Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited - [2021] FCA 1345 - FCA 2021 case summary — Zoe

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Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited

[2021] FCA 1345

Federal Court of Australia|2021-11-03|Before: Wigney J

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Source facts

Court

Federal Court of Australia

Decision date

2021-11-03

Before

Wigney J

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

BACKGROUND AND CONTEXT 3 This judgment should be read in conjunction with Judgment No 1, which provides much of the relevant background and context. That judgment, amongst other things, sets out the nature and elements of the offences with which the accused have been charged, provides a summary of the charges in the indictment and the prosecution case as at the date of that judgment, discusses the relevant provisions of the Rules and the common law principles concerning the content of, and requirements for, a valid indictment and identifies the deficiencies in the indictment then under consideration. Abbreviations employed in Judgment No 1 are used again in this judgment. 4 To avoid confusion, I will from this point refer to the indictment which was found to be defective in Judgment No 1 as the Original Indictment (even though, as explained in Judgment No 1, it in fact replaced the first indictment filed by the prosecutor) and the indictment filed on 16 August 2021, following and as a consequence of Judgment No 1, as the August Indictment. 5 In short summary, the Original Indictment was found in Judgment No 1 to be defective or deficient because it failed to describe, concisely and with reasonable particularity, the nature of the offences alleged to have been committed by the accused. In particular, that indictment failed to identify many of the essential factual ingredients of the offences, beyond merely reciting the offences in the words of the provisions creating them. While the particulars of the alleged offences had, for the most part, been identified by the prosecutor and provided to the accused in a separate document, the Notice of the Prosecution's Case filed on 23 March 2021 pursuant to s 23CD(1)(a) and s 23CE of the FCA Act and by order of the Court, the charges in the indictment itself were nevertheless required to, but were found not to, include a concise distillation or summary of the essential conduct and relevant mental states of the accused relevant to the offences in question. The judgment explained the level of detail or particularity which was required. 6 As will be explained in more detail in due course, the August Indictment contains significantly fewer charges than the Original Indictment. The charges that are included in the August Indictment are undoubtedly described with more particularity than they were in the Original Indictment. The charges include some particulars of the factual elements of the alleged offences. The critical questions raised by the current interlocutory applications are: first, whether, despite the additional particularisation, the charges still fail to describe the essential factual ingredients of the alleged offences with sufficient particularity; and second, whether the additional particulars which have now been included in the charges are themselves deficient or expose or reveal other defects in the way the charges have been described. 7 The prosecutor did not concede that the statements of the charges in the August Indictment were deficient or defective. Despite that, the prosecutor provided the Court and the accused with a draft indictment which contained marked-up changes that were said to deal with some of the issues raised by the accused in respect of the August Indictment. Although no formal application was made by the prosecutor, the suggestion appeared to be that the prosecutor should be permitted to file the draft indictment (presumably without the mark-up) as a new indictment. To confuse matters even more, shortly prior to the hearing of the interlocutory applications, a further draft marked-up indictment was provided to the Court. That second version of the draft indictment included further substantial changes to the charges, in particular the charges against ANZ and Mr Moscati. 8 I will, again to avoid confusion, refer to the second version of the draft marked-up indictment as the Proposed Indictment. The prosecutor indicated that the intention was to file the Proposed Indictment to replace the August Indictment if the Court permitted that to occur. Regrettably, however, during the hearing of the interlocutory applications, the prosecutor appeared to concede that there may be issues with the Proposed Indictment and its terms may need to be revisited. 9 It would not be unfair to characterise the situation concerning the state of the indictment as a complete shemozzle. It is, on just about any view, an entirely unsatisfactory state of affairs for the indictment to be unsettled well over three years after the accused were first charged and just over six months before the trial has been listed to commence. 10 This judgment will address the validity of the August Indictment. Some consideration will also be given to whether the marked-up changes suggested in the Proposed Indictment are capable of rectifying any defects or deficiencies found to exist in the filed indictment. As will be seen, for the most part they are not. Indeed, in some respects the Proposed Indictment makes matters worse. 11 The Original Indictment contained 42 charges. The August Indictment contains 26 charges. 12 The reduction in the number of charges is essentially a product of the fact that the prosecution case originally involved an allegation that the principal offenders, Citigroup and Deutsche Bank, together with J.P. Morgan, entered into three separate arrangements or understandings. Those alleged arrangements or understandings were referred to as the Friday Understanding, the 5-7% Understanding and the Monday Understanding. Each of those arrangements or understandings was alleged to have contained a cartel provision. 13 Citigroup and Deutsche Bank were each charged with three counts of making an arrangement or arriving at an understanding containing a cartel provision contrary to s 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth) (C&C Act) - one count in respect of each of the three different arrangements or understandings - along with three alternative counts based on a differently particularised cartel provision in those arrangements or understandings. They were also charged with three counts of giving effect to a cartel provision in an arrangement or understanding contrary to s 44ZZRG(1) of the C&C Act - again, one count in relation to each of the three different arrangements or understandings - along with three alternative counts based on the differently particularised cartel provision in those arrangements or understandings. 14 Messrs Tuchman, McLean, Roberts, Ormaechea and Richardson were each charged with being knowingly concerned in, or party to, the contraventions by Citigroup and Deutsche Bank; Messrs Tuchman, McLean and Roberts in respect of Citigroup's contraventions (though Mr Roberts only faced charges in respect of the Friday Understanding) and Messrs Ormaechea and Richardson in respect of Deutsche Bank's contraventions. Messrs Tuchman, McLean, Ormaechea and Richardson were accordingly each charged with six offences and six alternative offences. Mr Roberts was charged with two offences and two alternative offences. 15 ANZ and Mr Moscati were charged with one count (and one alternative count) of being knowingly concerned in, or party to, the contraventions by Citigroup and Deutsche Bank arising from their making or arriving at the Friday Understanding and one count (and one alternative count) of being knowingly concerned in, or party to, the contraventions by Citigroup and Deutsche Bank arising from their giving effect to the cartel provision in the Friday Understanding. They were also charged with one count (and one alternative count) of aiding, abetting, counselling or procuring a contravention by J.P. Morgan, being a contravention arising from it giving effect to a cartel provision in the 5-7% Understanding. 16 The significant reduction in the number of charges in the August Indictment is a product of the fact that it does not contain any charges relating to, or arising from, the Friday Understanding or the Monday Understanding. The prosecution case is now based entirely on allegations relating to the 5-7% Understanding. As a result, Mr Roberts, who was only charged with offences relating to the Friday Understanding, is no longer accused of committing any offence and has been discharged. OUTLINE OF THE CHARGES IN THE NEW INDICTMENT 17 Citigroup and Deutsche Bank are now each charged with one count (and one alternative count) of making an arrangement or arriving at an understanding - the 5-7% Understanding - which contained a cartel provision (charges 1 and 14 in the case of Citigroup and charges 2 and 15 in the case of Deutsche Bank). The alternative counts are again based on the differently particularised cartel provision. Citigroup and Deutsche Bank are also each charged with one count (and one alternative count) of giving effect to the cartel provision contained in the 5-7% Understanding (charges 7 and 20 in the case of Citigroup and charges 8 and 21 in the case of Deutsche Bank). 18 Messrs Tuchman and McLean are now each charged with one count (and one alternative count) of being knowingly concerned in, or party to, Citigroup's contravention arising from it making or arriving at the 5-7% Understanding (charges 3 and 16 in the case of Mr Tuchman and charges 4 and 17 in the case of Mr McLean) and one count (and one alternative count) of being knowingly concerned in, or party to, Citigroup's contravention arising from it giving effect to the 5-7% Understanding (charges 9 and 22 in the case of Mr Tuchman and charges 10 and 23 in the case of Mr McLean). 19 Similarly, Messrs Ormaechea and Richardson are each charged with one count (and one alternative count) of being knowingly concerned in, or party to, Deutsche Bank's contravention arising from it making or arriving at the 5-7% Understanding (charges 5 and 18 in the case of Mr Ormaechea and charges 6 and 19 in the case of Mr Richardson) and one count (and one alternative count) of being knowingly concerned in, or party to, Deutsche Bank's contravention arising from it giving effect to the 5-7% Understanding (charges 11 and 24 in the case of Mr Ormaechea and charges 12 and 25 in the case of Mr Richardson). 20 ANZ and Mr Moscati are now jointly charged with only one offence (charge 13) and one alternative count (charge 26). The characterisation of those offences is a significant point of contention. It suffices at this point to say that they are both particularised as being an offence of aiding, abetting, counselling or procuring J.P. Morgan to give effect to a cartel provision in the 5-7% Understanding. The point of contention concerns the particulars of the arrangement or understanding, or the cartel provision contained in it, which it is alleged that ANZ and Mr Moscati intended to aid, abet, counsel or procure J.P. Morgan to give effect to. That issue will be considered in detail later in these reasons.

[3]

The make an arrangement or arrive at an understanding charges 22 Charge 1, which is the charge alleging that Citigroup made an arrangement or arrived at an understanding containing a cartel provision, is pleaded and particularised in the indictment as follows: Charge 1 The Prosecutor charges that on 8 August 2015 at Sydney in the State of New South Wales and elsewhere, CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED intentionally made an arrangement or arrived at an understanding with Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, containing a cartel provision, knowing or believing that the arrangement or understanding contained a cartel provision. Contrary to section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth). Particulars of the Arrangement or Understanding (referred to in this Indictment as the "5-7% Understanding Particulars") The arrangement or understanding referred to in Charge 1 was an arrangement or understanding between Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited (the Investment Banks) that, from 10 August 2015: (1) each of the Investment Banks, including through its related entities, would restrict or limit its trading in Australia and New Zealand Banking Group Limited shares (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, including through its related entities, 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 and its related entities did not exceed the 7% limit for that day, (referred to in this Indictment as the "5-7% Understanding"). Particulars of Conduct The 5-7% Understanding was made or arrived at during and as a result of discussions that occurred between officers, employees or representatives of the Investment Banks on 8 August 2015. Those individuals included Itay Tuchman and John McLean on behalf of Citigroup Global Markets Australia Pty Limited. In engaging in those discussions, one or more of Itay Tuchman and John McLean: (1) intended to make or arrive at the 5-7% Understanding on behalf of Citigroup Global Markets Australia Pty Limited; and (2) knew or believed the facts which meant that the 5-7% Understanding contained a cartel provision. Itay Tuchman and John McLean were acting within the scope of their actual or apparent authority. Their conduct and states of mind are accordingly attributable to Citigroup Global Markets Australia Pty Limited. Particulars of the Cartel Provision Supply of Shares Purpose (referred to in this Indictment as the "Supply of Shares Purpose Particulars") (1) The purpose of the provision contained in the 5-7% Understanding was to directly or indirectly restrict or limit the number of ANZ Shares that the Investment Banks would sell or offer for sale from 10 August 2015 to prospective purchasers of ANZ Shares on securities exchanges. (2) The provision contained in the 5-7% Understanding thereby satisfied the purpose condition in section 44ZZRD(3)(a)(iii) of the Competition and Consumer Act 2010 (Cth) as it had the purpose of, directly or indirectly, restricting or limiting the supply, or likely supply, of services (being ANZ Shares) to persons or classes of persons (being prospective purchasers of ANZ Shares) by any or all of the Investment Banks. Competition Condition (referred to in this Indictment as the "Competition Condition Particulars") (1) At least two of the Investment Banks were, or were likely to be, in competition with each other in relation to the sale of ANZ Shares which they held, or were likely to hold, to prospective purchasers of ANZ Shares on securities exchanges. (2) The competition condition in section 44ZZRD(4) of the Competition and Consumer Act 2010 (Cth) is satisfied in relation to the provision contained in the 5-7% Understanding as at least two of the Investment Banks were, or were likely to be, in competition with each other in relation to the supply of services (being ANZ Shares). 23 Charge 2, which is the charge alleging that Deutsche Bank made an arrangement or arrived at an understanding containing a cartel provision, is pleaded and particularised in essentially the same terms as charge 1, save that: first, the particulars of the arrangement or understanding simply state that the "arrangement or understanding referred to in Charge 2 is the 5-7% Understanding" and that the "5-7% Understanding Particulars are repeated"; second, the particulars of conduct refer to Mr Ormaechea, Mr Richardson and Deutsche Bank (as opposed to Mr Tuchman, Mr McLean and Citigroup); and third, the particulars of the cartel provision simply state that the Supply of Shares Purpose Particulars and the Competition Condition Particulars are repeated. 24 The accused, quite sensibly, did not take issue with the drafting device employed by the prosecutor of defining certain particulars (for example, the '5-7% Understanding Particulars') and then employing that definition in the particulars of subsequent charges. While the use of abbreviations or defined terms or expressions in indictments is not common and not always to be encouraged, in this case it appears to make sense. It avoids unnecessary repetition and reduces the length of what will in any event be a very lengthy indictment: see Judgment No 1 at [115]. 25 Charges 14 and 15, which are the alternative charges involving the making or arriving at the arrangement or understanding are essentially in the same terms as charges 1 and 2, save for the purpose condition in the Particulars of the Cartel Provision. Those particulars include, in lieu of the Supply of Shares Purpose, the following particulars: (1) The Investment Banks considered it likely that if they did not restrict or limit their trading in ANZ Shares on securities exchanges from 10 August 2015, the price of ANZ Shares on securities exchanges would be lower than it would be if they did restrict or limit such trading. The purpose of the provision contained in the 5-7% Understanding was to prevent such a relative fall in the price of ANZ Shares from occurring. (2) The provision contained in the 5-7% Understanding thereby satisfied the purpose condition in sections 44ZZRD(2)(a) and (c) of the Competition and Consumer Act 2010 (Cth) as it had the purpose of, directly or indirectly, controlling or maintaining the price for services (being ANZ Shares) supplied, or likely to be supplied, by any or all of the Investment Banks. 26 The particulars of the cartel provision include the Competition Condition Particulars in the same terms as they appear in charge 1.

[4]

The "gave effect to a cartel provision" charges 27 Charge 7, which is the charge alleging that Citigroup gave effect to a cartel provision contained in an arrangement or understanding, is pleaded and particularised in the indictment as follows: Charge 7 The Prosecutor charges that between 8 August 2015 and 11 September 2015 at Sydney in the State of New South Wales and elsewhere, CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED intentionally gave effect to a cartel provision contained in an arrangement or understanding with Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited 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) of the Competition and Consumer Act 2010 (Cth). Particulars of the Arrangement or Understanding The arrangement or understanding referred to in Charge 7 is the 5-7% Understanding. The 5-7% Understanding Particulars are repeated. Particulars of Conduct Citigroup Global Markets Australia Pty Limited gave effect to the cartel provision in the 5-7% Understanding by one or more of its officers, employees or representatives, namely Itay Tuchman or John McLean or employees or representatives engaged in trading ANZ Shares acting under the direction of one or both of them, engaging in conduct between 8 August 2015 and 11 September 2015 that was intended to restrict or limit Citigroup Global Markets Australia Pty Limited's trading in ANZ Shares, including the trading of any of its related entities, to no more than 7% of the average daily volume of the trade in ANZ Shares (with the aim of not exceeding 5%). Those individuals (including those who acted under the direction of Itay Tuchman or John McLean) were acting within the scope of their actual or apparent authority as officers, employees or representatives of Citigroup Global Markets Australia Pty Limited. Their conduct is accordingly attributable to Citigroup Global Markets Australia Pty Limited. In engaging in their conduct, one or more of Itay Tuchman and John McLean: (1) knew or believed the facts which meant that the 5-7% Understanding contained a cartel provision; and (2) intended to give effect to the cartel provision. Itay Tuchman and John McLean were acting within the scope of their actual or apparent authority as officers, employees or representatives of Citigroup Global Markets Australia Pty Limited. Their states of mind are accordingly attributable to Citigroup Global Markets Australia Pty Limited. Particulars of the Cartel Provision Supply of Shares Purpose The Supply of Shares Purpose Particulars are repeated. Competition Condition The Competition Condition Particulars are repeated. 28 Charge 8, which is the charge alleging that Deutsche Bank gave effect to a cartel provision contained in an arrangement or understanding, is pleaded and particularised in essentially the same terms as charge 7, save that the particulars of conduct refer to Mr Ormaechea, Mr Richardson and Deutsche Bank, as opposed to Mr Tuchman, Mr McLean and Citigroup. 29 Charges 20 and 21, which are the alternative charges involving giving effect to a cartel provision, are in essentially the same terms as charges 7 and 8, save for the purpose condition in the Particulars of the Cartel Provision. Those particulars refer to the Price of Shares Purpose instead of the Supply of Shares Purpose and state that the "Price of Shares Purpose Particulars are repeated".

[6]

Failure to identify the cartel provision 31 It was contended that the particulars of the charges against Citigroup and Deutsche Bank were defective because they fail to properly identify the relevant cartel provision. There is some merit in that contention, though as will be seen it is a fairly technical issue. 32 Charges 1, 2, 14 and 15 allege that Citigroup and Deutsche Bank "made an arrangement or arrived at an understanding … containing a cartel provision…". Charges 7, 8, 20 and 21 similarly allege that Citigroup and Deutsche Bank "gave effect to a cartel provision contained in an arrangement or understanding". The charges provide particulars of the alleged arrangement or understanding under the subheading "Particulars of the Arrangement or Understanding". They also purport to provide separate particulars of the cartel provision allegedly contained in the arrangement or understanding under the subheading "Particulars of the Cartel Provision". As has been seen, those particulars relevantly refer to the "purpose of the provision contained in" the arrangement or understanding. They do not, however, expressly or directly identify the terms of the provision itself. Nor do the particulars make it clear, as the prosecutor contended, that the cartel provision was "comprised by the terms of the 5-7% Understanding". 33 The difficulty arises because, while the wording of the relevant offence provisions, s 44ZZRF(1) and s 44ZZRG(1) of the C&C Act, distinguish between the arrangement or understanding that is allegedly made or arrived at and the cartel provision which is allegedly contained in that arrangement or understanding, in many cases the alleged cartel provision may effectively be the only material provision contained in the arrangement or understanding. This would appear to be such a case. 34 It is tolerably clear that the prosecution case is that the relevant cartel provision is, in substance and effect, the provision that is currently particularised in the charges as being the alleged arrangement or understanding - the 5-7% Understanding - or at least paragraphs (1) and (2) of the 5-7% Understanding Particulars. Unfortunately, however, the particulars of the charges in the indictment do not make that abundantly clear. That is a defect in the current wording of all of the charges in the indictment, not just the charges against Citigroup and Deutsche Bank. 35 While the prosecutor did not accept that there was any such defect in the August Indictment, the Proposed Indictment includes some marked-up changes which would appear to be intended to deal with this complaint by the accused. For example, in the case of charge 1, the Proposed Indictment includes the following words after the subheading "Particulars of the Cartel Provision": (referred to in this Indictment as the "Cartel Provision Particulars") The cartel provision referred to in Charge 1 was a provision contained in the 5-7% Understanding to the same effect as paragraphs (1) and (2) in the 5-7% Understanding Particulars. 36 That change would then be carried through into the other charges to the extent that they repeat the Cartel Provision Particulars. It should also be noted that, presumably as a result of the introduction of the defined term 'Cartel Provision Particulars', the references in the charges to the Supply of Shares Purpose Particulars and Competition Condition Particulars have also been deleted in the Proposed Indictment. The references to the Price of Shares Purpose Particulars have also been deleted in the Cartel Provision Particulars in the alternative charges. As will be seen, however, this consequential change is problematic. 37 Putting aside, for the moment, the problem caused by the introduction of the defined term 'Cartel Provision Particulars' and the consequential deletion of the defined terms originally employed in the particulars of the cartel provision, the inclusion of the words "[t]he cartel provision referred to in Charge 1 was a provision contained in the 5-7% Understanding" is perhaps one way of rectifying the defect arising from the fact that the charges do not properly identify the cartel provision. The accused appeared to accept as much - at least they did not clearly or expressly contend to the contrary. I do not, however, consider that this wording is the best or clearest way in which to deal with this issue in the charges. Indeed, it is somewhat confusing in some respects. 38 A preferable way to rectify this defect in the present wording or particularisation of the charges would be to make it clear at the outset, in the particulars of the alleged arrangement or understanding (the 5-7% Understanding Particulars), that the terms of the arrangement or understanding which are identified in those particulars are the terms of the cartel provision contained in the arrangement or understanding. That could readily be done, for example, by inserting, between the words "(the Investment Banks) that" and "from 10 August 2015" on the third line of the particulars, the words "contained a provision (the Cartel Provision) to the effect that". The words "referred to in charge 1" should also be deleted. The introductory words to the 5-7% Understanding Particulars would accordingly read as follows: The arrangement or understanding between Citigroup Global Markets Australia Pty Limited, Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited (the Investment Banks) contained a provision (the Cartel Provision) to the effect that, from 10 August 2015: 39 That would make it sufficiently clear that the particularised provision - defined as the 'Cartel Provision' - was effectively the only relevant or material provision contained in the alleged arrangement or understanding. The defined term 'Cartel Provision' can then be utilised in the particulars to the other charges. The reason for the suggested deletion of the words "referred to in Charge 1" is to enable the defined term - the 'Cartel Provision' - to be used or referred to where applicable in all of the charges. 40 While the effect of this means of particularising the charges may be that the alleged arrangement or understanding and the alleged cartel provision were essentially one and the same, I do not consider that the charges have to state that the cartel provision was the arrangement or understanding, or vice versa, as was effectively contended by some of the accused. Indeed, given the wording of both s 44ZZRF(1) and s 44ZZRG(1), both of which refer to a cartel provision "contained in" a contract, arrangement or understanding, that would be somewhat confusing and potentially problematic. There is no reason in principle why an arrangement or understanding cannot be said to contain a provision, even if that provision is effectively the only provision, or only relevant or material provision, in the arrangement or understanding. I also do not consider that the particulars of the arrangement or understanding in the indictment have to indicate whether there were any other terms or provisions in the 5-7% Understanding beyond the Cartel Provision. It is plain enough that the prosecution case is that there were no other relevant or material provisions. 41 It would in my view also be preferable for the Particulars of the Cartel Provision, which currently appear after the particulars of the conduct allegedly engaged in by the accused, to appear immediately after the Particulars of the Arrangement or Understanding. Those particulars could also employ the defined term Cartel Provision in lieu of the words "the provision contained in the 5-7% Understanding" wherever those words appear. That change would have the additional benefit of shortening and simplifying the wording of the particulars of the cartel provision. 42 While this manner of re-particularising the charges may still be less than ideal, in my view it would adequately rectify the defect identified by the accused in respect of the identification of the alleged cartel provision. 43 As I emphasised repeatedly in Judgment No 1, it is not for the Court to compel a prosecutor to particularise charges in a particular way, or to assist the prosecutor in the drafting of the charges. That said, the "overarching purpose" of the Rules is to "facilitate the fair, efficient and timely determination of criminal proceedings in the Court", including the "efficient use" of "judicial and administrative resources": r 1.04(1) and (2)(a) of the Rules. More particularly, given the central importance of an indictment in any criminal trial (see Judgment No 1 at [92]), it is incumbent on the Court to ensure that the indictment is expressed in clear and comprehensible terms which are able to be understood by the accused and the jury. That is no mean feat in the case of indictments alleging offences under s 44ZZRF(1) and s 44ZZRG(1) of the C&C Act, particularly given the complexity of the elements of those offences. In my view it may be appropriate, in some circumstances, for the Court to express a view as to how charges in an indictment should best be framed so as to ensure not only that the proceedings are determined in a fair, efficient and timely fashion, but also to ensure that the indictment is able to be properly understood. 44 That said, as was again made clear in Judgment No 1, the framing and particularisation of the charges in the indictment is ultimately a matter for the prosecutor. The prosecutor is not bound to follow any suggestion concerning the wording of the charges that is made in these reasons. The prosecutor should also plainly independently satisfy herself (or himself, as the case may be) that the formulation of the charges ultimately employed in the indictment complies with the Rules and common law principles relating to indictments. 45 As adverted to earlier, the means by which the prosecutor sought to deal with this issue in the Proposed Indictment would appear to give rise to at least one other potential defect. The proposed changes include deleting the defined expressions Supply of Shares Purpose Particulars and Competition Condition Particulars in charges 1 to 13 and inserting in their stead a single defined expression - the 'Cartel Provision Particulars' - which incorporates both the Supply of Shares Purpose and the Competition Condition. Then, from charge 14, which is the first of the alternative charges based on a differently particularised cartel provision, it is proposed to again delete the defined expressions 'Price of Shares Purpose Particulars' and 'Competition Condition Particulars' and replace those defined terms or expressions by a single defined expression - the 'Cartel Provision Particulars'. The difficulty is that 'Cartel Provision Particulars' is the same defined expression that is used in charges 1 to 13. The same defined term is therefore used to describe the two different formulations of the alleged particulars of the cartel provision. That is self-evidently confusing and potentially productive of error.

[7]

Deficient particulars of knowledge 46 As was indicated in Judgment No 1, it is an element of the offence under s 44ZZRG(1) of the C&C Act that the accused knew or believed that the arrangement or understanding which they made or arrived at contained the alleged cartel provision: Judgment No 1 at [21]. Similarly, the offence under s 44ZZRF(1) includes an element that the accused knew or believed that the arrangement or understanding contained a cartel provision. 47 Each of charges 1, 2, 7, 8, 14, 15, 20 and 21 include particulars of the alleged conduct engaged in by the accused. Those particulars include particulars of the fault element or state of mind of the accused that correspond with the physical or conduct element. While not strictly 'conduct', the state of mind of the accused is nevertheless an essential factual ingredient of an offence which must be included in the particulars of a charge in an indictment. 48 In relation to the fault element that the accused knew or believed that the arrangement or understanding contained a cartel provision (see s 44ZZRF(1)(b) and (2) and s 44ZZRG(1)(a) and (2) of the C&C Act), the particulars in each of the charges state that the accused "knew or believed the facts which meant that the 5-7% Understanding contained a cartel provision". 49 That formulation of the relevant fault element of knowledge appears to have been derived from Judgment No 1: see for example Judgment No 1 at [185]-[189]. The reason that the knowledge element was expressed in those terms was to avoid the suggestion that it is necessary for the prosecutor to prove that the accused knew that the facts relating to the 5-7% Understanding and the provision contained in it were capable of being characterised, in the precise legal sense, as a 'cartel provision' as defined in the C&C Act. It is clearly not necessary for the prosecution to prove that the accused knew that the facts were "capable of characterisation in the language of the statute": Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75 at [48]. Rather, the prosecutor is required to prove that the accused knew or believed the facts that, if proved, made the provision contained in the arrangement or understanding a cartel provision as defined. 50 On reflection, however, the particularisation of the knowledge element in these shorthand terms - that the accused "knew or believed the facts which meant that the 5-7% Understanding contained a cartel provision" - may not be ideal. Indeed, it may be potentially problematic and should be revisited. The expression "knew or believed the facts which meant" has also been employed by the prosecutor in other contexts in the charges where it is not required and even less apposite. 51 The accused contended that the particulars of knowledge in the charges are deficient because they fail to clearly identify the relevant facts which the accused knew or believed. 52 There is some merit in that contention by the accused. It is, however, a deficiency that should be able to be readily rectified. 53 It is tolerably clear that the prosecution case is that the relevant facts which meant that the provision in the arrangement or understanding was a cartel provision are those facts which are referred to in the Particulars of the Cartel Provision: in the case of charges 1, 2, 7 and 8, the Supply of Shares Purpose Particulars and the Competition Condition Particulars; and in the case of charges 14, 15, 20 and 21, the Price of Shares Purpose Particulars and the Competition Condition Particulars. 54 The prosecutor argued that it is clear from the way that the charges have been particularised that the Price of Shares Purpose Particulars and the Competition Condition Particulars are the relevant "facts" referenced in the particular that the accused "knew or believed the facts which meant that the 5-7% Understanding contained a cartel provision". That may perhaps be so. It is difficult to accept that the accused do not appreciate that. Nevertheless, it would clearly be preferable, and put the matter beyond argument, for the particulars in question to make that clear and explicit. A simple way that could be achieved is by including a cross-reference in the relevant particulars to the Supply of Shares Purpose Particulars and Competition Condition Particulars or the Price of Shares Purpose Particulars and Competition Condition Particulars, as the case may be. 55 The clarity of the particulars would, however, be significantly improved if the previous shorthand formulation of the particulars - "knew or believed the facts which meant that the 5-7% Understanding contained a cartel provision" - was jettisoned in favour of a formulation which directly refers to the constituent facts relevant to the requisite knowledge that the arrangement or understanding in question contained a cartel provision. 56 If the expressions which are defined in charge 1 - the 5-7% Understanding Particulars (including the defined term 'Cartel Provision' discussed earlier in these reasons as a means by which to appropriately identify and particularise the alleged cartel provision), the Supply of Shares Purpose Particulars and the Competition Condition Particulars - are employed, the constituent facts which the accused must be alleged to know or believe are: first, that the 5-7% Understanding contained the Cartel Provision; second, that the Cartel Provision had the purpose referred to in the Supply of Shares Purpose Particulars (or the Price of Shares Purpose Particulars, as the case may be); and third, the facts referred to in the Competition Condition Particulars. 57 For the sake of clarity, the relevant particulars of knowledge would read something like: The [name of accused] knew or believed: (a) that the 5-7% Understanding contained the Cartel Provision; (b) that the Cartel Provision had the purpose referred to in the Supply of Shares Purpose Particulars; and (c) the facts referred to in the Competition Condition Particulars. 58 For the reasons given earlier and in Judgment No 1, the prosecutor is not obliged to adopt this formulation of the particulars of knowledge. It is, however, perhaps the preferable means by which to rectify the defect or deficiency in the present particulars of knowledge which has been identified by the accused. One way or another, the deficiency must be rectified.

[8]

Deficient particulars of conduct in charges 7, 8, 20 and 21 59 The accused contended that the particulars of the conduct in the 'gave effect to' charges against Citigroup and Deutsche Bank are defective in two respects. 60 The first defect was said to arise from the fact that the particulars refer to unnamed "employees or representatives" who "engaged in trading ANZ Shares acting under the direction of one or both of" Mr Tuchman and Mr McLean (in the case of charges 7 and 20) or Mr Ormaechea and Mr Richardson in the case of charges 8 and 21. The particulars also allege that the conduct was "intended to restrict or limit" Citigroup's (in the case of charges 7 and 20) and Deutsche Bank's (in the case of charges 8 and 21) "trading in ANZ Shares, including the trading of any of its related entities". It was argued that it was impermissible for the particulars to refer to unnamed employees or representative and unnamed "related entities". 61 The second defect was said to be that the particulars say no more than that Messrs Tuchman, McLean, Ormaechea and Richardson, or persons acting under their direction, "engaged in trading ANZ Shares" that was intended to have a particular result or effect. It was submitted that those particulars do not identify the substance of the conduct in question. 62 In my view, the particulars of the relevant conduct in these charges may be far from ideal or perfect. They are not, however, defective such as to warrant the quashing of the indictment. 63 The Notice filed by the prosecutor in March 2021 contained detailed particulars of the conduct which it is alleged constituted the giving effect to of the cartel provision in the 5-7% Understanding by Citigroup and Deutsche Bank. That notice has now been amended: see the Amended Notice of the Prosecution's Case dated 20 August 2021. 64 In the case of Citigroup, that conduct is alleged to have included Mr Tuchman or Mr McLean "issuing instructions or giving directions to those employees or representatives of [Citigroup] responsible for trading in ANZ Shares intended to restrict or limit [Citigroup's] trading in ANZ Shares to no more than 7% of the average daily volume of the trade in ANZ Shares (with the aim of not exceeding 5%)": see the Amended Notice at [232]. The Amended Notice then provides various details of communications between Mr Tuchman and Mr McLean and various named employees or representatives of Citigroup which relate to trading in ANZ shares, as well as particulars of the conduct of some of those employees or representatives in respect of trading in ANZ shares on behalf of Citigroup: Amended Notice at [233]-[259]. The prosecutor contends that the conduct of each of the employees or representatives can be attributed to Citigroup by reason of s 84(2) of the C&C Act. It is also alleged in the Amended Notice that Citigroup's trading in ANZ shares during the period 11 August to 11 September, except on 12 August and 11 September, was in accordance with the terms of the alleged cartel provision: Amended Notice at [260]-[261]. 65 I do not consider, in all the circumstances, that it is necessary for the relevant charges in the indictment to contain the names of each of the employees or representatives of Citigroup who are referred to in the relevant parts of the Amended Notice. The requirements of "reasonable particularity", which are discussed at length in Judgment No 1 (at [87]-[96]), do not require that level of detail in the indictment in the particular circumstances of this case. 66 It was indicated in Judgment No 1 at [234] and [278] that the particulars should identify the individuals who it is alleged gave effect to the cartel provision for or on behalf of Citigroup or Deutsche Bank. It was not, however, suggested, or intended to be suggested, in the judgment that the particulars in the indictment were required to include the names of each and every minor functionary, or officer or employee lower in the corporate hierarchy, who is alleged to have carried out functions relating to the relevant trading in ANZ shares on instructions or directions emanating from Mr Tuchman or Mr McLean (in the case of Citigroup) or Mr Ormaechea or Mr Richardson (in the case of Deutsche Bank). The requirements of reasonable particularity do not require the names of all such officers or employees to be included in the particulars in the indictment. There could be no suggestion that the accused do not know the case that they have to meet in relation to this aspect of the prosecution case. 67 Nor do I consider that particularising the conduct which gave effect to the cartel as being conduct which was intended to restrict or limit the trading of ANZ shares is a material defect in the indictment. The clarity of the particulars of conduct in the indictment could perhaps be improved, in particular by indicating, as it effectively is in the Amended Notice, that the conduct engaged in by Mr McLean and Mr Tuchman and those acting pursuant to their instructions or directions, was not only intended to restrict or limit Citigroup's trading as particularised, but that the trading was in fact so limited or restricted: see Amended Notice at [260]. It is, however, ultimately a matter for the prosecutor to determine how the charge is particularised. The question for the Court is not whether the particulars could be improved, but whether they fail to describe the alleged offence with reasonable particularity. I do not consider that the present level of detail in the charges in the indictment is such that it could be concluded that the charges are defective. The requirement of reasonable particularity is not a counsel of perfection. 68 The same can be said in respect of the relevant charges concerning Deutsche Bank giving effect to the alleged cartel provision. The Amended Notice states that between 8 August and 30 September 2015, "employees or representatives of Deutsche Bank took steps to ensure that Deutsche Bank, including through DSAL [Deutsche Securities Australia Limited - see [11] in the Amended Notice] traded in a manner consistent with the 5-7% Understanding": Amended Notice at [271]. Those steps are said to include Mr Ormaechea or Mr Richardson "issuing instructions or giving directions to those employees or representatives of Deutsche Bank responsible for trading in ANZ Shares intended to restrict or limit Deutsche Bank's trading in ANZ Shares to no more than 7% of the average daily volume of the trade in ANZ Shares (with the aim of not exceeding 5%)": Amended Notice at [271]. 69 The Amended Notice also provides various details of communications between Mr Ormaechea and Mr Richardson and various named employees or representatives of Deutsche Bank which relate to trading in ANZ shares, as well as particulars of the conduct of some of those employees or representatives in respect of trading in ANZ shares on behalf of Deutsche Bank: Amended Notice at [274]-[306]. The prosecutor alleges that the conduct of each of the employees or representatives can be attributed to Deutsche Bank by reason of s 84(2) of the C&C Act. It is also alleged in the Amended Notice that Deutsche Bank's trading in ANZ shares during the period 11 August to 30 September 2015 was in accordance with the terms of the alleged cartel provision: Amended Notice at [273] and [307]. 70 It is again difficult to see how it could seriously be contended that Deutsche Bank does not know the case it has to meet in respect of this aspect of the prosecution case. More importantly, for present purposes, for essentially the same reasons as those given in the context of the charges against Citigroup, I do not consider that the indictment has to contain the names of all of the mostly more junior employees or representatives who it is alleged carried out tasks relating to the trading, or monitoring of trading, in ANZ shares on the basis of instructions or directions emanating or originating from Mr Ormaechea or Mr Richardson. It suffices that those employees or representatives are named, to the extent they are able to be named, in the Amended Notice. The requirements of reasonable particularity in an indictment do not require otherwise. Nor, in the particular circumstances of this case, does r 3.01(6) of the Rules, as was contended by some of the accused. 71 I am equally unpersuaded that it is a material defect for the indictment to refer to Deutsche Bank's "related entities" without naming those entities. The Amended Notice refers to one relevant related entity known by the prosecutor - Deutsche Securities Australia Limited. I do not consider that the indictment is defective because that entity is not specifically referred to in the indictment, though if, so far as the prosecutor is aware, no other entity related to Deutsche Bank was responsible for any of the relevant trading, it is difficult to see why the prosecutor would not simply refer to that entity in the particulars in the indictment. 72 As for the complaint concerning the particulars of the conduct engaged in by Mr Ormaechea or Mr Richardson, or those acting on the basis of instructions or directions which emanated from them, it may again be accepted that the particulars could be improved, perhaps again by making it clear that it is alleged that the conduct that was engaged in by those persons was not only intended to restrict or limit the trading in ANZ shares as particularised, but that the conduct ensured that the trading was so limited or restricted: see Amended Notice at [271]. Again, however, the particularisation of the charges is a matter for the prosecutor and the question for the Court is not whether the particulars are perfect, or could be improved, but whether they are defective through want of reasonable particularity. While the clarity of the particulars of conduct could again perhaps be improved, I do not consider that the level of particularity in the indictment is such as to amount to a defect which would warrant the quashing of the indictment. 73 It should finally be noted that the individual accused, Messrs Tuchman, McLean, Ormaechea and Richardson, or at least some of them, raised the same or similar complaints about the particulars of conduct in the 'gave effect to' accessorial charges against them. For the reasons just given, those complaints also have no merit, at least to the extent that they do not establish any defect in the charges against them. Other arguments about the particulars of conduct made by the individual accused are considered later in the context of the charges against them.

[10]

DEFECTS IN THE CHARGES AGAINST MESSRS TUCHMAN, MCLEAN, ORMAECHEA AND RICHARDSON 75 To understand or appreciate the alleged defects in the charges against Messrs Tuchman, McLean, Ormaechea and Richardson, it is again necessary to first provide some details of those charges as they currently appear in the August Indictment. 76 Each of the charges against Messrs Tuchman, McLean, Ormaechea and Richardson is a charge that they are "taken to have contravened" the cartel offence provisions in either s 44ZZRF(1) or s 44ZZRG(1) of the C&C Act by reason of s 79(1)(c) of the C&C Act because they were "knowingly concerned in, or party to" either Citigroup or Deutsche Bank's contraventions of those cartel provisions, as the case may be. It is convenient to collectively refer to the charges against Messrs Tuchman, McLean, Ormaechea and Richardson as the accessorial charges (or accessorial offences) and the charges against Citigroup and Deutsche Bank as the principal charges (or principal contraventions or offences). 77 Charge 3 in the August Indictment, which is a charge that Mr Tuchman was knowingly concerned in, or party to, the contravention of s 44ZZRF(1) of the C&C Act by Citigroup, is pleaded and particularised in the following terms: Charge 3 The Prosecutor charges that between 7 August 2015 and 8 August 2015 at Sydney in the State of New South Wales and elsewhere, ITAY TUCHMAN was knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited of a cartel offence provision namely section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth), in that Citigroup Global Markets Australia Pty Limited intentionally made an arrangement or arrived at an understanding with Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, that contained a cartel provision, knowing or believing that arrangement or understanding contained a cartel provision. Contrary to section 44ZZRF(1) with section 79(1)(c) of the Competition and Consumer Act 2010 (Cth). Particulars of the Arrangement or Understanding The arrangement or understanding referred to in Charge 3 is the 5-7% Understanding. The 5-7% Understanding Particulars are repeated. Particulars of Conduct Itay Tuchman was knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited by reason of: (1) his role as a senior officer of Citigroup Global Markets Australia Pty Limited and his role and responsibilities in relation to the sale and offering for sale of ANZ Shares; and (2) his participation in discussions and communications on 7 and 8 August 2015 with officers, employees or representatives of one or more of the Investment Banks and/or Australia and New Zealand Banking Group Limited, during which trading in ANZ Shares was discussed including when the 5-7% Understanding was made or arrived at. Itay Tuchman: (1) intended to participate in Citigroup Global Markets Australia Pty Limited making the 5-7% Understanding; and (2) knew the facts which meant that the 5-7% Understanding contained a cartel provision. Particulars of the Cartel Provision Supply of Shares Purpose The Supply of Shares Purpose Particulars are repeated. Competition Condition The Competition Condition Particulars are repeated. 78 Charge 4, which is a charge that Mr McLean was knowingly concerned in, or party to, the contravention of s 44ZZRF(1) of the C&C Act by Citigroup, is in effectively identical terms to charge 3, save that Mr McLean is named rather than Mr Tuchman. Charges 16 and 17 are the alternative charges against Mr Tuchman and Mr McLean based on the alternative particulars of the cartel provision. They are in the same terms as charges 3 and 4, save that the Particulars of the Cartel Provision state that the "Price of Shares Purpose Particulars are repeated", as opposed to the Supply of Shares Purpose Particulars. 79 The equivalent charges against Mr Ormaechea and Mr Richardson are charges 5 and 6 (and 18 and 19 in the alternative). Charge 5, which is against Mr Ormaechea, is in the following terms: Charge 5 The Prosecutor charges that between 7 August 2015 and 8 August 2015 at Sydney in the State of New South Wales and elsewhere, MICHAEL RENE ORMAECHEA was knowingly concerned in, or a party to, the contravention by Deutsche Bank Aktiengesellschaft of a cartel offence provision namely section 44ZZRF(1) of the Competition and Consumer Act 2010 (Cth), in that Deutsche Bank Aktiengesellschaft intentionally made an arrangement or arrived at an understanding with Citigroup Global Markets Australia Pty Limited and J.P. Morgan Australia Limited in relation to the supply of Australia and New Zealand Banking Group Limited shares, that contained a cartel provision, knowing or believing that arrangement or understanding contained a cartel provision. Contrary to section 44ZZRF(1) with section 79(1)(c) of the Competition and Consumer Act 2010 (Cth). Particulars of the Arrangement or Understanding The arrangement or understanding referred to in Charge 5 is the 5-7% Understanding. The 5-7% Understanding Particulars are repeated. Particulars of Conduct Michael Ormaechea was knowingly concerned in, or a party to, the contravention by Deutsche Bank Aktiengesellschaft by reason of: (1) his role as a senior officer of Deutsche Bank Aktiengesellschaft and his role and responsibilities in relation to the sale and offering for sale of ANZ shares; and (2) his participation in discussions and communications on 7 and 8 August 2015 with officers, employees or representatives of one or more of the Investment Banks and/or Australia and New Zealand Banking Group Limited, during which trading in ANZ Shares was discussed including when the 5-7% Understanding was made or arrived at. Michael Ormaechea: (1) intended to participate in Deutsche Bank Aktiengesellschaft making the 5-7% Understanding; and (2) knew the facts which meant that the 5-7% Understanding contained a cartel provision. Particulars of the Cartel Provision Supply of Shares Purpose The Supply of Shares Purpose Particulars are repeated. Competition Condition The Competition Condition Particulars are repeated. 80 Charge 6 against Mr Richardson is in the same terms as charge 5, save that Mr Richardson is named, rather than Mr Ormaechea. Charges 18 and 19 are in the same terms as charges 5 and 6 respectively, other than that the former charges refer to the Price of Shares Purpose Particulars in the Particulars of the Cartel Provision. 81 Charge 9 is a charge that Mr Tuchman was knowingly concerned in, or party to, the contravention of s 44ZZRG(1) of the C&C Act by Citigroup. It is pleaded and particularised in the August Indictment in the following terms: Charge 9 The Prosecutor charges that between 8 August 2015 and 11 September 2015 at Sydney in the State of New South Wales and elsewhere, ITAY TUCHMAN was knowingly concerned in, or a party to the contravention by Citigroup Global Markets Australia Pty Limited of a cartel offence provision namely section 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth), in that Citigroup Global Markets Australia Pty Limited intentionally gave effect to a cartel provision contained in an arrangement or understanding with Deutsche Bank Aktiengesellschaft and J.P. Morgan Australia Limited 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)(c) of the Competition and Consumer Act 2010 (Cth). Particulars of the Arrangement or Understanding The arrangement or understanding referred to in Charge 9 is the 5-7% Understanding. The 5-7% Understanding Particulars are repeated. Particulars of Conduct Itay Tuchman was knowingly concerned in, or a party to, the contravention by Citigroup Global Markets Australia Pty Limited between 8 August 2015 and 11 September 2015 by assisting to ensure that Citigroup Global Markets Australia Pty Limited and its related entities would restrict or limit their daily trading in ANZ Shares between 11 August 2015 and 11 September 2015 to no more than 7% of the average daily volume of the trade in ANZ Shares (with the aim of not exceeding 5%). Itay Tuchman: (1) knew the facts which meant that the 5-7% Understanding contained a cartel provision; and (2) intended to participate in Citigroup Global Markets Australia Pty Limited giving effect to the cartel provision. Particulars of the Cartel Provision Supply of Shares Purpose The Supply of Shares Purpose Particulars are repeated. Competition Condition The Competition Condition Particulars are repeated. 82 Charge 10, which is a charge that Mr McLean was knowingly concerned in, or party to, the contravention of s 44ZZRG(1) of the C&C Act by Citigroup, is in effectively identical terms to charge 9, save that Mr McLean is named rather than Mr Tuchman. Charges 22 and 23 are the alternative charges against Mr Tuchman and Mr McLean based on the Price of Shares Purpose Particulars. They are otherwise in the same terms as charges 9 and 10. 83 The equivalent s 44ZZRG(1) charges against Mr Ormaechea and Mr Richardson are charges 11 and 12 (and 24 and 25 in the alternative). Charge 11, which is against Mr Ormaechea, is in the following terms: Charge 11 The Prosecutor charges that between 8 August 2015 and 30 September 2015 at Sydney in the State of New South Wales and elsewhere, MICHAEL RENE ORMAECHEA was knowingly concerned in, or a party to the contravention by Deutsche Bank Aktiengesellschaft of a cartel offence provision namely section 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth), in that Deutsche Bank Aktiengesellschaft intentionally gave effect to a cartel provision contained in an arrangement or understanding with Citigroup Global Markets Australia Pty Limited and J.P. Morgan Australia Limited 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)(c) of the Competition and Consumer Act 2010 (Cth). Particulars of the Arrangement or Understanding The arrangement or understanding referred to in Charge 11 is the 5-7% Understanding: The 5-7% Understanding Particulars are repeated. Particulars of Conduct Michael Ormaechea was knowingly concerned in, or a party to, the contravention by Deutsche Bank Aktiengesellschaft between 8 August 2015 and 30 September 2015 by assisting to ensure that Deutsche Bank Aktiengesellschaft and its related entities would restrict or limit their daily trading in ANZ Shares between 11 August 2015 and 30 September 2015 to no more than 7% of the average daily volume of the trade in ANZ Shares (with the aim of not exceeding 5%). Michael Ormaechea: (1) knew the facts which meant that the 5-7% Understanding contained a cartel provision; and (2) intended to participate in Deutsche Bank Aktiengesellschaft giving effect to the cartel provision. Particulars of the Cartel Provision Supply of Shares Purpose The Supply of Shares Purpose Particulars are repeated. Competition Condition The Competition Condition Particulars are repeated. 84 Charge 12 against Mr Richardson is in the same terms as charge 11, save that Mr Richardson is named, rather than Mr Ormaechea. Charges 24 and 25 are in the same terms as charges 11 and 12 respectively, other than that they refer to the Price of Shares Purpose Particulars in the Particulars of the Cartel Provision.

[12]

Need to include particulars of the principal offences 87 The individual accused contended that the charges against them were required to include particulars of the principal offences by either Citigroup or Deutsche Bank in which they are alleged to have been knowingly concerned or party to. It was noted, in that regard, that charge 13, which is the charge which alleges that ANZ aided, abetted, counselled or procured J.P. Morgan to contravene s 44ZZRG(1) of the C&C Act, included detailed particulars of the alleged contravention by J.P. Morgan. It was submitted that similar particulars of the principal charges should be included in all the accessorial counts. 88 The prosecutor appeared to concede that the accessorial charges should contain some particulars of the relevant principal contravention or offence. The prosecutor did not, however, agree that the accessorial charges should include full particulars of the principal contraventions. Rather, it was proposed that the accessorial charges, other than charges 13 and 26, include particulars of the relevant principal contraventions by providing a cross-reference to the charge which includes those particulars. For example, in the case of charge 3 in the Proposed Indictment, which is the charge alleging that Mr Tuchman was knowingly concerned in, or party to, the contravention of s 44ZZRF(1) of the C&C Act by Citigroup, the prosecutor proposed that the charge include a subheading "Particulars of Citigroup Global Markets Australia Pty Limited's Contravention" under which it is stated "Refer to Charge 1". 89 That is, in my view, a satisfactory means by which particulars of the principal contravention may be included in the accessorial charges other than charges 13 and 26. It would, in all the circumstances, be unnecessary, repetitive and potentially confusing to require each of the accessorial counts to include full particulars of the principal contravention to which they relate. That would, for example, require charge 3 to essentially include all the particulars of charge 1, as well as particulars of Mr Tuchman's knowing concern in that offence. The indictment is already very lengthy and the particulars provided in relation to each of the charges are already comparatively extensive. The cross-referencing method of providing the relevant particulars of the principal contraventions in the Proposed Indictment is appropriate and sufficient to meet the requirement of reasonable particularity in the particular and somewhat unique circumstances of this case. It might, however, be preferable to say something a little more helpful and illuminating than "Refer to Charge 1". It would, for example, be a bit clearer if the particulars said something like: "The facts relating to the contravention by Citigroup are set out in Charge 1".

[13]

Knowledge of the facts that gave rise to the principal offences 90 As was made clear in Judgment No 1, an essential element of each of the accessorial offences is that the accused knew "the essential facts constituting the particular contravention in question": Yorke v Lucas (1985) 158 CLR 661 at 670; see Judgment No 1 at [28] and [34]. That is in addition to the element that the accused, by their conduct, participated in or associated themselves with the principal contravention. 91 The accused contended that the accessorial counts do not contain proper or adequate particulars of the knowledge element. There is some merit in that contention. 92 As has been seen, the accessorial charges in relation to the s 44ZZRF(1) contraventions include particulars to the effect that the accused intended to participate in the contravention and "knew the facts which meant that the 5-7% Understanding contained a cartel provision". Charge 3, for example, alleges that Mr Tuchman: (1) intended to participate in Citigroup Global Markets Australia Pty Limited making the 5-7% Understanding; and (2) knew the facts which meant that the 5-7% Understanding contained a cartel provision. 93 Similarly, the accessorial counts in relation to the s 44ZZRG(1) contraventions include particulars to the effect that the accused "knew the facts which meant that the 5-7% Understanding contained a cartel provision" and intended to participate in the contravention. Charge 9, for example, alleges that Mr Tuchman: (1) knew the facts which meant that the 5-7% Understanding contained a cartel provision; and (2) intended to participate in Citigroup Global Markets Australia Pty Limited giving effect to the cartel provision. 94 As discussed earlier in the context of the charges against Citigroup and Deutsche Bank, the use of the shorthand particular "knew the facts which meant that the 5-7% Understanding contained a cartel provision" is potentially inadequate or problematic and should be revisited. Even putting that issue to one side, there is an additional problem with this formulation of the particulars in the context of the accessorial charges. The difficulty is that, as the accused submitted, it is not sufficient for the charges to limit the particulars of knowledge to knowledge of the facts which meant that the 5-7% Understanding contained a cartel provision. To be knowingly concerned in, or party to, the principal contraventions, the accused must be shown to have known or believed all of the essential facts of those contraventions, not just the fact that the relevant arrangement or understanding contained a cartel provision. The essential facts may include facts relating to the state of mind (in this case, knowledge or belief, and intention) of the principal offender: Edwards v The Queen (1992) 173 CLR 653 at 657-658; Stokes v The Queen (1990) 51 A Crim R 25 at 38 (Stokes & Difford); Moustafa v The Queen (2014) 43 VR 418; [2014] VSCA 270 at [95]-[96]. 95 In the case of the s 44ZZRF(1) accessorial contraventions, the essential facts constituting the principal contraventions are, in summary: first, that the relevant principal (either Citigroup or Deutsche Bank) made the relevant arrangement, or arrived at the relevant understanding (the 5-7% Understanding); second, that the relevant principal intended to make or arrive at the 5-7% Understanding; third, that the 5-7% Understanding contained a cartel provision (the Cartel Provision); and fourth, that the principal knew or believed that the 5-7% Understanding contained a cartel provision. 96 In the case of the s 44ZZRG(1) accessorial contraventions, the essential facts constituting the principal contraventions are, in summary: first, that an arrangement or understanding (the 5-7% Understanding) containing a cartel provision existed; second, that the relevant principal (either Citigroup or Deutsche Bank) knew or believed that the 5-7% Understanding contained a cartel provision; third, the principal gave effect to the cartel provision; and fourth, that the principal intended to give effect to the cartel provision. 97 The particulars of knowledge in the accessorial charges should, in one way or another, state that the accused knew all of the essential facts constituting the principal contraventions, including those that relate to the state of mind of the principal offender. The particulars of the accessorial charges in the August Indictment do not do so. 98 The prosecutor appeared to concede that the particulars of knowledge in the accessorial charges in the August Indictment were deficient in that respect, or at least that the particulars should be supplemented. To meet this complaint by the accused, the prosecutor proposed, in the Proposed Indictment, that additional words be added to the existing particulars of knowledge. In the case of charge 3, for example, the prosecutor suggested that the particulars could be reframed as follows (the underlined portions reflecting the added words): Itay Tuchman: (1) intended to participate in Citigroup Global Markets Australia Pty Limited making the 5-7% Understanding; and (2) knew the facts which meant that Citigroup Global Markets Australia Pty Limited made the 5-7% Understanding which contained a cartel provision. 99 In the case of charge 9, the prosecutor suggested that the particulars could be reframed as follows (the underlined portions again reflecting the added words and the strikethrough reflecting the words to be deleted from the current particulars): Itay Tuchman: (1) knew the facts which meant that Citigroup Global Markets Australia Pty Limited was giving effect to the cartel provision in the 5-7% Understanding contained a cartel provision; and (2) intended to participate in Citigroup Global Markets Australia Pty Limited giving effect to the cartel provision. 100 Equivalent suggestions were made in respect of the other accessorial charges. 101 This proposed formulation of the relevant particulars may go some way towards addressing the deficiency in the particulars of knowledge in the accessorial charges in the August Indictment. It does not, however, go far enough. It also continues to employ the expression "knew the facts which meant" which, particularly in this context, is awkward, unnecessary and potentially confusing. 102 In relation to charge 3, while the proposed particulars, which appear under the subheading "Particulars of Itay Tuchman's Contravention", refer (albeit in a fairly awkward way) to Mr Tuchman's knowledge that Citigroup made or arrived at the 5-7% Understanding and that the 5-7% Understanding contained a cartel provision, they do not clearly refer to Mr Tuchman's knowledge that Citigroup intended to make or arrive at the 5-7% Understanding, or that Citigroup knew or believed that the 5-7% Understanding contained a cartel provision. It could perhaps be argued that the fact that Mr Tuchman knew those matters is implicit in the particulars, especially given that it is made tolerably clear that Citigroup's knowledge of those matters is essentially attributed to it as a result of Mr Tuchman's knowledge. Be that as it may, the particulars should express in clear terms that Mr Tuchman is alleged to have known those matters. 103 Essentially the same problem exists in relation to the proposed particulars in charge 9 in the Proposed Indictment, which appear under the subheading "Particulars of Citigroup Global Markets Australia Pty Limited's Contravention". While the reformulated particulars state (albeit again in a somewhat awkward way) that Mr Tuchman knew that Citigroup was giving effect to the cartel provision in the 5-7% Understanding, they do not clearly state that Mr Tuchman knew that Citigroup knew or believed that the 5-7% Understanding contained a cartel provision, or that Citigroup intended to give effect to that cartel provision. 104 One shorthand way to rectify the alleged deficiency concerning the particulars of knowledge in the case of the accessorial offences is to particularise the accused's knowledge of the facts of the principal contravention by way of cross-reference to the particularised facts in the charges against the relevant principal. The particulars of knowledge in respect of charge 3, for example, could state that Mr Tuchman "knew the facts constituting the contravention by Citigroup Global Markets Australia Pty Limited (refer to Charge 1)". Similarly, the particulars of knowledge in charge 9, could read that Mr Tuchman "knew the facts constituting the contravention by Citigroup Global Markets Australia Pty Limited (refer to Charge 7)". 105 In my view, this shorthand means of providing the alleged accessory's knowledge of the facts constituting the principal contravention may be sufficient and appropriate in the particular circumstances of this case. That is because the prosecution case against each of the relevant principal offenders (Citigroup and Deutsche Bank), as clearly particularised in the charges, is in effect that the knowledge of the principal offenders is essentially derived from the knowledge of the alleged accessories and attributed to the principal by reason of s 84(2) of the C&C Act. It follows that, in essence, the prosecution case is that the knowledge of the accessory is effectively the same as the knowledge of the principal. 106 Using charges 1 and 3 as an example, the case against Citigroup in charge 1 includes a particular to the effect that the states of mind of Mr Tuchman and Mr McLean are attributable to Citigroup because, in participating in the relevant discussions, they were acting on behalf of Citigroup and within the scope of their actual or apparent authority. It is readily apparent, in those circumstances, that when it comes to charge 3, the prosecution case is in effect that Mr Tuchman knew the facts relating to the alleged contravention by Citigroup (being the contravention which is the subject of charge 1) because his knowledge is alleged to be attributed to Citigroup in respect of that charge. While this issue was not the subject of any argument or submission, there does not appear to me to be any reason in principle why it would not be sufficient to particularise Mr Tuchman's knowledge of the facts constituting the contravention in charge 1 by way of cross-reference to that charge. 107 It may, of course, be accepted that detailed and careful directions will need to be given to the jury in due course in relation to the 'knowledge' element. Those directions will need to step through each of the ingredients or essential facts of the relevant principal offence which must be proved to have been known to, or believed by, the alleged accessory. The issue at this point, however, is what is required to be included in the indictment. It is seldom the case that an indictment alleging that a person was knowingly concerned in an offence by another person includes detailed particulars of the alleged accessory's knowledge of each of the ingredients or essential facts of the principal offence. The terms of the indictment in Edwards (at 656) are fairly typical and demonstrate that point. 108 If, however, the prosecutor elects not to employ this cross-referencing method of particularising the knowledge element in the accessorial charges, it would be necessary for the particulars of that element in the charge to include knowledge of all of the essential facts constituting the principal offence. For example, in the case of charge 3 against Mr Tuchman, it would be necessary for particulars to be provided, in concise but less obtuse terms than those suggested by the prosecutor, which make it clear that Mr Tuchman had knowledge of each of the essential facts constituting the principal contravention in charge 1: that Citigroup made or arrived at the 5-7% Understanding; that Citigroup intended to make or arrive at the 5-7% Understanding; that Citigroup knew or believed that the 5-7% Understanding contained the Cartel Provision; and that Citigroup knew or believed that the Cartel Provision had the purpose referred to in the Supply of Shares Purpose Particulars and knew the facts referred to in the Competition Condition Particulars. 109 Similarly, if the cross-referencing method of particularising the knowledge element is not employed in respect of charge 9, the particulars of knowledge in that charge should concisely state that Mr Tuchman had knowledge of each of the essential facts constituting the contravention by Citigroup in charge 7. That is, that Mr Tuchman knew the following facts: the existence of the 5-7% Understanding; that Citigroup knew or believed that the 5-7% Understanding contained the Cartel Provision, which had the purpose referred to in the Supply of Shares Purpose Particulars; the facts referred to in the Competition Condition Particulars; that Citigroup gave effect to the Cartel Provision; and that Citigroup intended to give effect to the Cartel Provision. 110 The equivalent particulars of knowledge would need to be provided in respect of the accessorial charges against Messrs McLean, Ormaechea and Richardson if the cross-referencing method of particularising knowledge is not employed. 111 It is necessary to address, in this context, an additional submission that was made on behalf of Mr Ormaechea in relation to the knowledge element in the accessorial charges. It was submitted that the particulars of knowledge in respect of charge 5 (the charge that Mr Ormaechea was knowingly concerned in, or party to, the contravention of s 44ZZRF(1) of the C&C Act by Deutsche Bank) were required to include a particular that Mr Ormaechea knew or believed that "Deutsche Bank, Citigroup and J.P. Morgan knew or believed that the purpose of the 5-7% Understanding was to directly or indirectly restrict or limit the number of ANZ shares that the Investment Banks would sell or offer for sale from 10 August 2015 to prospective purchasers of ANZ Shares on securities exchange" - that is, the Supply of Shares Purpose. 112 In Mr Ormaechea's submission, it is not sufficient to allege in the particulars that he knew or believed that Deutsche Bank knew or believed that the arrangement or understanding (or the cartel provision contained in it) had that purpose. Rather, it is necessary to state that he knew or believed that each of Citigroup, Deutsche Bank and J.P. Morgan knew or believed that the relevant cartel provision had that purpose. 113 Mr Ormaechea relied, in support of that submission, on the decision of the High Court in News Limited v South Sydney District Rugby League Football Club Limited (2003) 215 CLR 563; [2003] HCA 45 (News v Also-rans). In that case, it was held, albeit in the context of a different, though substantially similar, statutory provision, that for a provision in a contract, arrangement or understanding to have a particular purpose, that purpose had to be the subjective purpose of each of the parties to the contract, arrangement or understanding: see News v Also-rans at [18] (Gleeson CJ), [38], [41] and [43] (McHugh J), [59]-[60] and [66] (Gummow J) and [212] (Callinan J). 114 If and when this matter gets to trial, it will no doubt be necessary at an appropriate point in time to give careful directions of law to the jury concerning the elements of the offence. There is much to be said for the proposition that, for the prosecutor to prove that the alleged cartel provision in the 5-7% Understanding had the purpose identified in the Supply of Shares Purpose Particulars (or, in the alternative, the Price of Shares Purpose Particulars), it will be necessary for the prosecutor to prove that each of the parties to the 5-7% Understanding (Citigroup, Deutsche Bank and J.P. Morgan) had that subjective purpose. 115 At this point in time, however, the Court is only dealing with what is required in terms of particulars of the charges in the indictment. In my view, the requirement in r 3.01(4)(c) of the Rules that the statement of an offence in an indictment describe the nature of the alleged offence "concisely and with reasonable particularity" does not require the description of the accessorial charges to descend to the level of detail and particularity contended by Mr Ormaechea. Nor does the common law requirement of reasonable particularity. If the cross-referencing method of providing appropriate particulars of knowledge is employed, the particulars need only state that Mr Ormaechea knew or believed the facts constituting the contraventions by Deutsche Bank in charges 2 or 8 (or 15 or 21) as the case may be. If that method is not employed, it would suffice, in the case of the accessorial charges against Mr Ormaechea, that it be made clear in the charges that Mr Ormaechea knew or believed, relevantly in this context, that Deutsche Bank knew or believed that the 5-7% Understanding contained the Cartel Provision and that Deutsche Bank knew or believed the Cartel Provision had the purpose referred to in the Supply or Price of Shares Purpose Particulars.

[14]

Sufficiency of the particulars of conduct 116 The accused contended that the particulars of the conduct of the accused in respect of the accessorial charges relating to the contraventions of s 44ZZRF(1) are deficient. It was submitted, in that regard, that it was not sufficient to particularise the conduct of the accused as being their "participation in discussions". That description of their conduct was said to be "nondescript" and "meaningless". Mr Tuchman also complained that a paragraph in the Amended Notice ([158]) suggested that the prosecution case against him was that he approved of Citigroup's entry into the 5-7% Understanding by not raising any objection to it, but that was not how his conduct had been particularised in the indictment. 117 I am not persuaded that the particulars of the conduct in respect of the accessorial charges in respect of the s 44ZZRF(1) contraventions are deficient as contended by the accused. The reference to "participation in discussions" must be read in the context of the other particulars, including that the individual accused were all senior officers of either Citigroup or Deutsche Bank and that the discussions and communications in which they participated included the very discussions and communications which gave rise to the 5-7% Understanding. As I made clear in Judgment No 1, the particulars in the indictment plainly do not have to include the evidentiary basis for the charges, or include the level of detail of the particulars included in the Notice, or, in this specific context, include details of what, if anything, was said and by whom during the relevant discussions and communications: Judgment No 1 at [183]. While the particulars of conduct may not be perfect or ideal, it does not follow that they are deficient or defective such as to warrant the quashing of the charges. 118 Mr Tuchman's specific complaint also does not reveal any formal defect in the particulars of conduct in the charges. If anything, it is a complaint about the clarity or consistency of the Amended Notice. It is also a complaint that appears to be based on an overly narrow and restrictive reading of the particulars in the Amended Notice. I do not accept that the particulars do not make the case that Mr Tuchman has to meet sufficiently clear. 119 Paragraph 158 of the Amended Notice states that neither Mr Tuchman nor Mr McLean "raised any objection" to Citigroup entering into the 5-7% Understanding and "thereby approved [Citigroup] entering into it (including tacitly or implicitly by their conduct)". Considered in isolation, that paragraph would tend to suggest that the prosecution case against Mr Tuchman and Mr McLean is that they indicated their assent to the arrangement or understanding simply by silence or conduct. Read fairly and in the context of other parts of the Amended Notice, however, it is tolerably clear that the prosecution case is not so limited. The Amended Notice includes detailed particulars of the actions of and communications between various officers and representatives of the Investment Banks, including Mr Tuchman and Mr McLean, on 7 and 8 August 2015. The particulars include specific statements made by Mr Tuchman and Mr McLean. It is tolerably clear that the prosecution case is that Mr Tuchman's and Mr McLean's knowing involvement or participation in Citigroup's contravention is demonstrated by their overall participation in those discussions and communications which, considered as a whole, resulted in the 5-7% Understanding. Whether the evidence ultimately supports that element of the prosecution case is another question altogether. 120 The accused also contended that the particulars of the conduct of the accused in respect of the accessorial charges relating to the contraventions of s 44ZZRG(1) were deficient. Those complaints have perhaps more substance. 121 The conduct by which it is alleged that each of Messrs Tuchman, McLean, Ormaechea and Richardson were knowingly concerned in, or party to, the contraventions of s 44ZZRG(1) by Citigroup and Deutsche Bank respectively is described as "assisting to ensure" that Citigroup or Deutsche Bank, as the case may be, "would restrict or limit their daily trading" so that, in effect, their trading complied with the terms of the cartel provision in the 5-7% Understanding. The accused submitted that that is not a sufficient description of what it is alleged that they actually did. 122 The accused also contended that there was a disjunct between the particulars of conduct in the accessorial charges and the particulars of conduct in the principal charges. As was noted earlier, the particulars of conduct in the s 44ZZRG(1) charges against Citigroup and Deutsche Bank are that: "by one or more of [their] officers, employees or representatives", being (among the accused) Mr Tuchman and Mr McLean in the case of Citigroup and Mr Ormaechea and Mr Richardson in the case of Deutsche Bank, "or employees or representatives engaged in trading ANZ Shares acting under the direction of one or both of them, engaging in conduct between 8 August 2015 and 11 September 2015 that was intended to restrict or limit [Citigroup's or Deutsche Bank's, as the case may be] trading in ANZ Shares, including the trading of any of its related entities" so that, in effect, they complied with the terms of the alleged cartel provision. The individual accused contended that there was a disjunct between the particular that they were "assisting to ensure" that trading would be restricted or limited, in the accessorial charges, and the particular of conduct in the principal charges, being "engaging in conduct … that was intended to restrict or limit". 123 It may once again be accepted that the particulars of conduct in the s 44ZZRG(1) accessorial charges are less than ideal or perfect. The expression "assisting to ensure" is somewhat opaque and nebulous. The prosecutor should reflect on whether the particulars of conduct could be improved. In particular, if, as would appear from the terms of the Amended Notice, the central or essential allegations against the alleged accessories is that they gave directions or instructions to others relating to the trading, or monitoring of trading, so as to ensure that it was in accordance with the alleged cartel provision, that should be reflected in the terms of the indictment. 124 On balance, however, I am not persuaded that the particulars are deficient such that they constitute a formal defect which would warrant quashing these counts in the indictment. Nor am I persuaded that the alleged disjunct between the particulars of conduct in the principal charges and the accessorial charges means that the particulars are deficient or defective. 125 The Amended Notice contains detailed particulars of what the prosecution alleges that Messrs Tuchman, McLean, Ormaechea and Richardson did to give effect to the alleged cartel provision: see in particular [232]-[258], [268] and [270] in the case of Mr Tuchman and Mr McLean and [271]-[305], [313] and [315] in the case of Mr Ormaechea and Mr Richardson. It is difficult to see how the accused could contend that they do not know the case that they have to meet in relation to this aspect of the charges against them. It is tolerably clear that the prosecutor does not allege that Messrs Tuchman, McLean, Ormaechea or Richardson were themselves directly involved in the mechanics or minutiae of the relevant trading in ANZ shares by Citigroup and Deutsche Bank respectively. That is perhaps hardly surprising given their senior positions and the fact that it would appear that share trading was generally effected by officers and employees in separate divisions of the banks. The allegation, in broad terms, is that Messrs Tuchman, McLean, Ormaechea and Richardson issued instructions and directions to others who were more directly involved in the trading so as to ensure that such trading as occurred was in accordance with the cartel provision. They also monitored the sell-down and updated others within the bank as to its progress. 126 As was made clear in Judgment No 1, the particulars of conduct included in the indictment do not have to descend to the level of detail in the Amended Notice, but rather have to concisely distil or summarise the nature or effect of that conduct. The question, in short terms, is whether the particulars included in the indictment - "assisting to ensure" that trading would be restricted or limited in accordance with the cartel provision - is an adequate summary or distillation of this factual element of the charges. As already indicated, in my view the distillation is far from ideal and certainly not perfect. It could no doubt be improved. This is not, however, a counsel of perfection. I am not persuaded that the particulars are sufficiently deficient as to constitute a formal defect, or such as to warrant these charges in the indictment being quashed. 127 As for the alleged disjunct, the prosecutor's explanation for the different particulars of the conduct in the principal charges and the accessorial charges was that the conduct of Citigroup and Deutsche Bank as described in the charges against them is not limited to the conduct of the alleged accessories; Mr Tuchman and Mr McLean, in the case of Citigroup, and Mr Ormaechea and Mr Richardson, in the case of Deutsche Bank. It also includes the conduct of other employees or representatives who were acting under their direction. That is why the conduct as described in the charges against Citigroup and Deutsche Bank was framed in broader terms, as conduct which was intended to restrict or limit the trading in ANZ shares, whereas the conduct as described in the accessorial charges is "assisting to ensure" that the trading was conducted in that way. 128 That would appear to be a reasonable and satisfactory explanation for the different particulars in the charges. I do not consider that any difference or disjunct between the particulars is sufficient to constitute a formal defect, or is sufficient to warrant an order quashing the charges.

[15]

Knowingly concerned in, or party to, the contraventions 129 Some of the accused submitted that the expression "knowingly concerned in, or party to" in s 79(1)(c) of the C&C Act is not a composite expression. Rather, the concept of being "knowingly concerned" in a contravention is separate and distinct from the concept of being "party to" a contravention. While the accused did not go so far as to submit that it was a formal defect for the charges to include the entire expression, as opposed to electing to charge that the accused were either "knowingly concerned in" or "party to" the contraventions, they contended that it would be preferable for the prosecutor to make such an election. 130 The submission that an allegation that a person is "knowingly concerned in" a contravention is separate and distinct from an allegation that they were a "party to" the contravention finds some support in the judgment of the plurality in Yorke v Lucas at 670. It is not, however, entirely clear what the difference between the two concepts is. Both concepts involve the accused, by their conduct, participating in the contravention with knowledge of all the essential elements of the contravention. There would also appear to be cases where an accused has been charged with being "knowingly concerned" in an offence, without the addition of the allegation "or party to": see, for example, R v Tannous (1987) 10 NSWLR 303 at 308. 131 It is unnecessary to reach a concluded view in respect of this issue, particularly as none of the accused contended that the accessorial charges in the indictment were defective because they charged that the accused were "knowingly concerned in, or party to" the principal contraventions. In those circumstances, I do not consider that it is open to me to order the prosecutor to amend the charges so that they allege only that the accused were "knowingly concerned in" the contraventions, or that they were a "party to" the contraventions. 132 That said, there would appear to be some merit in the submission by the accused that it would be preferable for the charges to be limited to the allegation that they were "knowingly concerned in" the contraventions. The charges are already extremely complex. Limiting the allegations to being "knowingly concerned" would be a step, albeit a very small one, towards simplifying the charges. The desirability of simplifying the charges by avoiding unnecessary verbiage and not necessarily pleading every available alternative, or not necessarily including every word of the offence provisions, was referred to in Judgment No 1 (at [306]). It would also avoid possible confusion arising from the fact that the factual allegations already in effect include the allegation that Citigroup and Deutsche Bank were parties to the alleged arrangement or understanding. The prosecutor should perhaps give some consideration to limiting the allegation in the accessorial charges to the accused being "knowingly concerned in" the alleged contraventions. It might also be observed in this context that the charges as originally filed in the Local Court were expressed only in terms of the individual accused being "knowingly concerned" in the contraventions by the investment banks.

[18]

Charge 13 in the August Indictment 136 The charges against ANZ and Mr Moscati are charges 13 and 26, charge 26 being an alternative charge based on the different cartel provision particulars. It suffices to consider charge 13. 137 Charge 13 is, in summary, a charge that ANZ and Mr Moscati aided, abetted, counselled or procured a contravention of s 44ZZRG(1) of the C&C Act by J.P. Morgan, that contravention being that J.P. Morgan gave effect to the cartel provision in the 5-7% Understanding. The charge is pleaded and particularised in the August Indictment in the following terms: Charge 13 The Prosecutor charges that between 7 August 2015 and 28 August 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 intentionally 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). Particulars of J.P. Morgan Australia Limited's Contravention The arrangement or understanding referred to in Charge 13 is the 5-7% Understanding. The 5-7% Understanding Particulars are repeated. J.P. Morgan Australia Limited gave effect to the cartel provision in the 5-7% Understanding by one or more of its officers, employees or representatives, namely one or more of Oliver Bainbridge, Andrew Best, Mark Dewar, Richard Galvin, Jeffrey Herbert-Smith and Mark Leung or employees or representatives engaged in trading ANZ Shares acting under the direction of one or more of them, engaging in conduct between 8 August 2015 and 28 August 2015 that was intended to restrict or limit trading in ANZ Shares by J.P. Morgan Australia Limited or any of its related entities to no more than 7% of the average daily volume of the trade in ANZ Shares (with the aim of not exceeding 5%). Those officers, employees or representatives were acting within the scope of their actual or apparent authority as officers, employees or representatives of J.P. Morgan Australia Limited. Their conduct is accordingly attributable to J.P. Morgan Australia Limited. In engaging in their conduct, one or more of Oliver Bainbridge, Andrew Best, Mark Dewar, Richard Galvin, Jeffrey Herbert-Smith and Mark Leung: (1) knew or believed the facts which meant that the 5-7% Understanding contained a cartel provision; and (2) intended to give effect to the cartel provision. Oliver Bainbridge, Andrew Best, Mark Dewar, Richard Galvin, Jeffrey Herbert-Smith and Mark Leung were acting within the scope of their actual or apparent authority as officers, employees or representatives of J.P. Morgan Australia Limited. Their states of mind are accordingly attributable to J.P. Morgan Australia Limited. The Supply of Shares Purpose Particulars are repeated The Competition Condition Particulars are repeated. Particulars of Moscati's and Australia and New Zealand Banking Group Limited's Conduct Richard Moscati aided, abetted, counselled or procured the contravention by J.P. Morgan Australia Limited by encouraging J.P. Morgan Australia Limited to restrict or limit trading in ANZ Shares from 10 August 2015 in accordance with an arrangement or understanding between J.P. Morgan Australia Limited and the other Investment Banks. Richard Moscati: (1) knew or believed the facts which meant that the arrangement or understanding contained a cartel provision; and (2) intended to encourage J.P. Morgan Australia Limited to give effect to the cartel provision. Richard Moscati was acting within the scope of his actual or apparent authority as an officer, employee or representative of Australia and New Zealand Banking Group Limited. His conduct and state of mind are accordingly attributable to Australia and New Zealand Banking Group Limited. Australia and New Zealand Banking Group Limited thereby aided, abetted, counselled or procured the contravention by J.P. Morgan Australia Limited. Particulars of the Cartel Provision Supply of Shares Purpose (1) The purpose of the provision contained in the arrangement or understanding was to directly or indirectly restrict or limit the number of ANZ Shares that the Investment Banks would sell or offer for sale from 10 August 2015 to prospective purchasers of ANZ Shares on securities exchanges. (2) The provision contained in the arrangement or understanding thereby satisfied the purpose condition in section 44ZZRD(3)(a)(iii) of the Competition and Consumer Act 2010 (Cth) as it had the purpose of, directly or indirectly, restricting or limiting the supply, or likely supply, of services (being ANZ Shares) to persons or classes of persons (being prospective purchasers of ANZ Shares) by any or all of the Investment Banks. Competition Condition (1) At least two of the Investment Banks were, or were likely to be, in competition with each other in relation to the sale of ANZ Shares which they held, or were likely to hold, to prospective purchasers of ANZ Shares on securities exchanges. (2) The competition condition in section 44ZZRD(4) of the Competition and Consumer Act 2010 (Cth) is satisfied in relation to the provision contained in the arrangement or understanding as at least two of the Investment Banks were, or were likely to be, in competition with each other in relation to the supply of services (being ANZ Shares). 138 The following points should be noted concerning this charge. 139 First, unlike all of the other accessorial charges, the principal contravener relevant to charge 13 is J.P. Morgan. The indictment does not include any charge against J.P. Morgan. That is because, as was noted in Judgment No 1, J.P. Morgan has been granted immunity from prosecution. 140 Second, unlike the other accessorial charges, charge 13 contains fairly detailed particulars of the principal contravention by J.P. Morgan. That is because it is not possible to provide those particulars by way of cross-reference to any of the other charges. 141 Third, the particulars of J.P. Morgan's alleged contravention - which appear under the subheading "Particulars of J.P. Morgan Australia Limited's Contravention" - indicate that the alleged cartel provision relevant to J.P. Morgan's contravention is the cartel provision contained in the 5-7% Understanding. In that regard, the particulars repeat the 5-7% Understanding Particulars, the Supply of Shares Purpose Particulars and the Competition Condition Particulars. It follows that the contravention by J.P. Morgan is essentially particularised in the same way as the 'gave effect to' charges against Citigroup and Deutsche Bank (charges 7 and 8) have been particularised. It also follows that, for the reasons given earlier in the context of those charges, the particulars of J.P. Morgan's contravention are defective because, amongst other things, they do not identify the terms of the relevant cartel provision and the particulars of knowledge are inadequate. 142 Fourth, the particulars of the alleged conduct by Mr Moscati and ANZ - which appear under the subheading "Particulars of Moscati's and Australia and New Zealand Banking Group Limited's Conduct" - state that Mr Moscati (and through him ANZ) encouraged J.P. Morgan to "restrict or limit trading in ANZ Shares from 10 August 2015 in accordance with an arrangement or understanding between J.P. Morgan Australia Limited and the other Investment Banks". Read in the context of the particulars of J.P. Morgan's contravention, that would tend to suggest that the arrangement or understanding that it is alleged Mr Moscati and ANZ knew and intended to encourage J.P. Morgan to act in accordance with was the 5-7% Understanding. That, however, does not appear to be the case. The particulars of Mr Moscati's and ANZ's conduct do not repeat the 5-7% Understanding Particulars. That does not appear to be an oversight. The prosecutor apparently no longer contends that Mr Moscati and ANZ knew the precise terms of the 5-7% Understanding or the cartel provision allegedly contained in it. 143 Fifth, the particulars of Mr Moscati's and ANZ's conduct do not allege, in terms, that Mr Moscati and ANZ encouraged J.P. Morgan to act in accordance with a cartel provision in an arrangement or understanding. Rather, they allege that they encouraged J.P. Morgan to restrict or limit trading in ANZ shares in accordance with "an arrangement or understanding". That is despite the fact that the central allegation in the charge itself is that the cartel offence provision that Mr Moscati and ANZ aided, abetted, counselled or procured J.P. Morgan to contravene was one whereby J.P. Morgan "intentionally gave effect to a cartel provision in an arrangement or understanding". The particulars also state that Mr Moscati "knew or believed the facts which meant that the arrangement or understanding contained a cartel provision" and that he "intended to encourage [J.P. Morgan] to give effect to the cartel provision". That tends to suggest that the failure to directly allege in the particulars that Mr Moscati and ANZ encouraged J.P. Morgan to act in accordance with a cartel provision in an arrangement or understanding is an oversight. 144 Sixth, charge 13 includes - under the subheading "Particulars of the Cartel Provision" - particulars of the cartel provision which is alleged to have been contained in the relevant arrangement or understanding and which it is alleged Mr Moscati and ANZ intended to encourage J.P. Morgan to act in accordance with or give effect to. Those particulars are essentially the same as the Supply of Shares Purpose Particulars and the Competition Condition Particulars in charges 1 to 12 in all but one important respect. The important difference is that the Supply of Shares Purpose Particulars in this part of the charge do not refer to the purpose of the provision that was contained in the 5-7% Understanding. Rather, they simply refer to "purpose of the provision contained in the arrangement or understanding". That arrangement or understanding is presumably the alleged arrangement or understanding between J.P. Morgan and the other investment banks, though that is not made entirely clear. 145 Seventh, it follows from the previous points that the particulars in charge 13 in the August Indictment do not clearly identify the nature of the arrangement or understanding which it is alleged Mr Moscati and ANZ had knowledge of and intended to encourage J.P. Morgan to act in accordance with, save that it had something to do with restricting or limiting trading in ANZ shares. The particulars also do not clearly identify the terms of the cartel provision contained in that arrangement or understanding which it is alleged Mr Moscati and ANZ had knowledge of and intended to encourage J.P. Morgan to give effect to, save that it had a particular purpose - the Supply of Shares Purpose. 146 It is, in those circumstances, difficult to avoid the conclusion that the particulars of charge 13 in the August Indictment are deficient and defective in material respects. The prosecutor did not, however, concede that to be the case. 147 The prosecutor's conduct shortly prior to the hearing of the interlocutory applications belied the prosecutor's apparent unwillingness to concede that the pleading and particularisation of charge 13 (and charge 26) in the August Indictment was defective. As has already been described, the prosecutor's written submissions were accompanied by a draft marked-up indictment. That draft indictment suggested, in effect, that the prosecutor proposed to make significant changes to, relevantly, the particulars in charge 13 (and charge 26). Moreover, after the prosecutor received the written submissions of the accused in reply, the prosecutor sought to withdraw the draft indictment which had accompanied the prosecutor's written submissions and replace it with the Proposed Indictment. The Proposed Indictment included further substantive changes to the pleading and particularisation of charge 13 (and charge 26). The Proposed Indictment was provided to the Court, and presumably the accused, shortly before the hearing of the interlocutory applications. It bears the hallmarks of a document prepared in haste and with insufficient care and attention. 148 While the issue before the Court is whether there is a formal defect, or formal defects, apparent on the face of the August Indictment and whether that indictment, or any counts in it, should be quashed, close consideration should nonetheless be given to the Proposed Indictment. It is unnecessary to refer to the initial draft indictment filed with the prosecutor's submissions in chief, particularly given that it was subsequently withdrawn. At most it simply reveals the difficulty that the prosecutor appears to have had in properly particularising the charges against ANZ and Mr Moscati. 149 ANZ and Mr Moscati contended that the pleading and particularisation of charge 13 in the Proposed Indictment is defective and deficient, perhaps even more so than the particularisation of that charge in the August Indictment. In their submission, that circumstance adds force to their contention that the prosecutor should not be given any further opportunity to correct the defects in the charges against them and the charges should accordingly be quashed and they should be discharged.

[19]

Charge 13 in the Proposed Indictment 150 While the Proposed Indictment contained extensive mark-ups - by underlining, strikethrough and highlighting - to avoid confusion it is preferable to set out the proposed terms of charge 13 without that mark-up: Charge 13 The Prosecutor charges that between 7 August 2015 and 28 August 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 intentionally 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). Particulars of J.P. Morgan Australia Limited's Contravention The arrangement or understanding referred to in Charge 13 is the 5-7% Understanding. The 5-7% Understanding Particulars are repeated. J.P. Morgan Australia Limited gave effect to the cartel provision in the 5-7% Understanding by one or more of its officers, employees or representatives, namely one or more of Oliver Bainbridge, Mark Dewar, Richard Galvin, Jeffrey Herbert-Smith and Mark Leung or employees or representatives engaged in trading ANZ Shares acting under the direction of one or more of them, engaging in conduct between 8 August 2015 and 28 August 2015 that was intended to restrict or limit trading in ANZ Shares by J.P. Morgan Australia Limited or any of its related entities to no more than 7% of the average daily volume of the trade in ANZ Shares (with the aim of not exceeding 5%). Those officers, employees or representatives were acting within the scope of their actual or apparent authority as officers, employees or representatives of J.P. Morgan Australia Limited. Their conduct is accordingly attributable to J.P. Morgan Australia Limited. In engaging in their conduct, one or more of Oliver Bainbridge, Mark Dewar, Richard Galvin, Jeffrey Herbert-Smith and Mark Leung: (1) knew or believed the facts which meant that the 5-7% Understanding contained a cartel provision; and (2) intended to give effect to the cartel provision. Oliver Bainbridge, Mark Dewar, Richard Galvin, Jeffrey Herbert-Smith and Mark Leung were acting within the scope of their actual or apparent authority as officers, employees or representatives of J.P. Morgan Australia Limited. Their states of mind are accordingly attributable to J.P. Morgan Australia Limited. The Cartel Provision Particulars are repeated. Particulars of Richard Moscati's Contravention and Australia and New Zealand Banking Group Limited's Contravention Richard Moscati aided, abetted, counselled or procured the contravention by J.P. Morgan Australia Limited by encouraging J.P. Morgan Australia Limited to restrict or limit its trading in ANZ Shares, including by its related entities, through his discussions and communications with officers, employees or representatives of J.P. Morgan Australia Limited (with or without the other Investment Banks) on and from 7 August 2015. Richard Moscati: (1) intended his conduct would aid, abet, counsel or procure the commission of an offence of the type J.P. Morgan Australia Limited committed; and (2) knew or believed the facts which meant that J.P. Morgan Australia Limited would be giving effect to a cartel provision in an arrangement or understanding with the other Investment Banks of the type particularised as the cartel provision in the 5-7% Understanding. Richard Moscati was acting within the scope of his actual or apparent authority as an officer, employee or representative of Australia and New Zealand Banking Group Limited. His conduct and state of mind are accordingly attributable to Australia and New Zealand Banking Group Limited. Australia and New Zealand Banking Group Limited thereby aided, abetted, counselled or procured the contravention by J.P. Morgan Australia Limited. 151 The following short points may be made concerning the proposed particularisation of charge 13 in the Proposed Indictment. 152 First, there are no proposed changes to the pleading of the charge itself. The proposed changes are to the particulars. 153 Second, the only substantive change to the particulars of J.P. Morgan's contravention is that the references to the Supply of Shares Purpose Particulars and Competition Condition Particulars have been deleted and replaced by a reference to the Cartel Provision Particulars. For the same reasons as those given earlier in the context of the charges against Citigroup and Deutsche Bank, this change is problematic because the Cartel Provision Particulars supposedly apply not only to charges 1 to 13, but also charges 14 to 26, even though those charges are based on alternative cartel provision particulars. 154 Third, the particulars of the conduct engaged in by ANZ and Mr Moscati in charge 13 in the Proposed Indictment - now appearing under the subheading "Particulars of Richard Moscati's Contravention and Australia and New Zealand Banking Group Limited's Contravention" - are materially different to those in the August Indictment. In the version of the charge in the August Indictment it is alleged that Mr Moscati (and through him ANZ) aided, abetted, counselled or procured J.P. Morgan's contravention by encouraging it to restrict or limit its trading in ANZ shares "in accordance with an arrangement or understanding between [J.P. Morgan] and the other Investment Banks". In the Proposed Indictment, the particulars are that Mr Moscati encouraged J.P. Morgan to restrict or limit its trading in ANZ shares "through his discussions and communications with officers, employees or representatives of [J.P. Morgan] (with or without the other Investment Banks) on and from 7 August 2015". There is no reference in the latter to any arrangement or understanding, or any cartel provision, in the particulars of the conduct engaged in by Mr Moscati and ANZ. 155 Fourth, the particulars of Mr Moscati's (and therefore ANZ's) state of mind are also fundamentally different in the charge in the Proposed Indictment. It is apparently no longer alleged that Mr Moscati "knew or believed the facts which meant that the arrangement or understanding contained a cartel provision". It is alleged, instead, that Mr Moscati "knew or believed the facts which meant that [J.P. Morgan] would be giving effect to a cartel provision in an arrangement or understanding with the other Investment Banks of the type particularised as the cartel provision in the 5-7% Understanding". It is also apparently no longer contended that Mr Moscati "intended to encourage [J.P. Morgan] to give effect to the cartel provision". It is instead alleged that Mr Moscati "intended his conduct would aid, abet, counsel or procure the commission of an offence of the type [J.P. Morgan] committed". 156 Fifth, the particulars no longer include any separate particulars of the cartel provision that it is alleged that Mr Moscati knew or believed J.P. Morgan would be giving effect to. Nor are there any particulars of the arrangement or understanding which Mr Moscati is alleged to have known or believed contained that cartel provision. All that is said is that the arrangement or understanding was "of the type particularised as the cartel provision in the 5-7% Understanding". 157 While the proposed particularisation of the contravention by Mr Moscati and ANZ in the Proposed Indictment is, to say the very least, somewhat obscure and confused, as best I can gather, the essential allegation is that, while Mr Moscati (and therefore ANZ) may not have known the precise terms of the 5-7% Understanding or the cartel provision contained in it, he (and ANZ) nonetheless aided, abetted, counselled, or procured J.P. Morgan to give effect to the cartel provision contained in the 5-7% Understanding by encouraging J.P. Morgan to restrict or limit its trading in ANZ shares. It would appear that the prosecution case is that, while Mr Moscati may not have known the precise terms of the 5-7% Understanding or the cartel provision contained in it, he nevertheless knew that J.P. Morgan was (or would be) party to an arrangement or understanding with the other investment banks which included a provision the purpose of which was to restrict or limit the investment banks' trading in ANZ shares. The key allegation would appear to be that, given that knowledge, when Mr Moscati encouraged J.P. Morgan to restrict or limit its trading in ANZ shares, he intended to aid, abet, counsel or procure J.P. Morgan to give effect to a cartel provision in an arrangement or understanding between the investment banks "of the type" of the cartel provision in the 5-7% Understanding. He therefore intended that his conduct would aid, abet, counsel or procure J.P. Morgan to commit an offence "of the type" committed by J.P. Morgan; that is, an offence "of the type" of giving effect to the cartel provision in the 5-7% Understanding. 158 This would appear to be the first time since ANZ and Mr Moscati were first charged back in June 2018 that the case against them has been framed precisely in this way. It represents a significant and substantive change to the particularisation of the charge. It is apparent that the prosecutor now relies on s 11.2(3)(a) of the Criminal Code, Sch to the Criminal Code Act 1995 (Cth), to establish that ANZ and Mr Moscati are liable as accessories to the alleged contravention of s 44ZZRG(1) by J.P. Morgan on the basis that they intended to encourage, and therefore counsel or procure, J.P. Morgan to give effect to a cartel provision "of the type" particularised as the cartel provision in the 5-7% Understanding. 159 Before addressing the contentions by ANZ and Mr Moscati concerning the defects in the charge as presently pleaded, and as now apparently proposed by the prosecutor, it is necessary to make some brief observations concerning the elements or requirements of accessorial liability based on s 11.2(3)(a) of the Criminal Code. That issue was not addressed at length in Judgment No 1 because there was no indication, at that stage, that the prosecution case against Mr Moscati and ANZ was not that they knew or believed that they were aiding, abetting, counselling or procuring J.P Morgan to give effect to the cartel provision in the 5-7% Understanding, but rather was that that they knew or believed that they were aiding, abetting, counselling or procuring J.P. Morgan to give effect to a cartel provision of that "type".

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The prosecutor's reliance on s 11.2(3)(a) of the Criminal Code 160 As has already been noted, the charges against ANZ and Mr Moscati rely on s 79(1)(a) of the C&C Act, which 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 …". Subsection 79(1)(a) of the C&C Act, like s 11.2(1) of the Criminal Code, does not itself create an offence, but rather extends criminal responsibility for the principal contravention: see R v Holliday (2017) 260 CLR 650; [2017] HCA 35 at [34]; R v Kaldor (2004) 150 A Crim R 271; [2004] NSWCCA 425 at [81]. Subsection 79(1A) of the C&C Act provides that "[s]ubsections 11.2(2) to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(a) in the same way that they apply in relation to subsection 11.2(1) of the Criminal Code". Subsection 11.2(1) of the Criminal Code provides that a "person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly". Subsections 11.2(2) and (3)(a) of the Criminal Code provide as follows: (2) For the person to be guilty: (a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and (b) the offence must have been committed by the other person. (3) For the person to be guilty, the person must have intended that: (a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed… 161 It can be seen that the proposed re-particularisation of charge 13 by the prosecutor relies on the fact that s 11.2(3)(a) of the Criminal Code requires only that the accused intended that his conduct would aid, abet, counsel or procure the commission of "any offence" of the "type" committed by the principal. It was on that basis that the prosecutor apparently contended that the charge against ANZ and Mr Moscati need only allege that they intended to aid, abet, counsel or procure the commission of a contravention "of the type" committed by J.P. Morgan. 162 The Criminal Code does not itself contain any provision which sheds any light on what may properly be considered to be an offence "of the type" committed by the principal for the purposes of s 11.2(3)(a). Assistance may, however, be gleaned from common law authorities which appear to have provided the basis or impetus for this provision. 163 In R v Bainbridge [1960] 1 QB 129, the appellant had purchased oxygen-cutting equipment knowing that it would be used for the purpose of breaking and entering premises. He was charged as an accessory to an offence committed by thieves who had used that equipment to break into a bank. He claimed not to have known that the equipment would be used to commit that particular crime. He thought that the equipment was to be used to dispose of stolen property. His conviction was upheld on the basis that it was "unnecessary that knowledge of the particular crime which was in fact committed should be shown to his [the appellant's] knowledge to have been intended" (at 133). It would not have been sufficient for the Crown to prove that "some illegal venture" was intended (at 133). It was, however, sufficient to prove that "knowledge that a crime of the type in question was intended" which in the case at hand was "breaking and entering premises and the stealing of property from those premises" (at 134). That is how the jury had been directed. It was found, on appeal, that there was no error in that direction. 164 In Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 3 All ER 1140, the appellant was a member of an illegal organisation in Northern Ireland which had been responsible for sectarian murders and bombings. He was told by another member of that organisation to guide a car at night to a public house in a remote country area. The appellant knew that he was being sent on a terrorist attack, but he did not know what form the attack would take. On the evening of the offence, the appellant drove his car and thereby led another car to the public house in question. An occupant of the other car threw a bomb into those premises. The appellant was charged with doing an act with intent to cause an explosion by a bomb and was convicted on the basis that he had aided and abetted that offence. He appealed on the basis that he did not know what form the attack would take, or that there was a bomb in the other car, and could not be properly convicted of aiding and abetting the commission of a crime of which he was ignorant. In dismissing the appeal, the House of Lords approved the reasoning in Bainbridge and concluded that the appellant knew that the offence in which he participated was a crime of the type committed. Lord Hailsham reasoned (at 1147) that "bullet, bomb or incendiary device, indeed most if not all types of terrorist violence, would all constitute offences of the same 'type' within the meaning of R v Bainbridge and that so far as mens rea is concerned 'the essential ingredients' of all and each of the offences … were each and all contained within the guilty knowledge of the appellant at the time of his participation". 165 It follows from this brief analysis that, to establish accessorial liability for the contravention alleged to have been committed by J.P Morgan on the basis of s 79(1)(a) of the C&C Act and s 11.2(2) and (3)(a) of the Criminal Code, the prosecutor will need to prove as follows. 166 First, that J.P. Morgan contravened s 44ZZRG(1) of the C&C Act as particularised in charge 13 - in summary, that J.P. Morgan intentionally gave effect to the cartel provision in the 5-7% Understanding. 167 Second, that the conduct engaged in by Mr Moscati (and through him ANZ) "in fact" aided, abetted, counselled or procured the contravention of s 44ZZRG(1) by J.P. Morgan. 168 Third, that Mr Moscati (and through him ANZ) intended that his conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) "of the type" committed by J.P. Morgan; that is, an offence involving a contravention of s 44ZZRG(1) of the C&C Act. The question whether the offence which was committed by J.P. Morgan was "of the type" which Mr Moscati intended that his conduct would aid, abet, counsel or procure will depend on all the circumstances and will be a question of degree. The starting point, however, is ascertaining what type of offence or offences Mr Moscati intended his conduct would aid, abet, counsel or procure. 169 It should be noted, in relation to intention, that s 5.2(3) of the Criminal Code provides that a "person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events". An intention that conduct will aid, abet, counsel or procure another person to commit an offence would appear to be an intention with respect to a result. In those circumstances, the prosecutor must accordingly prove that Mr Moscati (and ANZ) meant to bring about the result that J.P. Morgan would commit an offence of the type it committed, or that Mr Moscati (and through him ANZ) was aware that his conduct would result in J.P. Morgan committing an offence of that type; that is, an offence of the "type" of s 44ZZRG(1) of the C&C Act. 170 Subsections 11.2(2) and (3)(a) of the Criminal Code do not expressly say anything about any element or requirement of knowledge. Nevertheless, as briefly noted in Judgment No 1, it is clear at common law that to prove that an accused person aided, abetted, counselled or procured another person to commit an offence, it is necessary to prove that the accused person knew or believed the essential matters that constituted the offence committed by the principal: Giorgianni v The Queen (1985) 156 CLR 473 at 482, 487-488 and 494 (citing Lord Goddard CJ in Johnson v Youden [1950] 1 KB 544 at 546-547). In Giorgianni, Gibbs CJ at 481 referred to both Bainbridge and Maxwell as being amongst the authorities supporting the view that "knowledge of the facts is necessary before a person can be made liable as a secondary party for the commission of an offence": see also Wilson, Deane and Dawson JJ at 500-501. That knowledge must extend to knowledge or awareness of "the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed": Stokes & Difford at 38; Moustafa at [95]-[96]; see also Edwards at 658. 171 It is also tolerably clear that for an alleged accessory to intend that his conduct would aid, abet, counsel or procure the commission of an offence (including its fault elements) "of the type" committed by the principal, it would be necessary for the accessory to have some knowledge of the facts constituting the type of offence committed, or to be committed, by the principal. Thus, in Maxwell, it was necessary for the accused accessory to have had knowledge or awareness that the offence to be committed by the principal offender was a "military" operation or "violent attack" (at 1145 and 1149-1150). The link between knowledge and intention in this context was concisely explained by Mason ACJ, Wilson, Deane and Dawson JJ in Yorke v Lucas, where (at 670) their Honours observed that for a person to be knowingly concerned in a contravention, the person must be an "intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention". 172 I would thus add a fourth matter that the prosecutor will be required to prove: that Mr Moscati (and through him ANZ) had knowledge of the essential matters which constituted, or would constitute, a contravention or offence "of the type" committed, or to be committed, by J.P. Morgan. 173 Two important points should be emphasised in relation to the required knowledge and intention. 174 The first point is that, as already adverted to, it is sufficient for the accessory to have knowledge of the type of offence that is committed, or is to be committed. The accessory does not need to have knowledge of the specific or precise details of the offence. The facts in both Maxwell and Bainbridge amply demonstrate that point. 175 Two Australian cases also demonstrate the point. In R v Glennan [1970] 2 NSWR 421 at 426 it was held that, in the case of a person accused of aiding and abetting a person to drive a vehicle in circumstances where their blood alcohol level was over the prescribed limit, it was sufficient to prove that the accused knew the amount of alcohol consumed by the driver; it was unnecessary to prove that the accused knew the driver's actual blood alcohol level. In R v Licciardello [2017] 3 Qd R 206; [2017] QCA 286, it was held (at [31]), in the case of a person accused of aiding and abetting an offence of assault occasioning grievous bodily harm, that it was sufficient to prove that the accused accessory had knowledge that the principal would commit an assault. In Bruce v Williams (1989) 46 A Crim R 122 at 129, Priestley JA referred to the "rule" that it was sufficient that an accessory knew the "type of crime intended" and said that "[c]learly, it will be a matter of the court's evaluation from case to case whether the particular crime committed bore such similarity to that of which the accused had knowledge, to fall within the rule". 176 The second point is that the accessory need not be aware of the illegal nature of the conduct which constitutes the offence committed, or to be committed, by the principal: Giorgianni at 500, 506; Yorke v Lucas at 667; Stokes & Difford at 37-38. 177 It follows from the two points just emphasised that the prosecutor is not required to prove that Mr Moscati and ANZ knew all of the details of the contravention of s 44ZZRG(1) committed, or to be committed, by J.P. Morgan. It is sufficient to prove that Mr Moscati and ANZ knew the facts and circumstances which would establish that J.P. Morgan committed, or would commit, a contravention of the "type" committed by J.P. Morgan. The prosecutor is also not required to prove that Mr Moscati or ANZ knew that the conduct by J.P. Morgan that they were aiding, abetting, counselling or procuring was a contravention or offence. 178 I have refrained, for present purposes, from referring to these requirements of proof as 'elements'. That is because there is a fairly arcane debate or issue as to whether the requirements referred to in s 11.2(2) and (3)(a) of the Criminal Code are elements of the offence or only requirements of a finding of guilt. The prosecutor contended, based on the reasoning of the High Court in R v LK (2010) 241 CLR 177; [2010] HCA 17 (at [128]-[141]), that the requirements in s 11.2(2) and (3)(a) are not elements of the offence. ANZ submitted that LK was distinguishable as the reasoning in that case concerned s 11.5 of the Criminal Code, which creates an offence of conspiracy, whereas s 11.2 does not create a separate offence. 179 It is unnecessary to resolve that issue in the present context. That is because, irrespective of whether s 79(1)(a) of the C&C Act and s 11.2(2) and (3)(a) of the Criminal Code should be construed as creating elements of the offence, or requirements of guilt, a charge based on those provisions should provide proper particulars of those matters: see King v The Queen (1986) 161 CLR 423 at 436-437; Giorgianni at 497. Whether they are elements or not, ss 11.2(2) and (3)(a) are "essential factual ingredients" of the offence: cf John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 520. 180 ANZ and Mr Moscati did not appear to contend, in the context of the present interlocutory applications, that it was not open to the prosecutor to rely on s 11.2(3)(a) of the Criminal Code and allege that, while they did not know the details of the 5-7% Understanding or the cartel provision contained in it, they nonetheless intended that their conduct would aid, abet, counsel or procure J.P. Morgan to commit a contravention "of the type" committed by them. That was perhaps because the Proposed Indictment was served so late in the piece. It would be fair to say that the argument centred more on the unsatisfactory conduct of the prosecutor and the deficiency in the particulars. In any event, if ANZ and Mr Moscati want to contend, in effect, that the offence that the prosecutor proposes to pursue based on s 11.2(3)(a) is not an offence known to law, that argument should be put in the context of an interlocutory application in the nature of a demurrer, as opposed to the current interlocutory application, which concerns whether there is a formal defect apparent on the face of the indictment. 181 The primary contentions advanced by ANZ and Mr Moscati at this stage are, in essence, that: the August Indictment does not contain proper or adequate particulars of the case now apparently put against them; the Proposed Indictment also does not contain proper particulars of the case that the prosecutor apparently wishes to put against them; the August Indictment should accordingly be quashed; and they should accordingly be discharged.

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Particulars of knowledge and intention 184 The particulars of Mr Moscati's and ANZ's knowledge in charge 13 in the August Indictment are in broadly similar terms to the particulars of knowledge in charges 9, 10, 11 and 12 (and 22, 23, 24 and 25) against Messrs Tuchman, McLean, Ormaechea and Richardson; that is, that Mr Moscati "knew or believed the facts which meant that the arrangement or understanding contained a cartel provision". Those particulars are defective for the reasons given earlier in respect of the particulars of knowledge in the charges against the other individual accused. 185 The particulars of Mr Moscati's knowledge in charge 13 in the Proposed Indictment are also in broadly similar terms to those in the Proposed Indictment in respect of charges 9, 10, 11 and 12 (and the alternatives to those charges) against Messrs Tuchman, McLean, Ormaechea and Richardson. For the reasons given earlier in the context of those charges, the changes to the particulars of knowledge in the Proposed Indictment do not rectify the identified defects or deficiencies in the particulars of knowledge in the August Indictment. 186 There are additional problems and complications with the particulars of Mr Moscati's knowledge over and above those considered in the context of the charges against the other individual accused. Those problems and complications arise from the fact that, as discussed earlier, the particulars do not state that Mr Moscati knew of the existence of the 5-7% Understanding or that he knew or believed that it contained a cartel provision. The particulars of knowledge in the form of the charge in the August Indictment are that Mr Moscati "knew or believed the facts which meant that the arrangement or understanding contained a cartel provision". There is no indication that "the" arrangement or understanding was the 5-7% Understanding. Indeed, all indications are to the contrary. What then are the particulars of "the" arrangement or understanding about which it is alleged Mr Moscati had some knowledge or belief? 187 The particulars of knowledge in the Proposed Indictment refer to Mr Moscati's knowledge that J.P. Morgan "would be giving effect to a cartel provision in an arrangement or understanding with the other Investment Banks of the type particularised as the cartel provision in the 5-7% Understanding" (emphasis added). It is, however, unclear from the particulars exactly what is meant by the words "of the type" in this context. What were the features of the cartel provision that Mr Moscati knew about which made it "of the type" particularised as the cartel provision in the 5-7% Understanding? 188 The same problem or complication appears in the particulars of Mr Moscati's intention. The particulars of intention in the August Indictment are that Mr Moscati "intended to encourage [J.P. Morgan] to give effect to the cartel provision" (emphasis added). There are, however, no particulars of "the" cartel provision. It is not said to be the cartel provision in the 5-7% Understanding. It should also perhaps be added that the allegation that Mr Moscati "intended to encourage" also does not directly engage with the requirement in s 11.2(3)(a) of the Criminal Code. 189 The particulars of Mr Moscati's intention in charge 13 in the Proposed Indictment are that Mr Moscati "intended that his conduct would aid, abet, counsel or procure the commission of an offence of the type J.P. Morgan committed" (emphasis added). Again, however, it is entirely unclear what is meant by the words "of the type" in this context. What were the features of the contravention that Mr Moscati intended to aid, abet, counsel or procure J.P. Morgan to commit which made it "of the type" of J.P. Morgan's contravention? 190 The complications arising from this aspect of the proposed particulars are addressed further in the context of ANZ's and Mr Moscati's complaints concerning the absence of proper particulars of the relevant arrangement or understanding and the complaints concerning the date or date range in the charge.

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Particulars of the relevant arrangement or understanding 191 The problem with this element of the particulars of charge 13 in the August Indictment is that it is alleged that Mr Moscati aided, abetted, counselled or procured the contravention by J.P. Morgan by "encouraging [J.P. Morgan] to restrict or limit trading in ANZ Shares from 10 August 2015 in accordance with an arrangement or understanding between [J.P. Morgan] and the other Investment Banks". There are, however, no particulars whatsoever in respect of that arrangement or understanding - that is, the arrangement or understanding that Mr Moscati knew about and intended to encourage J.P. Morgan to act in accordance with. It is not said that the arrangement or understanding is the 5-7% Understanding. No details are given concerning the terms or nature of the arrangement or understanding that it is alleged Mr Moscati (and therefore ANZ) knew about and intended to encourage J.P. Morgan to act in accordance with. ANZ and Mr Moscati contend that the particulars are accordingly deficient and defective for that reason alone. I agree. The problems, however, would appear to run deeper than that. 192 There appears to me to be a disjunct or inconsistency between the allegation that Mr Moscati encouraged J.P. Morgan to trade in accordance with an arrangement or understanding and the allegation, in summary, that Mr Moscati both knew that the arrangement or understanding contained a cartel provision and that he intended to encourage J.P. Morgan to give effect to the cartel provision. Surely, in light of those latter allegations, the central allegation against Mr Moscati (and ANZ) is or should be that Mr Moscati encouraged J.P. Morgan to give effect to the cartel provision contained in the arrangement or understanding. If that is the case, it should be made clear. 193 That also raises the question whether the charge, as particularised in the August Indictment, contains adequate particulars of the cartel provision of which it is alleged Mr Moscati had some knowledge. The short answer to that question is "no". The charge includes - under the subheading "Particulars of the Cartel Provision" - particulars of the purpose of the cartel provision (the Supply of Shares Purpose), but it is not made entirely clear that it is alleged that Mr Moscati knew that the provision had that purpose. The particulars under that subheading also refer to the Competition Condition, though in some respects that is not really a particular of the cartel provision itself, but rather a statutory element or precondition for the offence generally. 194 There could, in these circumstances, be little doubt that the particulars of charge 13 in the August Indictment are deficient and defective. 195 The question, in those circumstances, is whether charge 13 as reformulated in the Proposed Indictment contains adequate and sufficient particulars of the charge. The short answer to that question is "no". There would in those circumstances be little point in permitting the prosecutor to file the Proposed Indictment as a replacement for the August indictment. 196 As has already been adverted to, the reformulation of charge 13 in the Proposed Indictment effectively seeks to clarify the nature of the charge and remedy the deficiencies just discussed in the following way. 197 First, while Mr Moscati's conduct is still particularised as encouraging J.P. Morgan to restrict or limit its trading in ANZ shares, it is no longer directly or explicitly alleged that he encouraged J.P. Morgan to act in accordance with an arrangement or understanding between J.P. Morgan and the other investment banks. 198 Second, it is no longer directly or explicitly alleged that Mr Moscati knew that J.P. Morgan was a party to an arrangement or understanding with the other investment banks, or knew that the arrangement or understanding contained a cartel provision. Rather, it is alleged that he knew that J.P. Morgan "would be" giving effect to a cartel provision in an arrangement or understanding with the other investment banks "of the type" particularised at the cartel provision in the 5-7% Understanding. It is perhaps implicit in that allegation that Mr Moscati must have had some knowledge or belief that J.P. Morgan and the other investment banks would at some point be making an arrangement or arriving at an understanding which contained a cartel provision, though that allegation is certainly not put in clear or direct terms. 199 Third, it is no longer alleged that Mr Moscati intended to encourage J.P. Morgan to give effect to the cartel provision in the arrangement or understanding between the investments banks. Rather, it is simply alleged, no doubt in purported reliance on s 11.2(3)(a) of the Criminal Code, that he intended that his conduct would aid, abet, counsel or procure the commission of any offence "of the type" J.P. Morgan committed. 200 The particulars of the offence said to have been committed by Mr Moscati and ANZ, as reformulated in the Proposed Indictment, are deficient and defective for a number of reasons. 201 First, the particulars of Mr Moscati's knowledge are deficient. In my view it is not sufficient to particularise Mr Moscati's knowledge by reference to knowledge that J.P. Morgan "would be" giving effect to a cartel provision "of the type" particularised as the cartel provision in the 5-7% Understanding. There must be some particularisation, at least, of what it is alleged he knew about the arrangement or understanding that J.P Morgan had entered into or arrived at with the other investment banks and what he knew about the cartel provision contained within it. A view or conclusion could then be formed as to whether that cartel provision was "of the type" particularised as the cartel provision in the 5-7% Understanding (the Cartel Provision). It is not enough to simply particularise Mr Moscati's conduct by reference to the "of the type" conclusion alone. 202 While it is not necessary at this point to reach a concluded view in relation to what knowledge would suffice, it would appear to me that, for Mr Moscati to know or believe that J.P. Morgan would be giving effect to a cartel provision "of the type" particularised in the 5-7% Understanding, he would most likely have to know or believe the following things: that J.P. Morgan was party to, and knew or believed it was party to, an arrangement or understanding with the other investment banks; that that arrangement or understanding contained, and J.P. Morgan knew or believed it contained, a provision which had the same, or essentially the same, purpose as the purpose referred to in the Supply of Shares Purpose Particulars (or, in the case of charge 26, the Price of Shares Purpose Particulars); that J.P. Morgan was intending to give effect to that provision; the facts in the Competition Condition; and that J.P. Morgan knew or believed the facts in the Competition Condition. 203 I should interpolate at this point that it does appear from the Amended Notice that it is the prosecution case that Mr Moscati knew, at least, that the investment banks had made an arrangement, or arrived at an understanding, that essentially had the same purpose as that which has been referred to or particularised as the Supply of Shares Purpose: see Amended Notice at [224.1]-[224.2]. It is also alleged that Mr Moscati knew the facts referred to in the Competition Condition in the Particulars of the Cartel Provision: Amended Notice at [224.3]. It would appear to be on that basis that the prosecutor alleges that Mr Moscati intended to aid, abet, counsel or procure J.P. Morgan to give effect to an arrangement or understanding which was of the same "type" as the 5-7% Understanding: Amended Notice at [225], [229], [230]. If that is the case, the essential facts which underlie that allegation should be included, albeit in concise terms, in the particulars of the charge in the indictment. 204 Second, the particulars of intention are deficient for essentially the same reasons. The proposed particulars of intention do no more than repeat the language of s 11.2(3)(a) of the Criminal Code. They give no indication of the "type" of offence that Mr Moscati allegedly intended to aid, abet, counsel or procure J.P. Morgan to commit. It seems to me that, at the very least, the prosecution case would have to be that, when he encouraged J.P. Morgan to "restrict or limit trading in ANZ Shares", as alleged, Mr Moscati was intending to aid, abet, counsel or procure J.P. Morgan to give effect to a provision in an arrangement or understanding between J.P. Morgan and the other investment banks which contained a cartel provision which had the same essential characteristics as the cartel provision in the 5-7% Understanding. That is how the particulars of intention should be framed. There must be some articulation of the essential characteristics of the cartel provision that Mr Moscati was intending to have J.P. Morgan give effect to. 205 As was adverted to earlier, it would appear that the prosecutor has changed the way the case against Mr Moscati and ANZ is pleaded as a result of a realisation that it may not be possible to prove that Mr Moscati and ANZ knew the precise terms of the 5-7% Understanding or the cartel provision contained in it. The case the prosecutor now wishes to pursue would appear to be to the effect that while Mr Moscati and ANZ may not have known the precise terms of the 5-7% Understanding, they nevertheless knew that there was an arrangement or understanding between the investment banks and knew, at the very least, that the arrangement or understanding contained a provision which had the purpose of restricting or limiting the number of ANZ shares that the investment banks would sell or offer for sale to prospective purchasers of ANZ shares on securities exchanges. It is difficult to imagine how Mr Moscati and ANZ could possibly be alleged to have aided, abetted, counselled or procured a contravention "of the type" allegedly committed by J.P. Morgan unless they knew at least that level of detail concerning the arrangement and understanding. 206 If that is the case that the prosecutor wishes to put, that is how the charge against Mr Moscati and ANZ must be particularised. That is plainly not how the charge is particularised in the August Indictment. The particulars in the charges against ANZ and Mr Moscati in the August Indictment are deficient and defective. The charge as re-particularised in the Proposed Indictment is at best obscure and at worst borderline incomprehensible. 207 As discussed in more detail later, I recognise that the task of properly particularising the charges against the accused, and in particular the charges against Mr Moscati and ANZ, is not made easy by the absurd complexity of the offence provisions in question, particularly when coupled with the provisions concerning accessorial liability in the Criminal Code. The task is not, however, impossible. More significantly, if the charges against Mr Moscati and ANZ are to proceed, the task must be achieved.

[24]

Particulars of the date 208 The offence which is alleged to have been committed by ANZ and Mr Moscati is alleged to have been committed "between 7 August 2015 and 28 August 2015". The complaint by ANZ and Mr Moscati concerns the commencement date of that date range. The short point made by ANZ and Mr Moscati is that it is not possible for Mr Moscati to have aided, abetted, counselled or procured J.P. Morgan to give effect to the cartel provision in the 5-7% Understanding because the 5-7% Understanding was not made or arrived at until 8 August 2015. This seemingly peculiar aspect of the particularisation of the charge against ANZ and Mr Moscati was noted in Judgment No 1 at [289]. How, it might be asked rhetorically, can one person aid, abet, counsel or procure another person to give effect to a provision in an arrangement or understanding before that arrangement or understanding exists? 209 The prosecutor's answer to that rhetorical question was to emphasise that it is possible to counsel or procure someone to commit an offence before the offence is committed. The prosecution case, so it was submitted, was that Mr Moscati began encouraging J.P. Morgan to restrict its trading in ANZ shares on 7 August 2015 and that that encouragement was capable of being characterised as counselling or procuring J.P. Morgan to give effect to a cartel provision in an arrangement or understanding between the investment banks, even though no such arrangement was in existence until the following day. It should, however, also be emphasised that the prosecution case is that Mr Moscati's conduct did not end with the encouragement which he allegedly gave to J.P. Morgan on 7 August 2015. His encouragement is alleged to have continued over the following two weeks or so: Amended Notice at [212]-[223]. 210 It may be accepted that it is possible to counsel or procure the commission of an offence before that offence is committed. As Mason J noted in Giorgianni (at 493), "the terms 'counsel' or 'procure' are generally used in relation to the conduct of an accessory before the fact". Each of the words "aids", "abets", "counsels" and "procures" is "used to convey 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]. Self-evidently, conduct which brings about or makes more likely the commission of an offence may occur before the offence is committed. 211 While at first blush it might be conceptually difficult to see how a person could aid, abet, counsel or procure someone else to give effect to a provision in an arrangement or understanding before that arrangement or understanding is in existence, it is possible to conceive of some circumstances where that might be so. For example, it might be possible where the person knew or believed that the making of the relevant arrangement or understanding was inevitable, expected or imminent. 212 It is difficult to consider this issue in the abstract and without a properly particularised charge. Much will depend on the particulars of knowledge or intention. I am not, at this point at least, persuaded that there is a formal defect in the charge arising from the fact that it is particularised as having commenced on 7 August 2015. I should note, however, that it was submitted on behalf of Mr Moscati and ANZ that the facts particularised in the Amended Notice concerning Mr Moscati's alleged encouragement of J.P. Morgan were effectively incapable of supporting the allegation that he (and through him ANZ) aided, abetted, counselled or procured the alleged contravention by J.P. Morgan. As discussed in more detail later, however, that is perhaps an argument more appropriately advanced in support of the foreshadowed demurrer, rather than in relation to the contention that the indictment was defective.

[25]

The conduct "in fact" aided, abetted, counselled or procured the contravention 213 This is a short point. Subsection 11.2(2)(a) of the Criminal Code provides that, for a person who is alleged to have aided, abetted, counselled or procured the commission of an offence to be guilty, the "person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person". 214 It is clear that the prosecution case is that Mr Moscati's conduct, and therefore ANZ's conduct, in fact aided, abetted, counselled or procured J.P. Morgan to contravene s 44ZZRG(1) of the C&C Act: Amended Notice at [227]. Charge 13 does not, however, include a particular to that effect. 215 The prosecutor maintained that the indictment did not need to include any such particular. That was said to be because s 11.2(2)(a) of the Criminal Code does not prescribe an element of the relevant offence. It only prescribes a condition of guilt. 216 For the reasons given earlier, I do not consider there to be any material difference between an element of an offence and a condition of guilt, at least when it comes to properly particularising a charge. The common law requirement of reasonable particularity requires that the indictment include the essential factual elements or ingredients of the offence. Proof that the conduct engaged in by the accused in fact aided, abetted, counselled or procured the principal offender to commit the principal offence is an essential factual ingredient of the offence. The indictment should therefore include a particular concerning that factual element or ingredient. 217 It is difficult to understand why the prosecutor would resist such a simple addition to the particulars. Indeed, the addition of this particular would likely add some clarity to the articulation of the prosecution case in the charge. 218 The conduct engaged in by Mr Moscati that is alleged to have aided, abetted, counselled or procured J.P. Morgan's contravention is currently particularised as being, in summary, encouraging officers, employees or representatives of J.P. Morgan to restrict or limit J.P. Morgan's trading in ANZ shares during various discussions. That allegation is expanded on in the Amended Notice, where it is said that Mr Moscati's conduct "did in fact encourage and influence [J.P. Morgan] to trade in accordance with the 5-7% Understanding, and thereby give effect to it": Amended Notice at [227]. If that allegation is part of the prosecution case, I can see no reason why it should not be added to the particulars.

[27]

RELIEF 220 For the reasons that have been given, each of the charges in the August Indictment contain defective or deficient particulars. The indictment in its present form cannot stand. The critical question is what orders should be made to deal with that situation or circumstance. The various alternatives were discussed in Judgment No 1 at [4]-[5] and [309]-[318]. 221 The accused all contended that the charges against them in the indictment should be quashed and that they should be discharged. They relied on, amongst other things, what they contend is the wholly unsatisfactory manner in which the prosecutor has conducted these proceedings, including the long history of complaints made by them concerning the particularisation of the charges against them. They were first charged over three years ago. Despite the lengthy correspondence and debate about the particularisation of the charges, both at the committal stage and following the filing of an indictment in this Court, and despite the numerous attempts that the prosecutor has had at properly framing the charges, the indictment is still defective. It was submitted that it is wholly unsatisfactory that the prosecutor has been unable to file a valid indictment in circumstances where the trial is listed to commence in just under six months' time. 222 ANZ and Mr Moscati contended that their circumstances should be considered separately to those of the other accused. That is essentially because the particulars of the charges against them have changed substantially and the defects or deficiencies in both the charges in the August Indictment and the charges in the Proposed Indictment are more significant than the defects in the charges against the other accused. There is some merit in that contention. 223 It is appropriate to first address the orders that should be made in respect of Citigroup, Deutsche Bank and Messrs Tuchman, McLean, Ormaechea and Richardson, and to then consider the position in respect of Mr Moscati and ANZ. Before doing so, however, it is appropriate to make some preliminary observations that apply to the circumstances of all of the accused and to say something briefly about the relevant principles.

[28]

Preliminary observations 224 There could be no doubt whatsoever that the present state of affairs concerning the indictment is entirely unsatisfactory and unacceptable. As was noted in Judgment No 1 at [92], the indictment is of central importance in any criminal proceeding. It is the indictment which vests the Court with jurisdiction to hear and determine the prosecution and it is the indictment which informs the Court of the precise identity of the offences with which it is required to deal and informs the accused of the substance of the case they have to meet. The terms of the indictment in this matter, however, remain unsettled with the trial date rapidly approaching. 225 The history of the proceeding does little to instil confidence in respect of the ongoing prosecution of the proceeding. 226 The accused were first charged in respect of contraventions of cartel offence provisions in June 2018, well over three years ago. 227 The original charges were as follows: Citigroup and Deutsche Bank were each charged with three contraventions of s 44ZZRF(1) and three contraventions of s 44ZZRG(1) of the C&C Act; Messrs Tuchman, McLean, Ormaechea and Richardson were each charged with being knowingly concerned in the three contraventions of s 44ZZRF(1) and the three contraventions of s 44ZZRG(1) by Citigroup, Deutsche Bank and J.P. Morgan; Mr Roberts was charged with being knowingly concerned in one of the contraventions of s 44ZZRF(1) and one of the contraventions of s 44ZZRG(1) by Citigroup, Deutsche Bank and J.P. Morgan; and ANZ and Mr Moscati were each charged with being knowingly concerned in two contraventions of s 44ZZRF(1) and two contraventions of s 44ZZRG(1) by Citigroup, Deutsche Bank and J.P. Morgan. 228 The charges as filed in the Local Court contained virtually no particulars of the alleged offending conduct beyond dates and the words used in the offence provisions. That prompted, perhaps not surprisingly in the circumstances, a barrage of correspondence and complaints by the accused concerning the particularisation of the offences. While it would appear that there were some minor amendments to some of the charges during the committal proceedings, the dispute between the prosecutor and the accused concerning the particularisation of the charges was not resolved at the committal stage. 229 The committal proceedings extended over a very lengthy period. It is unclear exactly why that was so. The accused were eventually committed for trial on 8 December 2020. 230 The first case management hearing in this Court was on 15 December 2020. At that case management hearing, the prosecutor applied for an extension of time in which to file the indictment pursuant to s 23BF(6) of the FCA Act. That was somewhat surprising given the length of time that the prosecutor had already had during the committal proceedings to consider the appropriate form of the charges in the indictment. The application was refused and the prosecutor was ordered to file the indictment on or before 1 February 2021. The prosecutor filed an indictment on 1 February 2021. 231 As was noted in Judgment No 1, the indictment first filed by the prosecutor was almost entirely bereft of any particulars. The charges as particularised in that indictment were particularised in a way which was not dissimilar to the charges first filed in the Local Court. That was despite the long history of complaints by the accused concerning the particularisation of the charges. 232 The absence of any meaningful particulars in the charges in the indictment prompted the accused to file the interlocutory applications which were the subject of Judgment No 1. 233 As discussed in Judgment No 1, the prosecutor's response to the interlocutory applications which were the subject of Judgment No 1 was not entirely above reproach. It is unnecessary to rehearse what was said in that regard in Judgment No 1. It suffices to note that, effectively without notice, the prosecutor filed a replacement indictment in March 2021, shortly prior to the hearing of the interlocutory applications on 1 April 2021. The new indictment included some particulars of the three alleged arrangements or understandings which were central to the charges. As was noted in Judgment No 1, there could be little doubt that, had those particulars not been included in the indictment, the indictment would have been manifestly defective. 234 As events transpired, the new indictment was found to be defective in any event. Many of the arguments which had been advanced by the accused concerning the inadequate and defective particularisation of the charges were accepted by the Court. 235 Judgment No 1 identified the relevant requirements for a valid indictment and gave fairly detailed guidance as to what was required in terms of the particularisation of the charges in the particular circumstances of this case. The main order made in Judgment No 1 was that the prosecutor file an indictment which remedied the defects and deficiencies identified in the judgment within 14 days. The new indictment was not filed within that time period. The prosecutor sought and was granted several extensions of time in which to comply with the Court's order. 236 It would appear that, quite sensibly, the prosecutor provided a draft of the proposed new indictment to the legal representatives for the accused before it was filed and sought their comments or input in relation to it. The accused adduced evidence in support of their current interlocutory applications. That evidence included evidence of the exchanges with the prosecutor which occurred after the draft new indictment was provided. It is unnecessary to discuss that evidence at length. It suffices to say that at least some of the legal representatives of the accused advised the prosecutor that the draft indictment remained defective. Some provided detailed reasons for why that was said to be so. It appears, however, that the prosecutor was largely unmoved by the representations made in that correspondence. The result was that, shortly after the indictment was filed, the accused again filed interlocutory applications seeking to quash the August Indictment. Orders were again made for the filing of written submissions. 237 The sequence of events which occurred after the accused filed written submissions in support of their interlocutory applications has already been touched on. There is an unfortunate element of déjà vu. The prosecutor filed written submissions which annexed a draft marked-up version of the indictment which purported to address some of the deficiencies identified in the written submissions filed by the accused. After the accused filed written submissions in reply, and again shortly before the hearing of the interlocutory applications, the prosecutor provided the accused and the Court with yet another draft marked-up version of the indictment - the Proposed Indictment. 238 Despite providing two versions of a proposed new indictment, the prosecutor did not concede that the August Indictment was defective. 239 The August Indictment has now been found to be defective. It has also been found that the Proposed Indictment, if permitted to be filed, would not completely remedy the defects in the August Indictment. 240 The trial of the accused, if there is to be a trial, has been listed to commence before a jury at the beginning of May next year. That is less than seven months away. To make matters worse, there is much to be done before the trial commences. 241 The accused have each foreshadowed bringing an application in the nature of a demurrer to the indictment. While precise details of the nature of the arguments that will be put in support of those foreshadowed applications have not been provided to the Court, it may be assumed that the general effect of the arguments will be that the prosecution case against the accused is fundamentally flawed and that, even if the factual allegations detailed in the Amended Notice are made out, the prosecution case cannot in any event succeed in law. The applications were initially set down for hearing over four days in November. The hearing of the applications cannot now occur in November given the present uncertain state of the indictment. The hearing of the applications will now have to take place in February next year. 242 Orders have also recently been made in respect of the conduct of examinations of various prosecution witnesses pursuant to s 23CQ of the FCA Act: see Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 4 - examination orders) [2021] FCA 1237. Those examinations will now occur in November in lieu of the demurrer applications. 243 The pre-trial witness examinations were justified, in large part, as being in aid of a foreshadowed application by the accused that the criminal proceedings against them be permanently stayed. The basis of that application is likely to be that the continuation of the proceedings would be unfair and unjust as a result of the manner in which ACCC investigators interviewed and took witness statements from indemnified officers of J.P. Morgan. It is likely to be submitted that the evidence of those witnesses has been irreparably tarnished. The relevance of noting this for present purposes is that the hearing and determination of these foreshadowed applications must again be accommodated prior to the proposed commencement of the trial before a jury in May next year. 244 It may be accepted that the proper particularisation of the charges in this matter is no mean feat. The requirement for a statement of an offence in an indictment to describe "concisely and with reasonable particularity, the nature of the alleged offence" (r 3.01(4)(c) of the Rules) would appear, at first blush at least, to be a fairly straightforward requirement. Likewise, the explanation or elaboration given in the authorities in relation to the requirement of reasonable particularity does not seem to impose a particularly onerous or difficult obligation. It does not appear to be a particularly tall order to "condescend to identifying the essential factual ingredients of the actual offence" (John L at 520) or to identify "each essential factual element" of the offence in question: Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121 at [82]. 245 The difficulty, however, is that most of the cases from which those general statements concerning the requirement of reasonable particularity have been extracted involve fairly straightforward offences which involve a few simple elements and not particularly complex facts. This case is anything but simple or straightforward. Even putting to one side the relatively complex factual matrix upon which the prosecution case is based, the offences with which the accused have been charged are highly complex. Indeed, it is difficult to think of any more complex and difficult offences than the ones in question in this case. 246 Those responsible for drafting the cartel offence provisions in the C&C Act - none of whom could possibly have ever set foot in a criminal trial court before - appear to have approached the drafting task as if it were akin to producing a cryptic crossword. The offence provisions, when read with the extensive definitions of the terms used in them, are prolix, convoluted and labyrinthine. When coupled with the general principles of criminal responsibility, including the extensions of criminal responsibility in Ch 2 of the Criminal Code, the complexity of the offences is multiplied. By the time the maze of provisions is worked through, it is very easy to lose sight of exactly what conduct the offence provisions are intended to bring to account and punish. 247 It is, in all the circumstances, perhaps not difficult to appreciate why the prosecutor appears to have struggled to formulate the charges in this matter. Given the complexity of the elements of the offences, and the relatively complex factual allegations, compliance with the requirements of reasonable particularity is easier said than done. The inclusion of proper particulars in the indictment in the particular circumstances of this case will also undoubtedly mean that the indictment will be far longer and far more detailed than is typically the case, even in complex white-collar prosecutions: cf Judgment No 1 at [312]. The fact remains, however, that the prosecutor has had over three years in which to consider the appropriate way in which to plead and particularise the charges. The prosecutor has also had the benefit of countless rounds of correspondence and, more significantly, a judgment of this Court which provided detailed guidance as to the elements of the offences in question and what needs to be included in the charges to satisfy the requirement of reasonable particularity. 248 More significantly, the fact remains that if this matter is to go to trial, the prosecutor must be able to explain its case to the jury in comprehensible terms. The starting point in that regard is the indictment. If the prosecutor cannot articulate the prosecution case against the accused in clear and comprehensible terms in the indictment, it is difficult to see how the prosecutor will be able to explain the case to a jury. 249 The critical question in this case is whether the prosecutor should be given another opportunity to file an indictment that both complies with the Rules and satisfies the common law requirements for a valid charge or statement of offence in an indictment. The only real alternative is for the indictment to be quashed and for the accused to be discharged. If that course is taken, the accused would be released from Court without any further action being taken against them. That would undoubtedly be a drastic step given the seriousness of the charges.

[29]

Relevant principles 250 The parties did not advance any detailed submissions in respect of the principles that should be applied in considering this question. 251 It was submitted, on Mr Moscati's behalf, that the Court should have regard to the principles considered by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175;[2009] HCA 27. Reliance was placed, in particular, on the observation by the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [112] that "[p]arties have choices as to what claims are to be made and how they are to be framed" but that "limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced". 252 While some of the principles and considerations that apply in the civil context may not be readily transferrable to the criminal context, it may certainly be accepted that limits are and must be placed upon the ability of a prosecutor to change the pleading or particularisation of an indictment, particularly if the proceedings are well advanced. The question in this case, in a sense, is whether that limit has been reached. 253 It would appear to me that the determination of the appropriate relief in the particular circumstances of this case involves a balancing exercise. The object of that balancing exercise is to ascertain where the interests of justice lie. 254 On one side of the scales is the interests of the accused and the prejudice they will or may suffer in the event that the prosecutor is given another opportunity to formulate the charges against them. The charges have been hanging over their heads for a considerable period of time. The stress and anxiety that must generate cannot be underestimated. The trial date is also fast approaching and it may be inferred that the preparation by the accused for the trial has been stymied somewhat by the interlocutory applications concerning the indictment. That said, there was no specific evidence concerning any material prejudice to the accused in terms of their preparation for trial or otherwise. As costs are generally not awarded in criminal cases, however, the accused will most likely not be able to be compensated for the costs that they inevitably incurred in pursuing the interlocutory applications. No means or method by which they could be effectively compensated was put forward. 255 On the other side of the scales is the maintenance of public confidence in the administration of justice and in particular the "substantial public interest of the community in having those who are charged with criminal offences brought to trial": Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [37]; see also Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [11]. In some respects, quashing the indictment and discharging the accused, at least in the present circumstances of this case, would be akin the grant of a permanent stay which, as was noted in Dupas (at [37]) is "tantamount to a continuing immunity from prosecution". 256 In Jago v District Court of New South Wales (1989) 168 CLR 23, Mason CJ said (at 33), in the context of a court's power to grant a permanent stay, that the "touchstone in every case is fairness" and that the "test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial". Jago is also authority for the proposition that a permanent stay of prosecution is only ever to be granted in rare and exceptional circumstances: at 31 and 34 (Mason CJ), 60 (Deane J) and 76 (Gaudron J); see also R v Glennon (1992) 173 CLR 592 at 605; Dupas at [33]-[35] and Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 at [62]. That is not to say that the same test applies to the question whether the accused should be discharged in the context of this case. It does, however, indicate the significant weight that should be given to the maintenance of public confidence in the administration of justice and public interest in having those who are charged with criminal offences brought to trial. 257 The question must also be considered in light of the "overarching purpose" of the Rules, which is "to facilitate the fair, efficient and timely determination of criminal proceedings in the Court": r 1.04(1) of the Rules. The overarching purpose includes, relevantly, the "efficient use of the judicial and administrative resources available for the purposes of the Court"; the "efficient use of legal and other resources available to the parties to criminal proceedings"; the "fair, efficient and timely disposal of the Court's overall criminal caseload"; and "as far as possible, all preliminary issues … are heard and adjudicated before the start of a trial": r 1.04(2)(a)-(d) of the Rules.

[30]

Appropriate relief in the case of Citigroup, Deutsche Bank and Messrs Tuchman, McLean, Ormaechea and Richardson 258 The relevant considerations in determining the appropriate relief in the case of Citigroup, Deutsche Bank and Messrs Tuchman, McLean, Ormaechea and Richardson are as follows. 259 First, the prosecutor has already been given one opportunity by the Court to correct deficiencies in the indictment. That also occurred in the context of a long history of complaints by the accused at the committal stage concerning the inadequate or defective particularisation of the charges against them. As was noted earlier, limits must be placed on the ability of a prosecutor to change or reframe the charges in an indictment. This is a consideration that weighs against giving the prosecutor another opportunity to file a properly particularised indictment. The weight to be given to this consideration must, however, be tempered to an extent having regard to the relative difficulty involved in properly particularising the complex offences involved in this matter. 260 Second, while the defects and deficiencies in the indictment under consideration in this judgment are important, they are nonetheless for the most part fairly technical. Perhaps more significantly, the defects or deficiencies should be able to be readily rectified. They are by no means intractable. 261 The defects that were found to exist in Judgment No 1 were largely a product of the fact that the prosecutor appears to have erroneously considered that it was unnecessary to include any real details of the factual allegations against the accused beyond the words of the provisions creating the offences. The defects found to exist in the indictment presently under consideration are the result of an imperfect or inadequate attempt by the prosecutor to describe each of the essential factual elements of the offences in question. As noted earlier, that may largely be a product of the complexity of the offences in question. 262 The fact that the defects in the indictment are for the most part fairly technical and should be able to be remedied is a consideration which weighs in favour of permitting the prosecutor another opportunity to file an indictment which complies with the Rules and requirements for a valid indictment. 263 Third, there is nothing concrete to suggest that the accused will suffer any significant or ongoing prejudice should the prosecutor be given another opportunity to remedy the identified defects or deficiencies in the indictment. It could no doubt be inferred that the interlocutory applications concerning the indictment have been a tax on the "legal and other resources available to" the accused. While there was no specific evidence adduced in support of these applications on that point, the accused undoubtedly incurred significant legal costs and expended considerable time in mounting the successful interlocutory applications. Importantly, however, there is no evidence to suggest that giving the prosecutor another opportunity to file a complying indictment will result in any delay to the commencement of the trial, or will give rise to any other material or ongoing unfairness or prejudice to the accused in the conduct of their defence. 264 As noted earlier, the applications by each of the accused in the nature of a demurrer to the indictment have been delayed from November this year to February next year, largely as a result of the interlocutory applications presently under consideration. It is, however, unlikely that the postponement of those applications will delay the commencement of the trial. If the applications are successful, that will effectively be the end of the matter. If they are not, subject to appeals or any further applications, there is no reason to think that the trial will not be able to commence before a jury in May next year. As noted earlier, the witness examinations pursuant to s 23CQ of the FCA Act will now be conducted in November in lieu of the demurrer applications. 265 It should also be noted, in this context, that while the particularisation of the charges in the indictment has been found to be defective, it is doubtful that it could seriously be contended that the accused, save perhaps for Mr Moscati and ANZ, do not know the case that they have to meet. The prosecutor has been ordered to and has filed detailed particulars of the prosecution case pursuant to s 23CE(a) of the FCA Act. The defects found to exist in Judgment No 1 were largely the product of the prosecutor failing to distil and include in the indictment the essential factual allegations contained in the Notice. The defects found to exist in this judgment could fairly be characterised as an imperfect attempt to remedy those deficiencies. The point remains, however, that for the most part the prosecution case has been separately outlined in detail. The accused are unlikely to be taken by surprise if the prosecutor is permitted to remedy the mostly technical deficiencies in the particulars in the indictment. While there could be no doubt that the accused believe that the prosecution case against them as articulated in the Amended Notice is deficient or doomed to fail, that is another issue altogether. 266 The absence of any significant or ongoing prejudice to the accused is a significant factor which weighs heavily in favour of permitting the prosecutor to file a new indictment. 267 Fourth, the charges against the accused are undoubtedly serious criminal charges. As the authorities referred to earlier demonstrate, there is a significant public interest in those charges being heard and determined by a trial by jury, as opposed to being summarily terminated as a result of largely technical defects in the indictment. That is particularly the case in circumstances where those defects should be able to be rectified without causing any prejudice to the accused. This is again a consideration which weighs heavily against discharging the accused. 268 In all the circumstances, in the case of Citigroup, Deutsche Bank and Messrs Tuchman, McLean, Ormaechea and Richardson, I consider that the balance tips in favour of permitting the prosecutor another opportunity to rectify the defects found to be present in the indictment as filed. The appropriate order in the case of those accused is similar to the order made Judgment No 1. The prosecutor will be ordered to file a new indictment pursuant to r 3.07(3) of the Rules which remedies the defects and deficiencies which have been identified in these reasons.

[31]

Relief in respect of Mr Moscati and ANZ 269 The circumstances relating to Mr Moscati and ANZ differ to the circumstances relating to the other accused in one important respect. That difference is that there remains a degree of uncertainty as to the precise nature of the prosecution case against them. 270 There has undoubtedly been a material shift in the prosecution case against Mr Moscati and ANZ. As noted earlier, ANZ and Mr Moscati were both committed for trial on four charges: two charges of being knowingly concerned in contraventions of s 44ZZRF(1) by Citigroup, Deutsche Bank and J.P. Morgan and two charges of being knowingly concerned in contraventions of s 44ZZRG(1) by Citigroup, Deutsche Bank and J.P. Morgan. Those charges were particularised in relevantly identical terms to the charges against the other accused. 271 The indictment first filed in this Court also included two charges (and two alterative charges) against ANZ and Mr Moscati of being knowingly concerned in contraventions of s 44ZZRF(1) and s 44ZZRG(1) by Citigroup, Deutsche Bank and J.P. Morgan. Those charges largely mirrored the charges upon which ANZ and Mr Moscati had been committed for trial. That indictment also included a charge (and an alternative charge) which alleged, for the first time, that Mr Moscati and ANZ had aided, abetted, counselled or procured a contravention of s 44ZZRG(1) by J.P. Morgan. 272 The August Indictment includes only one charge (and one alternative charge) against ANZ and Mr Moscati. Those charges allege that Mr Moscati and ANZ aided, abetted, counselled or procured a contravention of s 44ZZRG(1) by J.P. Morgan. The charges upon which ANZ and Mr Moscati were committed for trial - those alleging that they were knowingly concerned in contraventions of s 44ZZRF(1) and s 44ZZRG(1) by Citigroup, Deutsche Bank and J.P. Morgan - have effectively been abandoned. More significantly, as has already been discussed in detail earlier in these reasons, the pleading and particularisation of those charges in the August Indictment indicate a significant shift in the prosecution case against ANZ and Mr Moscati; that shift being that the prosecutor no longer appears to allege that Mr Moscati and ANZ knew the precise details of the 5-7% Understanding or the cartel provision allegedly contained within it. The shift is even more pronounced in the Proposed Indictment. 273 The central allegation against ANZ and Mr Moscati now is that they intended to aid, abet, counsel or procure an offence "of the type" J.P. Morgan committed. The problem is that the prosecutor has effectively had three attempts at particularising the charges against ANZ and Mr Moscati. Each of them has been a failure. The drafting of the last version - the version in the Proposed Indictment - appears to be particularly hurried and ill thought-out. The nature of the contravention that Mr Moscati and ANZ are alleged to have intended to aid, abet, counsel or procure and how it is said to be "of the type" committed by J.P. Morgan remains somewhat unclear. 274 ANZ's and Mr Moscati's trenchant complaints concerning the prosecutor's conduct in relation to the pleading and particularisation of the charges against them are for the most part well founded. So too are their complaints concerning the adequacy of the particulars of the charges against them, both in the August Indictment and the Proposed Indictment. The defects in the charges against ANZ and Mr Moscati are undoubtedly more substantive than the defects in the charges against the other accused. 275 ANZ and Mr Moscati went further in their criticisms of the prosecution case. They submitted, by reference to those parts of the Amended Notice which outline the factual basis of the prosecution case against them, that the charges are incoherent. The difficulty with those submissions, however, is that they really stray into the domain of an application in the nature of a demurrer, as opposed to an application concerning formal defects in the indictment. There is nothing to prevent ANZ and Mr Moscati from advancing those submissions in support of their foreshadowed demurrer applications. Those applications, however, cannot be heard or determined until the terms of the indictment are finalised. 276 The question of the appropriate relief in the case of ANZ and Mr Moscati is more finely balanced than in the case of the other accused. Ultimately, however, I am not persuaded that the appropriate relief at this stage is to quash the charges and discharge them. In all the circumstances, the balance tips in favour of giving the prosecutor at least one further opportunity to properly plead and particularise the charges against ANZ and Mr Moscati. The considerations which lead me to that conclusion are as follows. 277 First, for the reasons given earlier, I am not persuaded, at least at this stage, that the prosecutor will not be able to properly plead and particularise a charge against ANZ and Mr Moscati based on the allegation that they intended that their conduct would aid, abet, counsel or procure the commission of an offence (including its fault elements) of the type committed by J.P. Morgan. Careful attention will, however, have to be given to the particulars of what ANZ and Mr Moscati knew and intended in that regard. 278 Second, the submissions by ANZ and Mr Moscati concerning the incoherency of the prosecution case against them are best considered in the context of a properly particularised charge, if that is able to be achieved. Perhaps more significantly, those arguments are best made and considered in the context of the foreshadowed applications in the nature of a demurrer. 279 Third, for essentially the same reasons as those given earlier in the context of the other accused, I am not persuaded that providing the prosecutor with a further opportunity to plead and particularise its case against ANZ and Mr Moscati will cause any irremediable or ongoing prejudice to ANZ and Mr Moscati. The prosecutor will be required to file a new indictment within a fairly short timeframe. I do not consider that giving the prosecutor a further opportunity to file an indictment with properly particularised charges against ANZ and Mr Moscati will imperil the other pre-trial applications or the trial date next year, should the other applications be unsuccessful. 280 Fourth, I again consider that significant weight should be given to the substantial public interest in having those who are charged with criminal offences brought to trial. While it must be accepted that the prosecutor's apparent inability, up to this point, to properly particularise the charges against ANZ and Mr Moscati is likely to have given rise to a degree of unfairness to them, that unfairness cannot be considered in isolation. 281 In all the circumstances, I am satisfied that the interests of justice favour allowing the prosecutor another attempt at properly pleading and particularising the charges against ANZ and Mr Moscati. The appropriate order in respect of ANZ and Mr Moscati is essentially the same as the order that will be made in respect of the other accused.

Parties

Applicant/Plaintiff:

Commonwealth Director of Public Prosecutions

Respondent/Defendant:

Citigroup Global Markets Australia Pty Limited

Legislation Cited (4)

Federal Court of Australia Act 1976(Cth)

Federal Court (Criminal Proceedings) Rules 2016(Cth)

Competition and Consumer Act 2010(Cth)

Criminal Code Act 1995(Cth)

Cases Cited (35)

News Limited v South Sydney District Rugby League Football Club Limited (2003) 215 CLR 563; [2003] HCA 45 R v Bainbridge [1960] 1 QB 129 R v Glennan [1970] 2 NSWR 421 R v Glennon (1992) 173 CLR 592 R v Holliday (2017) 260 CLR 650; [2017] HCA 35 R v Kaldor (2004) 150 A Crim R 271; [2004] NSWCCA 425 R v Licciardello (2017) 3 Qd R 206; [2017] QCA 286 R v LK (2010) 241 CLR 177; [2010] HCA 17 R v Tannous (1987) 10 NSWLR 303 Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75 Stokes v The Queen (1990) 51 A Crim R 25 Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53

WIGNEY J: 1 On 7 July 2021, I ordered the prosecutor in this matter, the Commonwealth Director of Public Prosecutions, to file a new indictment which remedied a number of identified defects and deficiencies in the existing indictment: Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 1 - Indictment) [2021] FCA 757 (Judgment No 1). The prosecutor eventually filed a new indictment in purported compliance with that order. The accused contend, however, that that indictment does not remedy all of the previously identified defects and deficiencies. Indeed, they contend that it contains new defects and deficiencies. The accused applied for orders that the indictment be quashed and that they be discharged pursuant to s 23CP(2)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). 2 For the reasons that follow, the contention by the accused that the indictment filed after, and as a consequence of, Judgment No 1 is deficient or defective must be accepted. I do not, however, consider that the defects are such as to warrant an order quashing the indictment and discharging the accused. The prosecutor should be given at least one more opportunity to file an indictment which both complies with r 3.01 of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) and satisfies the common law requirements for a valid indictment.

[2010] HCA 20

[2014] VSCA 270

[2017] QCA 286

(2009) 239 CLR 175

(2010) 241 CLR 237

(1992) 173 CLR 653

(1985) 156 CLR 473

(2011) 245 CLR 282

(1989) 168 CLR 23

(1987) 163 CLR 508

(1986) 161 CLR 423

(2006) 199 FLR 303