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

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

File number: NSD 1316 of 2020

Judgment of: WIGNEY J

Date of judgment: 7 July 2021

Catchwords:
CRIMINAL LAW – federal crime – indictment filed pursuant to s 23BF of the Federal Court of Australia Act 1976 (Cth) and r 3.01 of Federal Court (Criminal Proceedings) Rules 2016 (Cth) – where accused investment banks are alleged to have made an arrangement or arrived at an understanding containing a cartel provision contrary to s 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth) – where accused investment banks are alleged to have given effect to a cartel provision contained in an arrangement or understanding contrary to s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) – where officers, employees or representatives of the investment banks are alleged to have been knowingly concerned in, or a party to, the contraventions of s 44ZZRF(1) and s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) pursuant to s 79(1)(c) – where a bank and its officer, employee or representative are accused to have aided, abetted, counselled or procured one of the investment banks to contravene s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) pursuant to s 79(1)(a)

PRACTICE AND PROCEDURE – interlocutory application – application objecting to indictment on the basis of formal defects apparent on the face of indictment pursuant to s 23CP(1)(a) of the Federal Court of Australia Act 1976 (Cth) – application seeking to quash each count in indictment and to discharge accused on each charge pursuant to ss 23, 23CB(1), 23CP(2)(a)(i)-(iv) of the Federal Court of Australia Act 1976 (Cth) – whether statements of offences in indictment are sufficient – whether nature of alleged offences described with “reasonable particularity” in accordance with r 3.01(4) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) – whether statements or particulars of offences in indictment sufficiently identify the essential factual ingredients of alleged offences – whether formal defects were apparent on face of indictment – where indictment was found to have not identified the essential factual ingredients of alleged offences – where deficiencies in indictment can be remedied without causing significant prejudice to the accused – prosecutor to file new indictment to remedy identified deficiencies pursuant to s 23BH of the Federal Court of Australia Act 1976 (Cth)

Legislation:
Competition and Consumer Act 2010 (Cth), ss 4, 79(1)(a), 79(1)(c), 79(1A), 44ZZRD, 44ZZRD(1), 44ZZRD(2)(a), 44ZZRD(2)(c), 44ZZRD(3)(a)(iii), 44ZZRD(4)(a)-(c), 44ZZRD(4)(h), 44ZZRF, 44ZZRF(1), 44ZZRF(1)(a), 44ZZRF(1)(b), 44ZZRF(2), 44ZZRG, 44ZZRG(1), 44ZZRG(1)(b), 44ZZRG(2), 84(2), 84(2)(a)

The Criminal Code (schedule to the Criminal Code Act1995 (Cth)), ss 2.2, 3.1(1), 5.2(1), 5.3, 5.6(1), 11.2(2)-(5)

Federal Court of Australia Act 1976 (Cth), ss 23, 23BA, 23BF, 23BH, 23CB(1), 23CE, 23CE(a), 23CP(1)(a), 23CP(1)(b), 23CP(2)(a)(i)-(iv), 23CP(2)(b)

Federal Court (Criminal Proceedings) Rules 2016 (Cth), rr 3.01, 3.01(4)(a)-(c), 3.07(1), 3.07(3)

Cases cited:
Baiada Poultry v Victorian WorkCover Authority (2015) 257 IR 204; [2015] VSCA 344

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30

De Romanis v Sibraa [1977] 2 NSWLR 264

Giorgianni v The Queen (1985) 156 CLR 473

Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51

Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373

John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508

Johnson v Miller (1937) 59 CLR 467

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121

Norcast S.ár.L v Bradken Limited (No 2) (2013) 219 FCR 14; [2013] FCA 235

R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281

R v Tannous (1987) 10 NSWLR 303

S v The Queen (1989) 168 CLR 266

Smith v Moody [1903] 1 KB 56

Stanton v Abernathy (1990) 19 NSWLR 656

Walsh v Tattersall (1996) 188 CLR 77

WCG v The Queen (2007) 233 CLR 66; [2007] HCA 58

Yorke v Lucas (1985) 158 CLR 661

Division: General Division

Registry: New South Wales

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 318

Date of hearing: 1 April 2021

Counsel for the Prosecutor: Ms S Dowling SC with Ms T Epstein

Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions

Counsel for the First Accused: Mr J Williams SC with Ms A Bonnor

Solicitor for the First Accused: Herbert Smith Freehills

Counsel for the Second Accused: Mr N Clelland QC with Ms B Anniwell

Solicitor for the Second Accused: MinterEllison

Counsel for the Third Accused: Ms S Callan SC with Mr D Wong

Solicitor for the Third Accused: Watson Mangioni Lawyers

Counsel for the Fourth Accused: Mr R A Dick SC with Mr R Pietriche

Solicitor for the Fourth Accused: Horton Rhodes

Counsel for the Fifth Accused: Mr M Thangaraj SC with Ms E Sullivan

Solicitor for the Fifth Accused: King & Wood Mallesons

Counsel for the Sixth Accused: Mr H K Dhanji SC

Solicitor for the Sixth Accused: Arnold Bloch Leibler

Counsel for the Seventh Accused: Mr P Wood

Solicitor for the Seventh Accused: Arnold Bloch Leibler

Counsel for the Eighth Accused: Mr T Game SC and Mr S Buchen SC with
Ms S Palaniappan

Solicitor for the Eighth Accused: Allens

Counsel for the Ninth Accused: Mr P Strickland SC with Mr S A Lawrance

Solicitor for the Ninth Accused:
Corrs Chambers Westgarth

ORDERS

NSD 1316 of 2020

BETWEEN:
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

AND:
CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED ACN 003 114 832

First Accused

ITAY TUCHMAN

Second Accused

JOHN WILLIAM MCLEAN (and others named in the Schedule)

Third Accused

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

7 JULY 2021

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:

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.
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.
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.
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.
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
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.
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.
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.
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 Act1995 (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.
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.
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.
Subsection 44ZZRG(2) provides that the fault element for s 44ZZRG(1)(a) is knowledge or belief.
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.
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.
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.
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.
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.
First, the accused (Citigroup and Deutsche Bank) either made an arrangement or arrived at an understanding.
Second, the accused intended to either make that arrangement or arrive at that understanding.
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.
Fourth, the accused knew or believed that the arrangement or understanding contained the cartel provision.
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.
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.
Second, the accused (Citigroup and Deutsche Bank) knew or believed that the relevant arrangement or understanding contained a cartel provision.
Third, the accused gave effect to the cartel provision.
Fourth, the corporation intended to give effect to the cartel provision.
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.

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.
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.
It follows that, in simple terms, the elements of the accessorial charges are as follows.
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.
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).
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.
Fourth, the accused had knowledge of all the essential facts in respect of the relevant contravention.
THE INDICTMENT
As already noted, the indictment contains 42 charges.
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.
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.
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.
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.
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.
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.
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.
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.
In these reasons, I will refer to these particulars as the cartel provision (supply) particulars.
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.
These particulars of the alternative cartel provision will be referred to in these reasons as the cartel provision (price) particulars.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.

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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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”.
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.
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].
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.”
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.
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”.

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?
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.
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.
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
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.
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.
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.
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.
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.
The indictment is broadly structured as follows.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
The same cannot necessarily be said concerning the particulars of the cartel provisions.
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.
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).
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.
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 …
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
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.
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.

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

The end date of the date range is also controversial. It is unnecessary to detail that controversy because the prosecutor conceded in the course of argument that the current end date of 30 September 2015 would have to be amended to 28 August 2015.
As was the case with the issues concerning the particularisation of the date in the case of charges 12 to 14, it is unnecessary to finally resolve the issues that appear to arise from the current particularisation of the date range in charge 15. The prosecutor again 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 attention to those particulars before filing the required new indictment. It suffices, for present purposes, to note again that the use of the word “about” and the employment of a relatively lengthy period during which the offence is alleged to have been committed does not necessarily mean that the particularisation of the charge is inadequate or defective.
Aside from the complaints concerning the date particulars, the contentions by the accused in respect of the defects in the pleading of charge 15 were essentially the same as those raised in respect of charge 8. More significantly, for essentially the same reasons as given in respect of charge 8, the current particularisation of charge 15 is inadequate. Consistently with what has been said in respect of charge 8, the following additional particulars should be included in the indictment.
First, the particulars should make it clear that the basis upon which it is alleged that ANZ aided, abetted, counselled or procured the contraventions is that the relevant conduct and state of mind of Mr Moscati is attributable to ANZ.
Second, the particulars to charge 15 should include a concise summary of the substance or effect of the conduct of Mr Moscati that is said to have constituted or amounted to the aiding, abetting, counselling or procuring of the relevant contraventions.
Third, the particulars to the charge should include particulars of Mr Moscati’s state of mind and intention that is said to be attributable to ANZ: intention to engage in conduct to give effect to the arrangement or arrive at the understanding and knowledge or belief of the facts that meant that the arrangement or understanding comprised or contained a cartel provision.
The suggested particulars to charge 8 referred to earlier should provide some guidance as to the required level of particularity and factual detail of the additional particulars in respect of charge 15.
Charges 16 to 21: Contraventions of ss 44ZZRF(1) and 44ZZRG(1) by Citigroup and Deutsche Bank in respect of the Monday Understanding and accessorial charges against Messrs Tuchman, McLean, Ormaechea and Richardson
Charges 16 to 21 may conveniently be dealt with together. The issues relating to the particularisation of these charges may also be dealt with in short and summary terms.
Charges 16 to 21 essentially mirror charges 9 to 14 in the indictment, though they relate to the Monday Understanding as opposed to the 5%-7% Understanding. It is, in those circumstances, unnecessary to detail precisely how charges 16 to 21 are pleaded. The particulars of the arrangement or understanding relevant to these charges are the Monday Understanding particulars, which appear in the indictment after charge 21. The particulars of the cartel provision relevant to these charges also appear after charge 21.
The issues concerning the particularisation of charges 16 to 21 are essentially the same as those that have been considered in the context of charges 9 to 14 and charges 1 to 3 and 5 to 8. For essentially the same reasons as those given in the discussion of the particularisation of those charges, additional particulars of charges 16 to 21 should be included in the indictment. The general nature and effect of the additional particulars has already been discussed at length and need not be repeated. The suggested particulars to charges 1 to 3 and 5 to 8 should provide some guidance as to the level of particularity of the additional particulars required in respect of charges 16 to 21.
The alternative charges: Charges 22 to 42
It is similarly unnecessary to discuss charges 22 to 42 at length. As has already been noted, charges 22 to 42 are pleaded in essentially the same terms as charges 1 to 21. The only difference is that the particulars of the cartel provision applicable to charges 22 to 42 are the cartel provision (price) particulars as opposed to the cartel provision (supply) particulars.
The issues and deficiencies in respect of the alternative particulars of the cartel provisions have already been discussed. It is unnecessary to say anything further in that regard.
Similarly, the issues and deficiencies in respect of the pleading of the charges themselves have effectively already been addressed in the context of charges 1 to 21. The additional particulars that should be included in respect of charges 1 to 21 should also be included in respect of charges 22 to 42.
OTHER COMPLAINTS
The accused filed voluminous written submissions containing many and varied complaints about the indictment and the particularisation of the prosecution case generally. Many of the complaints were not expanded on or developed in the oral submissions advanced by the parties. I have endeavoured to address all of the main arguments concerning the validity of the indictment. If I have not specifically addressed some of the more minor arguments that are buried deep in the written submissions, that is because those arguments appeared not to be pressed in oral argument or were, in any event, of insufficient merit to warrant specific attention.
There is, however, one additional argument that I should address. Some of the accused contended that some of the charges in the indictment involved or gave rise to “multiple pathways to guilt”. One of the accused, whose submission on this point was adopted or endorsed by all other accused, went so far as to suggest that one of the charges, “by reason of the absence of reasonable particularisation”, gave rise to “9,216 different potential pathways to an offence”. The submissions did not expose the mathematical calculation which produced that figure, though it may be inferred that the calculation factored into the equation an assumption that some of the elements of the offence involved alternatives because they included the word “or”. For example, “made an arrangement or arrived at an understanding”; “knowingly concerned in, or party to”; “knowing or believing”; “directly or indirectly”; “preventing, restricting or limiting”; “supply or likely supply”; and “persons or classes of persons”.
If that is the basis of the analysis, and no other basis is readily apparent, it is both unhelpful and erroneous. Many of those expressions or phrases do not involve true alternatives or separate or independent ‘pathways’. For example, the phrase “knowingly concerned in, or party to” a contravention does not involve alternatives, but is better viewed as a composite phrase descriptive of a single concept. The words “directly or indirectly” are also largely superfluous and do not involve alternative pathways. Some of the expressions perhaps involve alternatives, but the distinctions are fine. For example, there is very little difference between the words “restricting” and “limiting”, at least in the context in which they are used in the indictment. As discussed earlier in these reasons, it is unobjectionable for the prosecutor to particularise the cartel provision as having the purpose of either restricting or limiting supply. The rather spurious calculation of the alternative pathways provides no basis for finding that the particulars of the charges are defective.
That said, the prosecution case against the accused is undoubtedly complex. It should not be made even more complex by needlessly including unnecessary verbiage in the charges. The fact that the relevant offence and definitional provisions include various different formulations of the offence or definition does not mean that all of those formulations need be included in the charges. For example, as discussed earlier, s 44ZZRD(3)(a)(iii) of the C&C Act, which contains one of the various different or alternative elements of the meaning of “cartel provision”, provides that the “purpose condition” may be satisfied by a provision which 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”. It does not follow that the prosecutor should necessarily include all of the different formulations of this aspect of the offence when pleading the charge. It is, for example, unnecessary and counterproductive to include the word “preventing” in the particulars of the cartel provision if the prosecution case is that the purpose of the provision was to restrict or limit supply. The prosecutor should give careful thought and attention to framing the charges in the simplest terms appropriate having regard to the actual nature of the prosecution case. Failure to do so may lead to unnecessary and undesirable complications: see for example Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30.
Insofar as it was submitted that the alleged multitude of pathways (referred to above) would or could give rise to the need for an extended unanimity direction to a jury, the need for such a direction “can only be assessed and determined at the trial after the evidence has been adduced and the factual issues have crystallised”: Country Care at [95]. In Country Care, the accused had contended there were more than three million alternative pathways to the accused’s guilt: Country Care at [74]. The Full Court found that, even if extended unanimity directions were needed, that number of pathways was insufficient to demonstrate the directions were complex enough to justify a severance or stay of the charges for being oppressive or unfair: Country Care at [163]-[167]. In any event, these are issues that may arise at a later point in the proceeding and do not relate to the validity of the indictment.
CONCLUSION AND DISPOSITION
The current indictment is defective. That is because the statements of the alleged offences do not describe the nature of the alleged offences with “reasonable particularity” for the purpose of r 3.01(4)(c) of the Rules. They do not, for the most part, identify all of the essential factual ingredients of the offences.
It would, in the circumstances, be open to the Court to quash the indictment and discharge the accused pursuant to s 23CP(2)(a)(ii) and (iii) of the FCA Act. Equally, however, it would be open to the Court to make an order for the amendment of the indictment to remove the defects pursuant to s 23CP(2)(b), or make such other orders as are thought “appropriate in the circumstances”: s 23CP(2)(a)(iv) of the FCA Act.
I do not consider it appropriate, in all the circumstances, to quash the indictment and discharge the accused. That is because the proceeding is at an early stage, at least in this Court, and the defects in the indictment are by no means irremediable. The defects are, for the most part, a product of the fact that some of the factual particulars that have been included in the Notice have not been, but should be, included in the indictment, at least in a distilled or summary form. That appears to have been a product, at least in part, of a perhaps admirable desire on the part of the prosecutor to keep the indictment as brief and simple as possible. It may also have been the product of a desire on the part of the prosecutor to allow for some flexibility in the way the prosecution case is advanced at trial. Whatever may be the reason, the result is an indictment that is largely devoid of any meaningful detail beyond a description of the offences in the words of the relevant statutory provisions and the inclusion of basic particulars concerning mostly dates and names.
I do not, however, accept that the indictment is incoherent as some of the accused contended. The nature and substance of the prosecution case is tolerably clear from the Notice. The problem with the indictment is that it does not include adequate particulars. There is no real reason to doubt that the prosecutor will be able to remedy that defect by including further particulars in the indictment in accordance with these reasons. Those particulars are, for the most part, already included in the Notice. It is simply a matter of distilling the particulars and including them in an appropriate form in the indictment.
It may be accepted that the inclusion of further particulars in the indictment will mean that the indictment will be very lengthy – indeed, far lengthier than indictments generally are, even in the most complex ‘white-collar’ prosecutions. It may equally be accepted that the indictment will also include more particulars than are customarily or conventionally included in indictments. This is, however, on just about any view, a somewhat exceptional and extraordinary matter. It involves devilishly complex and labyrinthine offence provisions, multiple charges, alternative charges, multiple accused, corporate accused, accessorial liability and relatively complex facts. While brevity may be an admirable objective when it comes to criminal pleading, clarity and particularity is deserving of greater weight than brevity in the unique circumstances of this case.
In all the circumstances, I consider that the most appropriate course is to permit the prosecutor to file a new indictment which includes the required particulars and thereby remedies the defects in the current indictment. That is preferable to ordering the prosecutor to amend the existing indictment pursuant to s 23CP(2)(b) of the FCA Act. That is because, as already noted, the proceeding is at an early stage and the procedure under r 3.07(1) of the Rules for amending indictments before the start of the trial is somewhat awkward and messy where, as here, the amendments are likely to be fairly extensive.
I recognise that, while the proceeding is at an early stage in this Court, there is a very long history of complaint and disgruntlement on the part of the accused in relation to the provision of proper particulars of the prosecution case. The accused were first charged with cartel offences as long ago as June 2018. The matter then languished at the committal stage in the Local Court of New South Wales for some 30 months. The legal representatives of the accused made multiple requests for particulars of the offences during that period. Those responses were, at least so far as the accused or their representatives were concerned, not responded to appropriately or adequately. It would not be unfair to say that many of the complaints and contentions that have been found to have some merit in the present application had been raised with the prosecutor during the course of the committal proceedings.
It is extraordinary and rather unsatisfactory that the issues concerning the particulars of the charges were not resolved during the committal. It certainly raises questions about the utility of committal proceedings in state courts in matters such as this. It is equally unsatisfactory that, after all this time, the prosecutor has been unable, as yet, to file a valid or satisfactory indictment.
The accused submitted that, given the long history of complaints concerning the particularisation of the charges, the prosecutor should not be permitted to file a new indictment without the leave of the Court as is otherwise permitted by the Rules. I can see some merit in that submission, at least in the context of the present application. I am nevertheless not inclined to require the prosecutor to obtain the Court’s leave before filing a new indictment to remedy the defects in the current indictment. These reasons provide a detailed explanation of what is required to remedy the defects in the current indictment and, as I have already said, there is no reason to suppose that the prosecutor will not now be able to describe the alleged offences in the indictment with “reasonable particularity” as required by r 3.01(3) and 4(c) of the Rules.
To require the prosecutor to obtain the Court’s leave before filing the new indictment would also likely invite or encourage a further bout of submissions and the re-agitation of many of the arguments that have already been put and disposed of. That would simply be productive of further delay. That is not to say that the accused are in any way prevented from raising any legitimate objections to the new indictment that is ultimately filed by the prosecutor. If they wish to object to the indictment, however, they will have to file another interlocutory application.
The appropriate order in the circumstances is that the prosecutor file a replacement indictment within 14 days of this judgment which remedies the defects and deficiencies which have been identified. The proceeding will be listed for a further case management hearing shortly thereafter to progress the matter.

I certify that the preceding three hundred and eighteen (318) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.
Associate:
Dated: 7 July 2021
SCHEDULE OF PARTIES

NSD 1316 of 2020

Accused

Fourth Accused:

STEPHEN HUNTER ROBERTS

Fifth Accused:

DEUTSCHE BANK AKTIENGESELLSCHAFT

Sixth Accused:

MICHAEL RENE ORMAECHEA

Seventh Accused:

MICHAEL HUGH RICHARDSON

Eighth Accused:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522

Ninth Accused:

RICHARD MARC MOSCATI

File number:	NSD 1316 of 2020
Judgment of:	WIGNEY J
Date of judgment:	7 July 2021
Catchwords:	CRIMINAL LAW – federal crime – indictment filed pursuant to s 23BF of the Federal Court of Australia Act 1976 (Cth) and r 3.01 of Federal Court (Criminal Proceedings) Rules 2016 (Cth) – where accused investment banks are alleged to have made an arrangement or arrived at an understanding containing a cartel provision contrary to s 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth) – where accused investment banks are alleged to have given effect to a cartel provision contained in an arrangement or understanding contrary to s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) – where officers, employees or representatives of the investment banks are alleged to have been knowingly concerned in, or a party to, the contraventions of s 44ZZRF(1) and s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) pursuant to s 79(1)(c) – where a bank and its officer, employee or representative are accused to have aided, abetted, counselled or procured one of the investment banks to contravene s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) pursuant to s 79(1)(a) PRACTICE AND PROCEDURE – interlocutory application – application objecting to indictment on the basis of formal defects apparent on the face of indictment pursuant to s 23CP(1)(a) of the Federal Court of Australia Act 1976 (Cth) – application seeking to quash each count in indictment and to discharge accused on each charge pursuant to ss 23, 23CB(1), 23CP(2)(a)(i)-(iv) of the Federal Court of Australia Act 1976 (Cth) – whether statements of offences in indictment are sufficient – whether nature of alleged offences described with “reasonable particularity” in accordance with r 3.01(4) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) – whether statements or particulars of offences in indictment sufficiently identify the essential factual ingredients of alleged offences – whether formal defects were apparent on face of indictment – where indictment was found to have not identified the essential factual ingredients of alleged offences – where deficiencies in indictment can be remedied without causing significant prejudice to the accused – prosecutor to file new indictment to remedy identified deficiencies pursuant to s 23BH of the Federal Court of Australia Act 1976 (Cth)
Legislation:	Competition and Consumer Act 2010 (Cth), ss 4, 79(1)(a), 79(1)(c), 79(1A), 44ZZRD, 44ZZRD(1), 44ZZRD(2)(a), 44ZZRD(2)(c), 44ZZRD(3)(a)(iii), 44ZZRD(4)(a)-(c), 44ZZRD(4)(h), 44ZZRF, 44ZZRF(1), 44ZZRF(1)(a), 44ZZRF(1)(b), 44ZZRF(2), 44ZZRG, 44ZZRG(1), 44ZZRG(1)(b), 44ZZRG(2), 84(2), 84(2)(a) The Criminal Code (schedule to the Criminal Code Act1995 (Cth)), ss 2.2, 3.1(1), 5.2(1), 5.3, 5.6(1), 11.2(2)-(5) Federal Court of Australia Act 1976 (Cth), ss 23, 23BA, 23BF, 23BH, 23CB(1), 23CE, 23CE(a), 23CP(1)(a), 23CP(1)(b), 23CP(2)(a)(i)-(iv), 23CP(2)(b) Federal Court (Criminal Proceedings) Rules 2016 (Cth), rr 3.01, 3.01(4)(a)-(c), 3.07(1), 3.07(3)
Cases cited:	Baiada Poultry v Victorian WorkCover Authority (2015) 257 IR 204; [2015] VSCA 344 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30 De Romanis v Sibraa [1977] 2 NSWLR 264 Giorgianni v The Queen (1985) 156 CLR 473 Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51 Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121 Norcast S.ár.L v Bradken Limited (No 2) (2013) 219 FCR 14; [2013] FCA 235 R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 R v Tannous (1987) 10 NSWLR 303 S v The Queen (1989) 168 CLR 266 Smith v Moody [1903] 1 KB 56 Stanton v Abernathy (1990) 19 NSWLR 656 Walsh v Tattersall (1996) 188 CLR 77 WCG v The Queen (2007) 233 CLR 66; [2007] HCA 58 Yorke v Lucas (1985) 158 CLR 661
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	318
Date of hearing:	1 April 2021
Counsel for the Prosecutor:	Ms S Dowling SC with Ms T Epstein
Solicitor for the Prosecutor:	Commonwealth Director of Public Prosecutions
Counsel for the First Accused:	Mr J Williams SC with Ms A Bonnor
Solicitor for the First Accused:	Herbert Smith Freehills
Counsel for the Second Accused:	Mr N Clelland QC with Ms B Anniwell
Solicitor for the Second Accused:	MinterEllison
Counsel for the Third Accused:	Ms S Callan SC with Mr D Wong
Solicitor for the Third Accused:	Watson Mangioni Lawyers
Counsel for the Fourth Accused:	Mr R A Dick SC with Mr R Pietriche
Solicitor for the Fourth Accused:	Horton Rhodes
Counsel for the Fifth Accused:	Mr M Thangaraj SC with Ms E Sullivan
Solicitor for the Fifth Accused:	King & Wood Mallesons
Counsel for the Sixth Accused:	Mr H K Dhanji SC
Solicitor for the Sixth Accused:	Arnold Bloch Leibler
Counsel for the Seventh Accused:	Mr P Wood
Solicitor for the Seventh Accused:	Arnold Bloch Leibler
Counsel for the Eighth Accused:	Mr T Game SC and Mr S Buchen SC with Ms S Palaniappan
Solicitor for the Eighth Accused:	Allens
Counsel for the Ninth Accused:	Mr P Strickland SC with Mr S A Lawrance
Solicitor for the Ninth Accused:	Corrs Chambers Westgarth

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	7 JULY 2021

NSD 1316 of 2020
Accused
Fourth Accused:	STEPHEN HUNTER ROBERTS
Fifth Accused:	DEUTSCHE BANK AKTIENGESELLSCHAFT
Sixth Accused:	MICHAEL RENE ORMAECHEA
Seventh Accused:	MICHAEL HUGH RICHARDSON
Eighth Accused:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522
Ninth Accused:	RICHARD MARC MOSCATI