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

1. A direction be made that the following persons appear for examination before the Court on a date to be fixed, in relation to the topics identified in the annexures to the interlocutory applications filed by the First, Second and Fourth Accused filed 4 November 2021: (a) Mr Mark Dewar; (b) Mr Richard Galvin; and (c) Mr Jeffrey Herbert-Smith.
2. A direction be made pursuant to s 23CQ(1) of the Federal Court of Australia Act 1976 (Cth) that Mr Andrew Best and Mr Robert Priestley appear for examination before the Court, on a date to be fixed, in relation to the topics identified in the documents referred to in order 1. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 The first, second, fourth, fifth and sixth accused in this matter have applied for an order that certain prosecution witnesses appear for a pre-trial examination before the Court in respect of certain identified topics. 2 A similar order was recently sought and made in relation to prosecution witnesses who, as officers of the Australian Competition and Consumer Commission (ACCC), were involved in interviewing and taking witness statements from officers of J.P. Morgan Administrative Services Australia Limited (or its related entities): Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 4 - examination orders) [2021] FCA 1237 (Judgment No 4). The examination orders now sought relate to officers of J.P. Morgan who provided those witness statements: Mr Robert Priestley, Mr Mark Dewar, Mr Richard Galvin, Mr Jeffrey Herbert-Smith and Mr Andrew Best (collectively, the J.P. Morgan witnesses). Messrs Dewar, Galvin and Herbert-Smith gave evidence at the committal hearing; Mr Priestley and Mr Best did not. 3 The background to this application may be derived from earlier judgments in respect of this prosecution, including Judgment No 4. Judgment No 4 discusses the Court's power to make examination orders, both pursuant to s 23CQ of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of witnesses who did not give evidence at the committal proceedings, and pursuant to s 23 of the FCA Act, or the Court's implied or incidental powers, in respect of witnesses who gave evidence at the committal proceedings. The critical consideration, in both instances, is whether it would be contrary to the interests of justice to proceed to trial without the relevant witnesses first being examined. 4 I am satisfied in all the circumstances that it would be contrary to the interests of justice to proceed to trial without the J.P. Morgan witnesses being subject to pre-trial examinations. That is so for a number of reasons. 5 First, the J.P. Morgan witnesses are all no doubt important prosecution witnesses. They were all, to varying degrees, involved in, or aware of, events or circumstances central to the prosecution case against the accused. Each of them, other than Mr Best, has been granted immunity from prosecution. 6 Second, while Messrs Dewar, Galvin and Herbert-Smith gave evidence at the committal hearings, that occurred in circumstances where the prosecutor had not fully or properly disclosed to the accused important material relating to those witnesses. That disclosure material has now been provided to the accused. It is unnecessary to detail the nature of the disclosure material, save that it includes documents which record the accounts the witnesses gave when first interviewed in relation to the relevant events as part of an internal investigation by J.P. Morgan. The disclosure material also includes some draft witness statements prepared by the ACCC. It is also unnecessary to explain how it came to be that the disclosure material was not disclosed at the committal stage. It suffices to note that the fact that the accused did not have access to the disclosure material at the committal stage means that the accused were not in a position to fully or properly examine the witnesses at that stage. 7 Third, the failure by the prosecutor to fully or properly disclose the disclosure material at the committal stage also goes some way towards explaining why the accused did not apply to examine Mr Priestley and Mr Best at the committal proceedings. It is at least likely that the accused would have sought and obtained orders permitting them to examine Mr Priestley and Mr Best at the committal proceedings had there been adequate disclosure at the time. 8 Fourth, the topics about which the accused propose to examine the witnesses are discrete and confined. The topics, in summary, relate to the information contained in the recently produced documents relating to J.P. Morgan's internal investigation into the relevant events and circumstances and to the dealings between officers of the ACCC and the J.P. Morgan witnesses in relation to the preparation of draft and final witness statements. I am satisfied that these topics are appropriate topics for pre-trial (or 'Basha') witness examinations. 9 As for the accounts that the witnesses gave when interviewed as part of the J.P. Morgan internal inquiry, it is suggested by the accused that there are or may be inconsistences between those accounts and the statements the witnesses eventually provided to the ACCC. Potential inconsistencies in accounts given by important prosecution witnesses are generally considered to provide a proper basis for pre-trial examinations: see for example R v Qaumi (No 2) (Basha Inquiry) [2015] NSWSC 1715 at [15]; R v Ibrahim [2007] NSWSC 1140. As for the dealings between ACCC officers and the J.P. Morgan witnesses in relation to the witnesses' statements, as discussed in detail in Judgment No 4, I am satisfied that the accused have a legitimate forensic purpose for examining the J.P. Morgan witnesses prior to the trial in relation to the manner and circumstances in which ACCC officers drafted and edited their statements. 10 Fifth, the proposed examinations will not impede or delay the commencement of the trial in any way. Indeed, subject to the outcome of other foreshadowed pre-trial applications, the conduct of the pre-trial examinations is likely to facilitate the efficient conduct of the trial before the jury which is listed to commence in May next year. 11 Sixth, the prosecutor - reasonably and sensibly - does not oppose the proposed pre-trial examinations. That perhaps reflects an acceptance or acknowledgment that the examinations are in the interests of justice in the particular circumstances of this case. 12 It is, in all the circumstances, appropriate to make orders in accordance with the interlocutory applications filed by the first, second, fourth, fifth and sixth accused filed on 4 and 5 November 2021. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.