BROMWICH J:
1 These are reasons for a ruling given orally immediately after legal argument had concluded on 1 April 2021. That ruling rejected the objection by each of the accused to the adducing of certain evidence from a prosecution witness, Mr Mark Grayson, upon a primary basis advanced by the prosecutor. These also reasons for a further ruling, given now, that the prosecutor is disallowed from adducing that evidence upon a further basis advanced, being a question that was reserved at the time of legal argument. Given that the evidence of Mr Grayson has now concluded with the impugned component adduced upon the basis of the ruling already given, the effect of this further ruling is to limit the use to which that evidence may be put.
2 In summary, charges 1 and 2 in the indictment respectively allege that, in the period between about 13 May 2014 and about 4 May 2016, the first accused, The Country Care Group Pty Ltd and the second accused, Mr Robert Hogan, attempted to induce members of a group of subcontractors to Country Care, known as the Country Care Group (CCG, also referred to as TCCG), to contravene a cartel offence provision, by making an arrangement or arriving at a understanding that they would not advertise for sale goods that Country Care contracted with the Department of Veterans Affairs to sell under a tender at below those contracted prices. The conduct giving rise to Country Care's alleged offence was that of Mr Hogan, that company's managing director. The third accused, Mr Cameron Harrison, is alleged to have aided, abetted, counselled or procured the alleged offence by Mr Hogan. The elements for the charges in charges 1 and 2 were explained in Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 30; 275 FCR 342 (Country Care FC).
3 The second schedule to the third further amended notice of the prosecution case dated 28 August 2020 (Notice), which did not change in a way that is material for the current issue in the immediately pre-trial 10 March 2021 iteration, included a general summary directed to charges 1-3 in the indictment:
[6] From May 2014, HOGAN attempted to secure the agreement of members to refrain from advertising goods at prices below the Contracted Prices. He did this by engaging in a course of conduct directed to that end. This conduct included making addresses to the CCG membership at conferences, communications with individual members, and requesting that CCG members sign a written sub-contracting agreement with CC Co which included a clause restraining them from advertising products at less than the Contracted Prices.
[7] In engaging in this course of conduct, HOGAN was attempting to induce CCG members to reach a common understanding, that it was in their mutual interest that the DVA not discover that products being supplied through CC Co under the MFS Tender were available to the general public at a lower price directly from CCG members. In endeavouring to persuade CCG members to reach this understanding, HOGAN was conscious that the advertised price of a single member created risk for the whole group. As a result, he attempted to persuade, or to arrange for, all members of CCG to act in a consistent fashion by not advertising their products at prices that were lower than the Contracted Prices.
4 The course of conduct referred to at [6] of the Notice reproduced above included Mr Hogan giving a presentation at a Country Care Group annual members conference at St Kilda, Melbourne, on 13 May 2014, during which he spoke to a PowerPoint presentation: see Notice [44]-[54A], especially at [46]-[49] and [51] (the evidence referred to at [50] not having been successfully tendered thus far at the trial).
5 That PowerPoint presentation included the following two slides:
(1) Slide 20
WINNING CONTRACTS
CHOOSING PRODUCTS FOR CONTRACTS
Maintain Margins for Members
How do we maintain it NATIONALLY?
First step of procurement departments
What makes it hard for TCGG
(2) Slide 21
LOW PRICES ON MEMBERS WEBSITES
NEVER ADVERTISE CONTRACTED
PRODUCTS ON WEBSITES FOR
LESS THAN THE CONTRACTED PRICE.
6 The prosecution case is that while Mr Hogan displayed these and other slides, he delivered an oral presentation which was consistent with their content. In particular, the prosecutor contends that he advocated a course of action for CCG members of refraining from advertising products to the public at prices below the DVA contract prices, identifying the risk that if they did not do this, they would be unable to maintain their profit margins on tender products.
7 Part of this oral presentation was alleged, at [51(a)] of the Notice, to include reference to government procurement departments checking prices, particularly online advertising, against contract prices. That subparagraph had a footnote numbered 49, which cited a number of witness statements, including the statement of Mr Grayson of 22 June 2017 at [28].
8 In his statement, Mr Grayson:
(1) at [25] refers to Mr Hogan giving a PowerPoint presentation, and makes some general comments about that presentation;
(2) at [26] identifies the PowerPoint presentation and comments upon it generally by reference to [25] and refers to the contents of slides 14, 16 and 18;
(3) at [27] states that he could not recall whether he saw slide 21 at the St Kilda conference and reproduces the text of that slide as set out at [5(2)] above; and
(4) at [28], following the reproduction of the text of slide 21 at [27], states:
I do not recall now whether this topic was discussed at the St Kilda Conference. My recollection is that it was discussed at another conference in the Gold Coast later in 2014 (the Gold Coast meeting), although it is possible that it was discussed at the St Kilda Conference. I cannot recall whether the Gold Coast meeting was a CC Company Group meeting or a Peak Care group meeting, however I recall that it was held in a long rectangular room and that Rob Hogan gave a presentation. In his presentation, Rob HOGAN said words to the following effect:
"Don't advertise your prices online lower than the DVA contracted price. The DVA looks online to compare prices and if they see lower prices on line they will question why our prices for them are high."
9 During the course of Mr Grayson's evidence-in-chief on Wednesday, 31 March 2021, he gave evidence that he had attended the CCG members conference at St Kilda in May 2014, and that both Mr Hogan and Mr Harrison were there. He agreed that various presentations had been given when he was present, identified the PowerPoint presentation which he said he thought was from the St Kilda conference, and agreed that Mr Hogan had given a presentation. He was taken to the PowerPoint presentation and had his attention directed to the text of slide 21, reproduced above, which was read onto the trial transcript, being the substance of [27] of his statement. He then gave the following evidence apparently by reference to [28]:
[MR BARRY:] Was there any presentation given by anybody in relation to that topic at this conference that you can recall?---This - this particular slide, I think, I've said, I don't remember the slide itself. And the reason I put it down to is because, yeah, I was very intent on concentrating growing the business and taking from the presentation things that I could affect. So you know, I'm just saying it is a slide that I don't remember specifically but I remember discussions about the topic.
At that meeting or somewhere else?---I couldn't remember if it was at that meeting or the one on the Gold Coast where - - -
MR JORDAN: Objection.
THE WITNESS: - - - there was a specific - - -
MR JORDAN: Objection. Sorry. Excuse me. The prosecutor has not opened on any meeting at the Gold Coast. It's not part of the prosecution case as disclosed to us.
10 The objection by senior counsel for Mr Hogan was joined by the other two accused. The substance of the objection was that there had not been any mention in the Notice, nor in the prosecutor's opening, of a meeting of the buyer's group, Peak Care, at the Gold Coast in October 2014. The substantive argument as to the objection was heard the next day, 1 April 2021 (Easter Thursday). Ahead of that argument, the prosecutor furnished short written submissions, advancing two bases for being permitted to adduce from Mr Grayson evidence based on [28] of his statement. The burden of those submissions are as follows:
(1) Paragraph 28 was not objected to previously, despite express reference being made to it during the course of a week-long pre-trial hearing on objections to evidence in November 2020, in particular on 13 November 2020. There was no objection to evidence on the topic of not advertising prices for less than the contracted price at the St Kilda conference in May 2014 or at another conference in the Gold Coast later in 2014.
(2) Mr Grayson's evidence so far in the trial is that he attended the St Kilda conference in May 2014 and remembered discussions on the topic in slide 21 of "never advertise contracted products on websites for less than the contracted price", but could not remember if they occurred at the St Kilda meeting or the meeting on the Gold Coast. (This was a slight departure from his statement which in substance referred to the Gold Coast conference being the more likely occasion.)
(3) There is other evidence that this topic was discussed at the time when slide 21 was shown at the St Kilda conference in May 2014, but no other evidence to suggest that the topic was discussed at the Gold Coast conference.
(4) The jury, in considering what findings to make about Mr Hogan's presentation at the St Kilda conference in May 2014, may take into account Mr Grayson's evidence, as well as the other evidence about that conference, including the evidence of witnesses such as Ms Watson, as well as the content of slide 21 itself.
(5) The prosecutor will submit, in the closing address, that the jury should find, on the preponderance of the evidence, that Mr Hogan discussed this topic, and that the discussion occurred at the St Kilda conference.
(6) The jury is entitled to weigh up Mr Grayson's account of when the topic was discussed against the other evidence as to when the topic was discussed, quoting R v Hillier [2007] HCA 13; 228 CLR 618 at [48], which in turn quotes Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535.
(7) The prosecutor is acting consistently with the Notice at [44]-[54A], which is and always has been that Mr Hogan discussed this topic at the St Kilda conference and is therefore not changing the prosecution case, and in particular is not seeking to add to the physical element of conduct for charges 1-3, as described in Country Care FC at [55(1)].
11 While Hillier was addressing an issue concerning circumstantial evidence, as Gibbs CJ and Mason J pointed out in Chamberlain at 535 in part of the passage quoted in Hillier:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence: cf Weeder v. The Queen [(1980) 71 Cr App 228, at p. 231].
12 The objection by the accused to the adducing of evidence from Mr Grayson based upon [28] of his statement as to the prosecutor's primary submissions outlined above, is in substance an argument as to the danger of unfair prejudice outweighing the probative value of the evidence. The only prejudice identified is that the jury will find that the comments were made by Mr Hogan at the Gold Coast conference, which was a Peak Care conference, rather than at the St Kilda CCG member's conference. Given the way in which the prosecutor intends to lead this evidence, including relying upon other evidence to place the presentation at St Kilda, expressly disavowing it if the jury finding is that it was said at the Gold Coast conference, the danger is slight and easily remedied by a straightforward direction to the jury if required and sought by the accused. Any such direction would be based upon the passage from Chamberlain reproduced immediately above. For that reason, the objection was rejected at the time of the legal argument on 1 April 2021.
13 Further or in the alternative, the prosecutor submits that Mr Grayson's evidence that he recalled discussions about the topic in slide 21 ("never advertise contracted products on websites for less than the contracted price"), but could not recall whether they were at the St Kilda meeting or the one on the Gold Coast, is relevant to the fault element of the intention of Country Care and Mr Hogan to attempt to induce CCG members to enter into an arrangement or arrive at an understanding, as identified in Country Care FC at [55(2)]. In support of that argument, the prosecutor submits that:
(1) both the St Kilda conference and the Gold Coast conference occurred in 2014, during the relevant charge period;
(2) even if the Gold Coast meeting was a Peak Care conference, there was a large overlap between the Country Care Group members and the Peak Care members and meetings of the two membership groups were generally held together;
(3) the intended audience of the topic in slide 21 ("never advertise contracted products on websites for less than the contracted price") was CCG members, in their capacity as such, as it was they who advertised and sold products;
(4) accordingly, regardless of whether the topic was discussed by Mr Hogan at the St Kilda conference or the Gold Coast conference in 2014, Mr Grayson's evidence supports the circumstantial case as to his and Country Care's state of mind as to the intention to have CCG members enter into the alleged arrangement or understanding.
14 The objection to this alternative basis for adducing evidence from Mr Grayson based upon [28] of his statement is clear and concise: there must be a coincidence between the physical element of conduct and the fault element of intention. This objection must be upheld insofar as it places any reliance upon proof of intention attaching to an event unrelated to the charged conduct, namely the Gold Coast conference, or indeed any event unrelated to conduct directed to CCG members adduced as proof of the conduct physical element: see R v Campbell [2008] NSWCCA 214; 73 NSWLR 272 at [44] per Spigelman CJ, [137] per Weinberg AJA and [183] per Simpson J (as her Honour then was) agreeing. While Campbell dealt with the need for a coincidence in time between the physical and fault elements, the necessary nexus is not only temporal. The intention must be demonstrated to be directed to the conduct charged, not to some other conduct. It is intention to engage in that conduct, not some broader state of mind, such as knowledge or belief for which a wider pool of evidence may be relied upon. The manifestation of intent cannot ordinarily be derived from conduct that is unrelated to the conduct to which charges 1 and 2 (and thereby charge 3) are directed, unless it is linked in some probative way. In this case, the jury will likely need to be directed that they must be satisfied that the comments Mr Grayson heard were made by Mr Hogan at the St Kilda conference before that evidence can be taken into account.
15 Evidence adduced leaving it open to be attributed to something said by Mr Hogan at the Gold Coast Peak Care conference is also covered by my prior ruling in Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 4) [2020] FCA 1715 at [4], proscribing adducing 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.
16 It is important to note that this conclusion about evidence relied upon to establish the intention fault element (element 2) going to the conduct physical element (element 1), does not detract from the broader basis for adducing evidence of the fault element of knowledge or belief (element 4) going to the circumstance physical element (element 3) identified in Country Care FC, especially at [141].
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Ruling of the Honourable Justice Bromwich.