want to recap something I said before the break. I mentioned the words “arrangement or understanding,” and you can see that in the indictment which you have, for example, in charge 1, charge 1 about six lines down says:

Making an arrangement or arriving at an understanding between and amongst members of the Country Care Group and Country Care Group Pty Ltd.

So an arrangement or understanding between and amongst Country Care Group members and Country Care Company. So that’s the arrangement or understanding we’re talking about.

49    Again, I was and still am unable to see how this advanced any basis for inferring that the prosecution case was changed as contended by the accused, as this goes no further than repeating that part of the indictment and stating, in effect and in context, that this is referring to the parties to the arrangement or understanding.

50    The next item upon which the accused relied is a statement made during the opening address to the jury made on behalf of the Country Care Company on 17 March 2021. The accused relied upon the fact that no objection was taken or correction sought to this statement. Senior counsel for Country Care Company said (emphasis added):

First, for charge 1 against my client, the prosecution says I attempted to induce all the members to make an arrangement or arrive at an understanding together, and with Country Care that contained a cartel provision. Although Dr Bigos didn’t mention it yesterday, for you to find there was an arrangement or an understanding you will have to be satisfied that there was an attempt to induce all of the members and my client together to reach a meeting of the minds. So they were all going to agree on the same thing. And that all the members and my client would make some kind of commitment to each other and accept some kind of obligation.

51    The accused essentially contend that the prosecutor should have corrected this statement, as an expression of the accused’s understanding of the prosecutor’s case, if it was different from the case being run. The problem with reliance on this passage is that, even re-reading the transcript, it is not clear that the word “all” in the last sentence applied only to the commitment, or whether it applied to both the commitment and to the obligation. Further, it was not, and still is not, clear to me whether this was stating what the prosecutor’s case was, or was only a statement of the defence response, seeking to persuade the jury to raise the threshold that they would need to be satisfied about.

52    Even if it is incumbent upon the prosecutor to raise any perceived error on the part of the accused in the understanding of the prosecution case, which is doubtful as a general proposition, something as inherently unclear as the statement relied upon above could not reasonably trigger any requirement to do so.

53    The final item relied upon by the accused was what was also said in the course of the opening address to the jury on behalf of Country Care Company, also on 17 March 2021. The passage relied upon is in bold below (verbatim):

What that evidence actually is is very important. You will recall what his Honour said about carefully evaluating the evidence. Focus on what members are able to recall was said at the meetings. Country Care’s case is that you could not be satisfied that Mr Hogan instructed any member what to do at these meetings, or that he sought to get members to make a commitment to each other and to my client about any course they may take individually. The second kind of evidence the prosecution relies upon in proof of charge 1 relates to the actual draft contract. That contract was developed by my client with its lawyers so that each individual member had a contractual relationship with Country Care.

Again, each of these contracts between my client, Country Care, and an individual member. That’s important because the prosecution’s case is that the arrangement or understanding was, as it says in the indictment between and amongst members. That is an element of this offence that the prosecution must prove beyond reasonable doubt. When you see these contracts it will be pretty clear on the face of the contracts that there was nothing between and amongst. Instead, what you will see is lots and lots of individual contracts that was between my client and each network member. So that’s the first issue in contention.

54    I would not read that bold passage as amounting to anything more than the defence case that Mr Hogan’s conduct did not go far enough. It does not reveal, let alone clearly reveal, any misunderstanding that the prosecution case, inconsistently with a correct understanding of the indictment and a reasonable view of the evidence and the notice of the prosecution case, that the obligation, and not just the parties to the arrangement or understanding, was to be multilateral as between all of those parties.

55    To the extent that counsel for the accused have derived an understanding of the indictment that is contrary to the legal principles set out above, responsibility for that cannot fairly be sheeted home to the prosecutor. It may be different if such an error was clear and obvious, especially if junior or inexperienced counsel are involved, but that it not the present case.  Otherwise, an opening address on behalf of an accused, which is not at all common in criminal trials, should be understood to be no more than an outline of the defence case, generally designed to focus the minds of the jury on the real issues in dispute.

56    In relation to such a defence address, it is to be expected that the prosecutor will have a different view of what will be shown to have taken place on the evidence to be adduced.  That difference may be as to the effect of the law, or as to the characterisation of what has taken place.  In this case, on the most beneficial reading of the comments by senior counsel for Country Care Company that have been identified, an aspect of the defence case was that all of the proposed parties to the alleged arrangement or understanding not only had to have a meeting of the minds, but also all had to assume an obligation to each of the other members as well as Country Care Company to implement what was proposed, before the jury could be satisfied beyond reasonable doubt as to guilt. 

57    The prosecutor was entitled to disagree with the view of the case advanced by the accused, without pointing that out.  The very point of a defence opening is to convey to the jury that the accused has a different approach to what they are alleged to have done, and to what must be proved to establish guilt.  That is at the core of adversarial criminal proceedings.  I accept the assertion of senior counsel for the prosecutor during the course of legal argument that he did not understand that senior counsel for Country Care Company, and thereby senior counsel for Mr Hogan, had misunderstood the prosecution case, not least because that is not only an objectively reasonable way to interpret what was said, but in my view the only objectively reasonable way to interpret what was said. 

Delivery of the ruling and reopening of the change in case argument

58    The ruling I gave reflected the reasons set out above. The ruling was delivered via email, sent by my associate to all of the solicitors acting in the matter, at 11.44 pm on Saturday 8 May 2021. The ruling was communicated in the following terms:

Justice Bromwich has asked me to advise the parties that there has not been any change in the prosecution case as alleged by the accused. Accordingly, the directions to the jury will include a direction to the effect that, in order for there to be an arrangement or understanding, at least one party must assume an obligation or give an assurance or undertaking that they will act in a particular way.

59    The ruling was delivered at this time and in this matter to give the parties the most notice and time possible to prepare any relevant submissions on directions during the following week of the trial. It also reflected the extended working hours and level of effort expended by all of the solicitors who worked on this matter.

60    In the week after I had given my ruling on the alleged change of case, Country Care Company and Mr Hogan attempted to reopen the issue. This was pursued on behalf of both Country Care Company and Mr Hogan in a manner and in terms that were regrettable when due regard is had to the privileges and duties of counsel as clearly articulated almost 60 years ago in Ex parte Bellanto; Re Prior (1962) 63 SR (NSW) 190 at 204-205. It suffices to say that nothing was advanced to persuade me to reach a different conclusion. In particular, I am satisfied that correspondence from the prosecutor to the solicitors for the accused in May 2020, in relation to the joint venture exception or defence did not as asserted, when fairly and objectively read, amount to any statement of a different case being advanced. It should be pointed out that this correspondence was, quite properly, brought to the Court’s attention by the prosecutor, not by the accused.

61    Apart from the misinterpretation of the meaning of the indictment, and the abovementioned correspondence raised by the prosecutor as a matter of fairness, the accused did not in the course of extended additional legal argument point to anything emanating from the prosecutor which indicated that it had embraced a legal standard for the proof of the existence of an arrangement or understanding which required that more than one party to the proposed arrangement or understanding would have assumed an obligation in relation to that arrangement or understanding. In the absence of any such overt statement, and without the error in the understanding of the indictment, it is difficult to understand what rational basis there was for ever concluding that was so. That is especially so, as there was not anything in the evidence to indicate that this was likely.

62    To the contrary, the evidentiary case was clearly in favour of obligations being sought only from individual Country Care Group members in favour of Country Care Company. It follows that the basis for the accused forming the view that the prosecution case consisted of an obligation emanating not just from members towards the company, but also between members, turned on a misunderstanding of the indictment, flowing from an apparent misapprehension of the role, purpose and requirements of an indictment.

Conclusion

63    For the foregoing reasons, I was not satisfied that there has been any change in the prosecution case as alleged. Accordingly, written directions were provided to the jury (along with verbal directions to the same effect) which stated (note: defined terms in the written directions were in bold and italics):

To make an arrangement, or to arrive at an understanding, is to make or arrive at something less than a binding contract. It may be informal. It may be legally unenforceable, for example, because it only creates moral obligations. The parties may be free to withdraw from an arrangement or understanding or to act inconsistently with it. However, an arrangement or an understanding requires a consensus or meeting of the minds among all of its parties and a commitment to act in a particular way, or to maintain a particular state of affairs. An arrangement or an understanding also requires that at least one party must assume an obligation, or give an assurance or undertaking that they will act in a particular way. There can be no arrangement or understanding if one or more parties simply held independent beliefs, or hoped or expected that a party would act in a certain way.

You must be satisfied beyond reasonable doubt that Country Care Company attempted to induce an arrangement or understanding containing the Charges 1-3 Alleged Provision:

(a)    involving a consensus or meeting of the minds between and amongst CCG Members and Country Care Company;

(b)    by which at least one party must assume an obligation, or give an assurance or undertaking that they will act in a particular way.

Associate:

Dated:    23 July 2021