Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd

Counsel for the Second Accused: D Jordan SC, S Keating

Solicitor for the First and Second Accused: HWL Ebsworth Lawyers

Counsel for the Third Accused: D Staehli SC, C Bannan

Solicitor for the Third Accused: Mills Oakley

BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Prosecutor

AND: THE COUNTRY CARE GROUP PTY LTD First Accused

BROMWICH J: 1 This is the published version of ex tempore reasons given for an evidence ruling given on 18 November 2020. The ruling was principally directed to evidence proposed to be adduced by the prosecutor regarding conduct related to online price monitoring by members of the Peak Care Equipment Pty Ltd buying organisation and related conduct. The first accused, The Country Care Group Pty Ltd, was a shareholder member of that organisation, and the second accused, Mr Hogan, was at certain times the chairman and later a director. 2 Having carefully considered the written and oral submissions on this topic, directed as they were to the proposed evidence of Mr Smith as being broadly representative of the evidence objected to, I am satisfied that in the greater part, the objections made by the accused have been made good. However, some parts of that evidence collateral to the main objection is admissible. 3 My ruling is that the prosecutor may adduce evidence that proves or tends to prove that Mr Hogan was aware of monitoring by the Department of Veterans' Affairs (DVA) of advertised prices for DVA tender list goods. The prosecutor may also adduce evidence of online price checking or monitoring of DVA tender list goods by Mr Hogan, or at his behest, or brought to his attention. 4 However, the prosecutor may not lead evidence of steps taken by or at the behest of Mr Hogan, or otherwise brought to his attention, in relation to any approaches made to suppliers to raise online advertising prices, if that evidence concerns conduct that falls outside any part of the conduct alleged to constitute the physical element of charges 1 and 2 in the indictment and thereby charge 3. That evidence is excluded in the exercise of the discretion in s 135 of the Evidence Act 1995 (Cth) because I am satisfied that its probative value is substantially outweighed by the danger that such evidence might be unfairly prejudicial to the accused, be misleading or confusing, or cause or result in an undue waste of time. 5 The basis for that conclusion is that the conduct evidence that is excluded from being adduced can readily be seen to amount to conduct of the very kind that is alleged in charges 1 and 2 but is not charged. In my view, this carries a very real danger that the jury will misuse that evidence despite any direction I could give because of the complexity of the factual and legal issues involved in this criminal and competition law case, that it will in any event be misleading or confusing to a jury to understand the distinction between what has been charged and what has not, the limited use proposed going to state of mind, and because it will take a considerable time and effort on the part of the accused to be able to separate out what has been charged from what has not and most likely to justify this uncharged conduct. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Ruling of the Honourable Justice Bromwich.