BROMWICH J:
1 These are reasons for my conclusion that a direction sought by the first and second accused in relation to specific intent as to common law intent should be given, but not in the terms proposed. This conclusion was reached despite the direction not being properly sought until after the prosecutor's closing address, which I found did not comply with the Jury Directions Act 2015 (Vic).
2 When an accused is legally represented, the express purpose of Part 3 of the Jury Directions Act, set out in s 9, is to assist the trial judge to determine the matters in issue, the directions to be given to the jury, and the content of those directions; and, to ensure that legal practitioners appearing in the trial discharge their duty to assist in the determination of those matters. The practical effect of those provisions is to prevent the very sort of dispute that arose during the course of closing addresses, by requiring this assistance be given before closing addresses commence. I referred to those provisions on several occasions during the evidence phase of the trial, as noted below.
3 Section 12 of the Jury Directions Act provides that "prosecution and defence counsel must each request that the trial judge give … to the jury particular directions in respect of … the matters in issue … and … the evidence in the trial relevant to the matters in issue". The practical effect of s 12, in the context of ss 11 and 14 to 16, is that closing addresses are then given in the knowledge of all substantial particular directions to be given to the jury. In early April 2021, long before the direction under consideration was sought, I expressly communicated to the parties my rejection of the proposition that s 12 should not be read consistently with ss 5, 9 and 11 of the Jury Directions Act so as to impose no timeframe in which a request for a direction should be made. This rejection means that the obligation in s 12 must ordinarily be discharged by making any such request for a direction before the prosecutor's closing address commences.
4 Section 14(1) provides that a direction that is sought under s 12 must be given unless there are good reasons for not doing so. That obligation imposed on a trial judge depends upon s 12 being complied with. If it is not, the residual discretion to give a direction anyway is contained in s 16. A good reason for not giving a direction sought under s 12 would be that, despite compliance with the formal requirements of the section, the terms of the direction sought are incoherent or otherwise legally incorrect. There is no requirement to be found in ss 12 or 14(1) for the trial judge to become a party's drafter, although that may be, to some extent, inevitable when a disagreement needs to be resolved, or the substance of the direction sought can be better expressed.
5 Section 15 of the Jury Directions Act provides that, subject to s 16, the trial judge must not give the jury a direction that has not been requested under s 12. Section 16 provides that there must be substantial and compelling reasons to give a direction that was not sought under s 12.
6 Legal argument on the directions to be given to the jury took place after the close of evidence, on 6 and 7 May 2021. That argument took place in the context of competing documents as to the directions to be given in relation to charges 1 and 2. There was no overt reference to any different or additional particular direction sought to be added to either of those documents, as opposed to changes or addition to the content of what was overtly sought.
7 Written submissions for the first and second accused, The Country Care Group Pty Ltd and Mr Hogan, on attempt at common law dated 6 May 2021 were emailed to my associate at 9.51 pm that night (attempt written submissions). Those submissions:
(a) at [30] describe charges 1 and 2 in the indictment as involving allegations of an attempt to induce others to enter into an arrangement that would have had the likely effect of fixing prices for the supply of goods by parties to the cartel arrangement; and
(b) at [31], stated (with the same formatting reproduced below):
In accordance with the common law authority referred to above, and with the particular assistance of the analysis by Toohey J in Tubemakers, the specific intention that must be established in order to prove the allegations of 'attempt to induce' in counts 1 and 2 may be expressed as follows:
There was no attempt to induce members of the Country Care Group to contravene the alleged cartel provision unless the accused had the relevant intention - that is, they acted with the purpose of bringing about a result.
In this case, you must be satisfied that the accused acted with the purpose of bringing about the result - of inducing members of the Country Care Group to enter into a multilateral arrangement or understanding which would have the likely effect of maintaining the prices at which Country Care Group members supplied goods (being the goods that Country Care Pty Limited contracted to sell under the MFS Tender) to the general public (as alleged at [10]-[10A], [84] of the [Third Further Amended Notice of the Case for the Prosecution].
8 I was told much later, on 19 May 2021, that the indented text in [31] of the attempt written submissions was the accused's' proposed form of words for a direction, and that such a direction had been sought on 7 May 2021 when senior counsel for Mr Hogan referred to it being good to know if I was "proposing to direct in terms of mens rea and in terms of actus reus consistently with what's in this document" referring to the attempt at common law submissions. This was said in the context of the legal argument on the aspect of attempt that concerned the actus reas and the issue of how to direct the jury on conduct needing to be more than preparatory. I was also directed to references to this topic by senior counsel for Country Care the previous day, 6 May 2021. At no time was it expressly or otherwise clearly stated that a direction was being sought in accordance with the indented text in [31] of the attempt written submissions. I certainly did not understand that to be the case, a view that has not changed upon reviewing the transcript or the chronology of events next referred to.
9 The following day, 20 May 2021, I was provided with a chronology giving further details of how the topic of attempt was raised both prior to, and on, 6 and 7 May 2021. That chronology was seriously deficient in a number of respects. I detailed why that was so in open court, and supplement those statements with what follows:
(a) The start of the chronology should have been 6 March 2020, because that is the date that the Full Court appeal decision in this matter was handed down: Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) [2020] FCAFC 30; 275 FCR 342. At [147] the Full Court said:
The Jury Directions Act will apply to the trial of the accused, which will take place in Victoria, by reason of subs 68(1) of the Judiciary Act 1903 (Cth).
Thus any regime of leaving the discussion of directions until after closing addresses or even until the summing up is under way clearly had no application to this trial. There is no need in Victoria for a leave regime on appeal akin to r 4.15 (until 1 May 2021, r 4) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(b) The next entry in the chronology should have been day 16 of the trial, 9 April 2021. In particular, I referred the parties to ss 5, 9, 10, 11, 12, 15 and 16 of the Jury Directions Act, and said "I'm not to give the jury a direction that hasn't been requested under section 12", subject only to s 16. I then went on to say that under s 12 "legal practitioners must request that particular directions be given or not be given in respect of matters in issue and the evidence in the trial relevant to the matters in issue".
(c) On review of the transcript for 5 May 2021, there seems to be a suggestion by the accused that it was up the prosecutor to propose directions and for accused to then comment upon them. While there is nothing inherently wrong with the prosecutor choosing to assume that responsibility, that does not in any way detract from the individual duty imposed upon counsel for each of the accused by s 9(b) and s 12 of the Jury Directions Act. In relation to charges 1 and 2, I took that duty to be sought to be addressed:
(i) by the prosecutor's document headed "prosecution elements charges 1 and 2"; and
(ii) by first and second accused in relation to the document headed "A1 and A2 elements charges 1 and 2", emailed to my chambers at 8.29 pm on 5 May 2021,
because each document contains the text of the directions sought, subject, of course, to amendment or adjustment arising from the legal argument that was to follow.
(d) I was entitled, and each party was entitled, to regard each of the above documents as containing all of the directions sought under s 12 of the Jury Directions Act unless expressly and separately identified. In particular:
(i) [5] of the prosecutor's document and [3] and [6] of the document for the first and second accused addressed conduct in relation to attempt; and
(ii) [8] and [9] of the prosecutor's document and [21] and [22] of the document for the first and second accused addressed intent in relation to attempt.
(e) There was legal argument about the content of the direction as to conduct in relation to attempt, conducted by reference to the first and second accused's written common law attempt submissions, referring to [16], but focusing on the content of [35] to [36] as to the words that should appear in the direction. No reference was made to [31], let alone any indication given that a direction was sought in the terms set out in that paragraph.
(f) The common law attempt submissions, and in particular [6] of those submissions refer only to "assisting in the formulation of directions to the jury" are to be read as assisting in discharging the duty under s 12 of the Jury Directions Act.
(g) None of the submissions made on 6 or 7 May 2021 made any reference to a particular direction that was sought as to specific intent for common law intent. What was said did not communicate, or even attempt to communicate, that a direction was sought in the terms of the text in [31] of the first and second accused's common law attempt submissions. I was and am unable to see why the prosecutor would have, or even could have, understood that indented text in [31] of the attempt written submissions was a proposed direction that was sought.
10 In light of the foregoing, it is plain that the express obligation imposed upon counsel by s 12 of the Jury Directions Act to "request that the trial judge give … to the jury particular directions in respect of … the matters in issue … and … the evidence in the trial relevant to the matters in issue" prior to the commencement of closing addresses was not complied with by senior counsel for either Country Care or Mr Hogan. The prosecutor was not on notice that such a direction was sought and accordingly did not address this in his closing address. Senior counsel for Country Care took advantage of this by expressly telling the jury that this was not addressed by the prosecutor. As the following demonstrates, following an entirely proper and ethical concession by the prosecutor that a specific intent direction for common law attempt was nonetheless required, a significant and unfair forensic advantage was obtained by the accused to the detriment of the prosecutor.
11 The part of the attempt at common law submission dealing with mens rea was not addressed in oral argument other than in passing until 19 May 2021, and only then in the context of a concern raised by the prosecutor about the closing address for Mr Robert Hogan on this topic. Those submissions trace though a series of criminal cases on attempt (including by reference to an out of date edition of a Canadian criminal law textbook published in 2000), and civil cases on competition law, to explain the principle that the specific intention for attempt must be directed to the result or consequence that is alleged to have been sought to be achieved. In ordinary criminal law cases such a result of consequence can ordinarily be stated with some ease, for example in cases relating to drugs, murder or fraud.
12 The civil competition law cases referred to and relied upon in the attempt at common law submissions are:
(a) Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455 (Toohey J) at 473 and 479;
(b) Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 (Toohey J) at 183-4; and
(c) Trade Practices Commission v Service Station Association Ltd (1992) 109 ALR 465 (Heerey J) at 486-8.
13 On 6 May 2021, passing reference was also made by the prosecutor to the more recent decision in Australian Competition and Consumer Commission v Australian Egg Corp Ltd [2017] FCAFC 152; 254 FCR 311 at [92], citing Tubemakers.
14 None of those competition law cases describe the result sought to be achieved by the attempt with the granular detail that was later asserted to be necessary:
(a) In Tubemakers at 479, reference is made to the purpose of bringing about a result, being the substantial lessening of competition.
(b) In Mobil Oil at 183-4, citing Tubemakers, reference is made to an intention to bring about the prohibited result, described as inducing petroleum retailers "not to sell super grade petroleum at a price less than [a stipulated price]", an allegation which succeeded as to some retailers spoken to and not as to others.
(c) In Service Station Association at 486-8, it was found that "the respondents did not have the intention to bring about arrangements or understandings to fix, control, or maintain prices", without further detail.
15 For ease of reference, I repeat the text in the attempt written submissions at [31], only later described as the direction that was being sought on 7 May 2021:
There was no attempt to induce members of the Country Care Group to contravene the alleged cartel provision unless the accused had the relevant intention - that is, they acted with the purpose of bringing about a result.
In this case, you must be satisfied that the accused acted with the purpose of bringing about the result - of inducing members of the Country Care Group to enter into a multilateral arrangement or understanding which would have the likely effect of maintaining the prices at which Country Care Group members supplied goods (being the goods that Country Care Pty Limited contracted to sell under the MFS Tender) to the general public (as alleged at [10]-[10A], [84] of the [Third Further Amended Notice of the Case for the Prosecution].
16 Read out of context, the above has the appearance of a direction being sought in accordance with s 12 of the Jury Directions Act. However, no such direction was actually sought until after the prosecutor's closing address had concluded. This did not come close to meeting the requirements of s 12 of the Jury Directions Act.
17 Several observations may be made about the text now sought to be the subject of a direction:
(a) The references to the notice of the prosecution case in brackets at the end of the last sentence cannot be reasonably read as being any more than the source for the description of the result described, and cannot fairly be read as enlarging the scope of the direction sought. In any event, referring to particular paragraphs of another document does not meet the obligation in s 12 of the Jury Directions Act.
(b) The text is itself at best unclear, especially as it refers to "purpose" to describe the content of the intention in the context of the offence provision for charges 1-3 relying upon effect, while only the remaining charges 4-5 and 6-8 refer to "purpose".
(c) If a direction of greater detail or granularity was sought than indicated by those words, in the context of the competition cases referred to, there needed to be clarity about that. Neither the prosecutor nor the Court should have to divine what else might have been being referred to as forming part of any direction sought to be given, especially in the absence of this being made clear prior to the commencement of the prosecutor's closing submissions. It was, at best, ambiguous. It had the practical effect of hiding from me, and from the prosecutor, the direction on common law attempt that would ultimately only be overtly sought after the prosecutor's closing address had concluded.
(d) The closing submissions for Mr Hogan on the second element of intention, and referring to "nine selected goods", and to "nine selected products" go beyond the text of what is now suggested to be a direction that should be given.
18 I was reluctantly satisfied that, in accordance with s 16, and with the ethical concession made by the prosecutor, a direction as to specific intent at common law was required, despite the defective process of seeking it, which was clearly contrary to the intention of s 12 of the Jury Directions Act. I therefore gave a written direction to the jury, repeated orally as follows:
The prosecutor must prove beyond reasonable doubt that Country Care Company intended to bring about the result or consequence of inducing Country Care Group members as defined to make an arrangement or arrive at an understanding which would have the likely effect of maintaining the price of tender goods.
19 Addresses should, so far as humanly possible, always be conducted by reference to the directions to be given to the jury, not directions given by reference to the addresses already made. In my view, trial judges in future criminal cartel cases will need to be astute to ensure that closing addresses do not commence until the directions to be given to the jury have been finalised, especially as to the elements of the alleged offences. This may require the jury being sent away for a prolonged period of time until this has been finalised, a process that I was told routinely takes place in the Victorian courts. Indeed, because of the likelihood of such a delay being necessary, it would be highly desirable for the directions to be given to the jury about at least the bare elements of the offences in the indictment be the subject of any legal argument and settled before the trial commences, to the extent that is possible.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Ruling of the Honourable Justice Bromwich.