R v Bigatton (No 2)

[2023] NSWDC 290

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bigatton (No 2) [2023] NSWDC 290

Hearing dates:

31 July 2023

Decision date:

01 August 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

1.   The notice of motion filed 26 July 2023 on behalf of the Australian Securities Investment Commission is dismissed.

2.   The notice of motion filed 26 July 2023 on behalf of the Commonwealth Director of Public Prosecutions is dismissed.

Catchwords:

Setting aside subpoena - legitimate forensic purpose

Legislation Cited:

Corporations Act 2001, ss 601EE(5), 1311(1)

District Court Rules 1973, r 53.23

Cases Cited:

Australian Securities & Investment Commission vDunjey [2023] FCA 361

Australian Securities & Investment Commission v Marco (No 13) [2023] FCA 83

Attorney General (NSW)v Chidgey (2008) 182 A Crim R 536

National Australia BankvNorman (2009) 180 FCR 243.

R v Bigatton [2022] NSWDC 144

Secretary of the Department of Planning, Industry and Environmentv Blacktown City Council [2021] NSWCA 145

United States of America v Glenn Arcardo, US District Court, Southern California, 21 CR 2542 - TWR

Category:

Procedural rulings

Parties:

Rex (Crown)
John Louis Anthony Bigatton (Accused)

Representation:

Counsel:
A Williams (Crown) with
M Clifford-O’Sullivan
C Parkin (Accused)
M Rennie (ASIC – subpoena application)
C Hutchins (CDPP – subpoena application)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Australian Government Solicitor (ASIC)
Kings Law Group (Accused)

File Number(s):

2020/293887

JUDGMENT – EX TEMPORE

Application to set aside subpoena

1. HIS HONOUR: The trial of John Anthony Bigatton, is scheduled to have commenced this week.  There have been a number of late applications which seem to put that hearing in jeopardy. 

2. This is the first of a series of decisions that I am required to make prior to the commencement of the trial.  It is an application by Australian Securities and Investment Commission ("ASIC") and the Commonwealth Department of Public Prosecutions ("CDPP") to set aside subpoena in relevantly identical terms issued to each of them.  Those subpoena were issued on 5 July 2023 at the request of the Accused.  As I have said, the subpoenas are relevantly identical in that they call for the production of the same category of documents.

3. In terms the documents sought are:

1. All documents relating to communications between the FBI and ASIC regarding investigations into or concerning Bitconnect; and

2. All materials provided by the FBI to ASIC.

4. By notice of motion filed 14 July 2023, ASIC seeks orders setting aside the subpoena to it.  By motion filed 26 July 2023 the CDPP seeks the same orders upon the same bases.

5. I have heard submissions from both parties which are effectively made by ASIC adopted by the DPP although the CDPP made some further points.  I shall refer collectively to ASIC and the DPP as the applicants.

6. The parties are in agreement that the power to make orders, the orders sought, exist and is to be found in r 53.23 of the District Court Rules and that the appropriate test for me to…