FEDERAL COURT OF AUSTRALIA

Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 5 – Indictment) [2021] FCA 1345

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet on the Court’s website. This summary is also available there.

The accused in this matter were first charged with cartel offences in the Competition and Consumer Act 2010 (Cth) in June 2018 by the filing of court attendance notices in the Local Court of New South Wales. The committal proceedings which followed in that Court were long, drawn out and ultimately, it would seem from what has transpired since, fairly pointless. On 8 December 2020, the accused were committed to this Court for trial.

At the first case management hearing in this Court, which occurred on 15 December 2020, the prosecutor, the Commonwealth Director of Public Prosecutions, was ordered to file an indictment on or before 1 February 2021. That order was complied with and an indictment was filed on 1 February.

The accused promptly filed interlocutory applications in which they sought orders that the charges against them in the indictment be quashed on the basis that they were defective and that they be discharged. The accused argued that the charges did not sufficiently describe the nature of the offences that they were alleged to have committed because, for the most part, the charges were entirely bereft of particulars and simply repeated the words of the relevant offence provisions.

In a judgment handed down on 7 July 2021, I upheld most of the complaints by the accused concerning the charges in the indictment. I did not, however, quash the indictment or order that the accused be discharged. Instead, I ordered that the prosecutor file a new indictment which remedied the defects identified in the judgment.

The prosecutor in due course filed a new indictment. The accused promptly filed interlocutory applications in which they again sought orders that the charges against them in the indictment be quashed and that they be discharged. The accused contended that the charges in the new indictment did not remedy all of the defects identified in the previous judgment or were defective for other reasons. It is those applications that are the subject of the judgment of which this is a summary.

For the reasons set out fully in the judgment, I have again upheld many of the complaints by the accused concerning the pleading or particularisation of the charges in the indictment. For the most part, the defects are fairly technical and would appear to be essentially a product of the extraordinarily difficult and complex nature of the offence provisions in question. They are, nonetheless, material defects that must be remedied if this prosecution is to proceed. In the case of two of the accused, Australia and New Zealand Banking Group Limited (ANZ) and Mr Richard Moscati, the defects are more substantial and reflect a significant, though imperfectly pleaded, shift in the prosecutor’s case.

In light of the finding that the indictment was defective, the critical question for the Court was, in essence, whether the indictment be quashed and the accused be discharged, or whether the prosecutor should be given another opportunity to file an indictment which complies not only with the Court’s rules, but with the well established common law principles that require charges in an indictment to describe the essential factual ingredients of the offences with reasonable particularity.

It is, to say the very least, most unfortunate that, despite three years having passed since the accused were first charged, the prosecutor has been unable to properly plead and particularise the charges against the accused. That is all the more so given that the evidence before the Court reveals that the accused have been complaining about the particularisation of the charges effectively since they were first charged. As has already been noted, the prosecutor’s difficulties may in part be explained by the exceptional complexity of the offences in question. That, however, is no consolation to the accused who have had these serious charges, which concern events which occurred as long ago as 2015, hanging over their heads now for over three years. It is also a matter of considerable concern that the indictment is unsettled in circumstances where the trial of the accused has been listed to commence before a jury at the beginning of May next year – which is only about six months away.

The resolution of the question as to the appropriate relief involves a balancing exercise. The object of the balancing exercise is to ascertain where the interests of justice lie. On the one side of the scales is the interests of the accused and the prejudice or unfairness they will or may suffer if the prosecutor is given another opportunity to formulate the charges against them. On the other side of the scales is the maintenance of public confidence in the administration of justice and in particular the substantial public interest in having those who are charged with serious criminal offences brought to trial.

For the reasons full explained in the judgment, I have determined that, at this stage at least, the indictment should not be quashed and the accused should not be discharged. Rather, the prosecutor should be given another opportunity to file a valid indictment. In summary, on the one hand, I am not persuaded that the accused will suffer any material or irremediable unfairness or prejudice if the prosecutor is permitted to correct what are, for the most part at least, fairly technical deficiencies in the particularisation of the charges; on the other hand, I am satisfied that there is a significant public interest in this matter proceeding to trial if a valid indictment can be found and no other substantive application by the accused is upheld.

It should finally be noted, by way of postscript, that after the Court advised the parties that this judgment was to be handed down today, and after the reasons for judgment had been effectively finalised, the Court was notified that the prosecutor no longer intended to proceed with the prosecution of ANZ and Mr Moscati. It may be taken, therefore, that the indictment that will be filed by the prosecutor following this judgment will not include any charges against ANZ and Mr Moscati. The reasons for judgment were not altered at all to reflect that late development.

JUSTICE MICHAEL WIGNEY

3 November 2021