Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 6)

[2021] FCA 206

FEDERAL COURT OF AUSTRALIA

Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 6) [2021] FCA 206  

File number:	VID 224 of 2019
Ruling of:	BROMWICH J
Date of ruling:	11 March 2021
Catchwords:	EVIDENCE – objection to evidence to be adduced on the basis that probative value outweighed by the danger of unfair prejudice to the defendant pursuant to s 137 of the Evidence Act 1995 (Cth) – held: no real danger of unfair prejudice, evidence admissible
Legislation:	Evidence Act 1995 (Cth) s 137
Division:	General Division
Registry:	Victoria
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	9
Date of hearing:	15 March 2021 - 1 June 2021
Date of submissions on this ruling:	5 March 2021
Counsel for the Prosecutor:	O Bigos QC, R Barry, A Muhlebach, C Exell, S Tatas
Solicitor for the Prosecutor:	Commonwealth Director of Public Prosecutions
Counsel for the First Accused:	K Morgan SC, P Strickland
Counsel for the Second Accused:	D Jordan SC, S Keating
Solicitor for the First and Second Accused:	HWL Ebsworth Lawyers
Counsel for the Third Accused:	D Staehli SC, C Bannan
Solicitor for the Third Accused:	Mills Oakley

VID 224 of 2019

BETWEEN:

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

AND:

THE COUNTRY CARE GROUP PTY LTD

First Accused

ROBERT MARTIN HOGAN

Second Accused

CAMERON HARRISON

Third Accused

REASONS FOR RULING

BROMWICH J:

1. In April 2013, Mr Riska was a director and company secretary of Peak Care Equipment Pty Ltd (Peak Care).  He attended a board meeting of that company on 29 April 2013 and prepared minutes for that meeting.  Six other directors were present, including the second accused, Mr Robert Hogan who was chairman of Peak Care at that time (referred to in the minutes as “Rob H”), and Dr Bob Carter (referred to in the minutes as “Rob Carter” or “Bob C”).  The paragraphs of Mr Riska’s statement dated 1 February 2017 concerning that meeting, and the corresponding evidence objected to being adduced, are [38]-[43].

2. After producing the minutes and describing the meeting and who was present, Mr Riska reproduces two paragraphs from those minutes as follows:

   NSW Allied Health contract. Country Care tendering on behalf of the Peak group.  Rob Carter would like TGA and Australian Standard approval details. Some are available through Peak website but maybe not all details needed. Peak office need to be responsible to find the details that not on website. Bob C asked for pricing to match Country Care tender but this is effectively price fixing and not legal.

   Bob C asked it to be tabled at board meeting which was done. Rob H to respond as appears to be email to Rob as Country Care as opposed to Rob as Chairman of Peak Board but not completely clear.

   (emphasis added to the key sentence objected to)

3. Mr Riska then comments upon those paragraphs.  In particular, he does not recall who made the statement emphasised in the first paragraph reproduced above, but says that this (that is, the suggestion of pricing to match the tender by the first accused, the Country Care Group Pty Ltd, on behalf of the Peak Care group) was certainly discussed and that the comment about that suggestion was made by one of the directors in the presence of the other directors.  He is not able to identify the director who made the comment, but does not say that it was Mr Hogan.  Nor does he say it was not Mr Hogan.  It seems he simply does not recall who made the comment.  The tender in question concerned a contract with NSW Allied Health, and thus a contract other than the Department of Veterans’ Affairs (DVA) contract the subject of charges 1-3 in the indictment.

4. Mr Hogan objects to this evidence being adduced upon the basis that its probative value is outweighed by the danger of unfair prejudice.  The objection is made on both sides of the ledger.  That is, in substance:

   (1)the probative value is questioned because the impugned passage relates to a request by a person present at a Peak Care meeting for the prices of products of Peak Care to match the prices of Country Care products, but in relation to a different contract to the DVA contract that is the subject of charges 1-3; and

   (2)the unfair prejudicial effect is asserted because the comment is not attributed to Mr Hogan, and is not about any assertion of price fixing in relation to the price of products to be placed on the DVA contract that is the subject of charges 1-3.

5. The probative value is that the evidence shows concerns being expressed about the legal constraints against price fixing in the presence of Mr Hogan, which is relevant to his and the corporate first accused’s knowledge and belief that the arrangement or understanding contained a cartel provision.  The probative value relied upon therefore relates to proof of the fault element of the charged conduct, even though it arose in a different context to the charged conduct.

6. Implicit at least in the objection is the risk of the evidence being given undue or otherwise inappropriate weight, including as an uncharged act, while being relied upon in relation to the conduct that is charged.  That is, the suggestion of pricing matching for the tender for a different contract to the DVA contract, and the comment that this is illegal, by Mr Hogan or at least in his presence, carries with it the suggestion that it amounts to an allegation of some uncharged act.  However, that is not the nature or substance of the evidence, nor the purpose for which it is adduced. 

7. The suggestion raised at the meeting by Dr Carter, which there is no basis for concluding was other than innocently advanced, was clearly enough rejected out of hand for the reason that this would not be legal, and recorded as such.  This does not seem to be more than a rejected suggestion, falling short of any attempt to induce such conduct.  In any event, the evidence is adduced only for the purpose of contributing to the evidence of Mr Hogan’s state of mind in relation to this kind of conduct.

8. The substance of the evidence is that those in attendance at the meeting, relevantly including Mr Hogan, were warned of the potential that conduct of this nature was “effectively price fixing and not legal”.  If it is not already clear enough, the jury can be directed that the suggestion was made in relation to a different tender than the DVA tender the subject of charges 1-3 and the evidence only goes to state of mind in relation to the charged conduct.

9. I see no real danger of unfair prejudice in the adducing of evidence that tends to prove that Mr Hogan, at 29 April 2013, two weeks prior to the charge period in the indictment of between about 13 May 2014 and 4 May 2016, was aware or made aware of at least the possibility that price matching between a list price and a tender price of this kind was not permitted.  The evidence objected to is therefore admissible.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Ruling of the Honourable Justice Bromwich.

Associate:

Dated:       11 March 2021