R v Bigatton

District Court of NSW|2023-08-02

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Kings Law Group (Accused) File Number(s): 2020/293887

Introduction

HIS HONOUR: The Accused has been arraigned and pleaded not guilty on an indictment filed in this Court on 4 April 2023. His trial was scheduled to commence on Monday of this week (31 July 2023) with an estimate of 8 weeks.
The indictment alleges one contravention of s 601ED(5) of the Corporations Act 2001 (Count 1) and one contravention of s 911B(1) of the Corporations Act 2001 (Count 2). The prospect of the hearing commencing any time soon is an illusion as I am dealing with what seems to be a never-ending series of separate and distinct pretrial applications.
By one of those applications, the accused has sought an order that Count 2 of the indictment be quashed.
In the alternative, the Accused seeks an order that the Crown particularise for the purposes of Count 2: 1. The identity of the persons on behalf of whom it is alleged that the Accused provided financial product advice; and 2. The relevant Act (recommendation, statement of opinion or report of either) relied upon as constituting the offence.
These reasons deal with that application.

Jurisdiction

The parties are agreed that I have power to make the orders sought, that is, quash in whole or in part an indictment.
I am satisfied, not just because of that concession but because of the provisions of s 17 in Chapter 2 Part 1 of the Criminal Procedure Act 1986 wherein there is to be found a procedure with temporal and other limitations in relation to applications to quash indictments.
Section 17 is in the following terms: 17 When formal objections to be taken (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended, and in that case, the trial is to proceed as if there had been no defect.
It seems clear enough to me that implicit in those provisions is that this Court has power to do the very thing about which that provision is directed. In other words, it is implicit from the fact that the legislature has made provisions as to how a power is to be exercised, that the power exists.

The Indictment

The form of Count 2 of the indictment is as follows (with my emphasis added): Between about 14 August 2017 and 18 January 2018 at Sydney in the State of New South Wales and elsewhere did provide a financial service, namely providing financial product advice, on behalf of another person who carried on a financial services business, namely the proprietors of BitConnect lending platform without satisfying the conditions in subsection 911B(1)(a)-(d) of the Corporations Act 2001 (Cth) contrary to sections 911B(1) and 1311(1) of the Corporations Act 2001 (Cth).

The Legislation

In order to understand the Accused's argument, it is necessary to set out the relevant legislative framework. Unless otherwise indicated all references are to the Corporations Act 2001 as in force between 14 August 2017 and 18 January 2018.
Section 911B(1) provides: A person (the provider) must only provide a financial service in this jurisdiction on behalf of another person (the principal) who carries on a financial services business if one or more of the following paragraphs apply.
So, it can be seen that the indictment picks up with some particularity the precise wording of section 911B(1).
It is important to appreciate that the phrase "a financial service" in s 911B(1) is a defined phrase and is given meaning by s 766A(1) which provides in part (again my emphasis added): … A person provides a financial service if they: (a) provide financial product advice (see s 766B) or …
There are also a further five defined matters which can constitute "a financial service". Count 2 of the indictment is directed to the provision of "financial product advice".
As has become standard in the drafting of Commonwealth legislation in recent years, the definition in s 766A(1) directs one to yet another definition, this time for the meaning of "financial product advice". That phrase is defined in s 766B(1) as follows (my emphasis): For the purpose of this chapter financial product advice means a recommendation, or a statement of opinion or a report or either of those things that: a. is intended to influence a person or persons in making a decision in relation to a particular financial product or class of financial products or an interest in a particular financial product or class of financial products or b. could reasonably be regarded as being intended to have such an influence.
The definition in s 766B(1) is then qualified by subsections 766B 1A and 1B which exempt certain documents or statements from the provision of financial advice.
An "exempt document" or statement is then defined in s 766B(9).
In what I consider plain English what is prohibited is the provision of an opinion or recommendation about a financial product by a person on behalf of another, if that other person is carrying on a financial services business, unless that other person has a relevant licence and the person giving the advice is an authorised representative of that person.
To complete the journey created by the Act, s1311 creates a criminal offence if the prohibition in s 911B(1) is breached.

The Accused's submissions

At the heart of the Accused's submissions is that Count 2 of the indictment does not disclose an offence known to law because it is not the provision of a "financial service" that is the prohibited conduct breach of which engages s 1311(1); rather, because of the use of the cascading definitions, the only breach of the criminal law identifiable in the circumstances disclosed on the face of the indictment is the provision of "financial product advice" as defined by s 766B, which according to the Accused, is something that can only happen in singular or granular components. The Accused relies particularly on what the High Court said in Johnson v Miller (1937) 59 CLR at p 483. The Accused's submission is that on each and every occasion that a recommendation or a statement of opinion or report is identified, it is that conduct which is prohibited by s 911B(1). The Accused submits that this is a circumstance where a person cannot be charged with a course of conduct being a series of impugned statements made over a period of time.
There are a number of levels to the Accused's argument. First, as I have explained, it is contended that each and every time a person provides an opinion or recommendation that is caught by the definition of s 766B(1) that occasions a breach of s 911B but via the portal of s 766A This means that each and every occasions constitutes its own offence, which can only be the subject of an individual count on indictment. A second way it is put, or perhaps a different way of putting the primary argument is that to seek to roll together a series of such statements offends the "rule against duplicity" because, any indictment framed in that way does not disclose with sufficient clarity precisely what it is that an accused has been charged with and therefore creates serious practical difficulties. It is said that these difficulties include, assessing at the conclusion of a trial, what it is that an accused may have been either convicted or acquitted of which will present challenges for a sentencing judge in the context of a conviction, in that the judge will then have to work out for him or herself precisely the series of events that have been found by a jury to constitute a breach of the law. It is also suggested that for the purpose of assessing "double jeopardy" pleas in the future this lack of clarity will be problematic.
The third and distinct basis upon which the Accused puts the argument focuses on the person (S) described in section 911B as the 'principal'. In this regard, the indictment does not identify who that principal is other than by reference to the "proprietors of the BitConnect lending platform".
It is however common ground that the Crown has provided particulars of who it contends those proprietors are, that being a list of four natural or corporate people. Notwithstanding those particulars, the accused contends that the indictment remains bad because, so the submission goes, it is not possible as a matter of law for there to be more than one principal in relation the giving of any particular opinion or recommendation.

The Crown submissions

In response, the Crown contends that the Accused construction of the statutory provisions is far too narrow. It is the Crown's submission that, as a matter of statutory construction, to provide a financial service can be done a number of ways. The Crown relies on "providing financial product advice" as the means by which a financial service was provided in this matter.
When it comes to considering the terms of ss 766B, 766A(1) and 911B(1) as a legislative package it is important, so the Crown says, to distinguish between language which confines the offence to a single act, and an offence which contemplates or permits numerous acts or a course of criminal conduct. It relies on cases such as Walsh v Tattersall (1996) 188 CLR 77; R v Gian (1999) 104 A Crim R 416 (NSW CCA); R v Moussad (1999) 152 FLR 373 (NSW CCA).
The Crown says, relying in particular on R v Moussad that where there are a number of discrete acts of a similar nature committed with a common purpose and which are connected in the sense of being performed in an ongoing course of similar conduct, they can fairly be regarded as forming part of the same criminal enterprise and are therefore not duplicitous.
The Crown contends that the "gist and flavour" of the offence is the course of conduct of providing such a service and that the better view, as a matter of statutory construction, is that it is not intended to operate as a prohibition focused on each statement or action made in the course of providing the financial services on behalf of another person.
The Crown relies on Montgomery v Stewart (1967) 116 CLR 220. In that case Barwick CJ at page 224 identified the true ratio of Johnson v Miller (which case is relied upon heavily by the accused): "Reliance was placed by the appellant upon the decision of this Court in Johnson v Miller as supporting the view that because of the exculpating provision only one statement could be made the basis of an information under section 43. Properly understood that case, in my opinion, lends no support to such a submission. The majority of the Court there decided that as the prosecution at the hearing of the information persisted in refusing to give any particulars of a person said to have been seen coming from the licensed premises, the magistrate was justified in dismissing the information. The majority accepted the view which was fundamental to its decision that upon its true construction s 209 of the Licensing Act 1932 - 1935 (SA) created a separate offence in respect of each person who was seen coming out of the licensed premises, unless perhaps a number of persons, acting in combination are seen to be coming out of the premises at the same time. On this footing it was said that unless the occasion the subject of the charge was identified, the information was defective."

What is the legal test?

As can be seen from the above passage Johnson v Miller was a charge brought under the Liquor Licensing Act 1977 (South Australia) concerning the proof of persons said to have been coming and going from licensed premises.
Montgomery v Stewart on the other hand was a charge concerning a prospectus which contained within it a number of statements which were said to be misleading. The submission had been made in Montgomery v Stewart that Johnson v Miller meant that instead of a charge identifying the prospectus as contravening the law, there should instead have been a series of separate and distinct charges identifying or based on specific alleged misleading statements within the prospectus.
It was that proposition that was rejected by Barwick CJ (Kitto, Taylor, Menzies & Windeyer JJ agreeing or not disagreeing) in Montgomery v Stewart.
As Barwick CJ explained, the result in Johnson v Miller was the consequence of the proper construction of the relevant licensing legislation before the Court in that case.
This question of law involving identifying when a series of events can or cannot be rolled together without being duplicitous is, it would seem, bedevilled with the difficulty of identifying the actual legal test to be applied. Each case that deals with the question deals with the problem by reference to a specific state of affairs thrown up by the particular indictment and the particular criminal law sought to be engaged by the indictment.
As long ago as 1972, the House of Lords in Director of Public Prosecutions v Merriman [1973] AC 584 when dealing with the rule against duplicity grappled with where the line is to be drawn and precisely what the distinction is.
Lord Morris of Borth-y-Gest said as follows: "The question arises - what is the offence? If A attacks B and in doing so stabs B five times with a knife has A committed one offence or five?… In many different situations comparable questions could be asked. In my view such questions when they arise are best understood by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down …. When Lord Widgery CJ said that it will often be legitimate to bring a single charge in respect of what might be called one activity even though the activity may involve more than one act. It must of course depend upon the circumstances. In the present case…"
His Lordship then referred with approval to what had been said by the Court of Criminal Appeal in New South Wales in R v Fenwick (1953) 54 SR (NSW) 147 where Street CJ said at 152: "Indictments are to be read jointly and severally and this indictment is as is the common practice in indictments in cases of murder, although framed against two accused to be regarded as a joint and several indictment of those accused"
In Merriman, Lord Diplock at 607 said this: "The rule against duplicity, viz that only one offence should be charged in any account of an indictment … has always been applied in a practical, rather than in a strictly analytical way for the purpose of determining what constitutes one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of the commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transactional criminal enterprise, it was the practice as early as the 18th century to charge them in a single count of an indictment …"
Again, Diplock LJ cited with approval what the New South Wales Court of Criminal Appeal had said in R v Fenwick.
In 2001 this question came before the High Court in Cheung v R (2001) 209 CLR 1, [2001] HCA 67.
In that case, the plurality comprising Gleeson CJ, Gummow and Hayne JJ at [4] and [5] said: "When an accused person is tried upon indictment before a judge and jury, the role of the jury is to decide whether the accused is guilty or not guilty of the charge or charges laid in the indictment. That involves determining the issue or issues joined between the prosecution and the accused. Such issue or issues are defined by the terms of the indictment and by the plea. If the accused is found guilty, then it is responsibility of the judge to determine the appropriate sentence. That will normally involve a discretionary decision subject to any statutory constraints such as a specified maximum penalty. The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If and insofar as the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for a decision by verdict. In such an event the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace."
In Walsh v Tattersall (1996) 188 CLR 77, commencing at around 107, Kirby J sought to explain what is described as the rule against duplicity. After referring to Johnson v Miller, Merryman and also S v The Queen (1989) 168 CLR 266. His Honour sought to provide an explanation as to the doctrine (if that is what it is) in the following way at [6]: "Particular problems arose for the application of the duplicity rule in the case of offences which of their definition were constituted by continuous activity, such offences as keeping a brothel required proof of particular acts at different times. Similarly, conduct which need not but in some circumstances might be constituted by activity over time could quite properly be charged in a single count … Various verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space to "fairly and properly be identified as part of the same criminal enterprise or the one criminal activity". These valiant attempts by judges have been criticised as "glib". Judges themselves have acknowledged the judicial views in particular cases are not always easy to reconcile. Ultimately what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which taken individually could constitute separate offences. The indicia include (a) the connection of the events and point in time, (b) the similarity of the acts, (c) the physical proximity of the place where the events happened and (d) the intention of the accused throughout the conduct…."
At [7], his Honour said: "Because of the foregoing, it must be accepted as correct that the courts have never managed to produce a technical verbal formula of a precise application which constitutes an easy guide… as to whether the common law rule [against duplicity] has been infringed… Not a great deal of help is given to decisions in a particular case by saying that the test is to look at the "gist of the offence" nor is much help afforded by saying that the test is whether multiple acts can "fairly and properly be identified as part of the same criminal act enterprise activity. With respect, it is not very useful to say that it is "desirable" or "preferable" where separate offences are arguably shown that the prosecution should formulate separate charges. Unless courts are prepared to support such homilies with sanctions in the case of breach, they are unlikely to much influence day-to-day prosecution practice… Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature.
The position can it seems to me be distilled as follows. There is high judicial authority for the following propositions as to the test to be applied so as to decide whether a series of offences which might otherwise be capable of constituting a series of single offences can be rolled together into an alleged course of conduct which constitutes but one overarching offence. Barwick CJ suggested the question is to be resolved always by an exercise of statutory construction. Morris LJ suggested such questions are best answered by applying common sense by determining what is fair in the circumstance and that no precise formula can usefully be laid down. Diplock LJ suggested that the question is to be answered in a practical, rather than in a strictly analytical way, and that where a number of acts of a similar nature committed by one or more defendants were connected with one with another in the time and place of their commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise. Kirby J has suggested that it appears impossible to articulate a satisfactory formula for what is the test and that ultimately the question is one of fact and degree for decision in each case (which I would interpolate would appear to involve evaluative judgements about which different reasonable minds could reasonably come to different conclusions). Kirby J did however identify various indicia which ought be taken into account when making such a judgment.
Thus, it falls to me to determine by application of any or all of the above principles what is the answer to the question in this case.
Even after Kirby J's attempt to articulate a test culminating in his statement that it is "a matter of fact and degree for decision in each case", I find myself baffled as to what is the legal criteria to be applied to the facts of any particular case, let alone this particular case. What occurred repeatedly in submissions is that both counsel for the Accused and the Crown articulated the conclusion they wished me to reach by reference to one of the many catchphrases found in the cases. For example, both urged me to resolve the matter by reference to a process of statutory construction. How one can construe the Corporations Act to determine how Parliament intended an indictment to be drawn if there is alleged to be a contravention of s 911B(1) escapes me. The Crown also brands the facts of this matter as "a number of discrete acts of a similar nature committed with a common purpose and which are connected in the sense of being performed in an ongoing course of similar conduct" or that the "gist and flavour of the offence is the course of conduct".
Each of those submissions is of course no more than a statement of the conclusion I should reach without any explanation as to why I should reach such a conclusion. Exactly the same can be said about the way the Accused puts the matter which ultimately boils down to, in this circumstance, that I should conclude that the rolled-up approach contained in the indictment is bad as a matter of law because of the fact that the statements were made to different people at different times over a period of nearly six months.
None of this is intended to be any criticism of counsel. I think it does no more than identify that the topic is extraordinarily difficult and perhaps is one that can only be decided on a case-by-case basis, without reference to any particular legal principle.
There is another problem with seeking to identify a strict legal principle, and that is, it seems to be accepted by all that there are quite a few what are described as "commonly accepted" exceptions to the rule. Again, that seems to suggest that there actually is not a strict rule at all and perhaps the best view is as articulated by Morris LJ in Merriman by deciding what is fair in the circumstances as inelegant a concept that is for what is apparently the foundation of a very important legal doctrine.
Another question which arose out of the cases and became evident during the course of argument is that on the one hand, it seems to be suggested by high authority that the question of whether an indictment ought be quashed or not must be decided by considering the indictment and only the indictment without reference to any extrinsic material so as to understand the nature of the case being propounded by the prosecution. This was the submission made by the Accused when argument commenced before me. However, very quickly the matter developed into extensive discussion based on material beyond the indictment, in particular the amended Crown's case statement dated 11 March 2022 (Exhibit E) and the elements of the offence suggested by the Crown in written submissions. A review of the cases and in particular Justice Kirby's conclusion that it may be a question of fact and degree for decision in each case, and Morris LJ's approach to the effect that a common sense analysis of what is fair in the circumstances, together with a review of all of the leading cases in the area, makes it clear that it is simply wrong to approach the matter by reference to the indictment alone, and that one must form views as to the nature of the case and the facts and circumstances that will be in play before the jury by reference to material beyond the indictment.
I propose to try and resolve the question by reference to a composite of each of the legal tests which I have identified, because they each seem to me to inform the other. Ultimately, it would be of assistance if there was direct authority dealing with indictments arising out of these particular provisions of the Corporations Act.
There is no authority that either party has been able to identify directly on the point in relation to the particular provisions of the Corporations Act under consideration in the context of the framing of an indictment.
The Crown has however identified two examples where courts exercising civil jurisdiction have made declarations of contraventions of s 911B(1) which, when one reads the reasons are most certainly based on a course of conduct and are consistent with the way the Crown puts its case. Those are the decision of Heerey J in Australian Securities and Investments Commission v Oxford Investments (Tasmania) Pty Ltd [2008] FCA 980 and Australian Securities and Investments Commission v Monarch FX Group Pty Ltd [2014] FCA 1387, a decision of Gordon J when her Honour was a member of the Federal Court.
I have carefully read the orders and reasons in both those cases. Whilst it is true that the Court on each occasion did proceed upon the basis contended before me by the Crown, it is equally clear that the point was not taken, argued and potentially not considered at all by the Court. There is certainly no authoritative statement other than what is implicit from the orders actually made that helps me determine the question at hand.
Nonetheless, the decisions are both of experienced and extremely well-regarded senior judges, in amongst other areas the field of company law. The fact that they proceeded upon the basis they both did, even if the point was not taken is in my view supportive of the Crown's submission in this case. Whilst I do not consider either decision to be binding authority, I do give them some weight.

Resolution

I firstly deal with the question of statutory construction.
As always, in questions of statutory construction, but in particular, on questions of statutory construction which involve what I describe as cascading definition provisions, it is difficult.
Moreover, I do think the process is somewhat artificial because it assumes that buried somewhere in these provisions of the Corporations Act is to be found a statutory construction as to how a prosecutor is to frame an indictment brought pursuant to s 1311 based on a breach of the prohibition contained in s 911B. It is to be remembered that that prohibition also forms part of the civil law and is intended to act generally as a prohibition. To my mind, it is highly unlikely that Parliament intended when creating those provisions to direct a prosecutor in criminal proceedings such as these as to how the indictment should be drawn.
That having all been said, I accept the Crown's submission that it is a breach of the prohibition in s 911B(1)) which when read in conjunction with s 766A(1)) and relevant to this case s 766B, suggests (as much as it can) that it is permissible for the Crown to rely on a course of conduct over a specified closed period of time which may involve multiple examples of the provision of financial product advice. As I have said, I am influenced by the approach taken by Heerey J in Oxford Investments and Monarch but not to the point that I regard myself as bound to follow them. The fact that each occasion might have been capable of separate charge is not determinative.
Nor am I persuaded by the Accused's second line of argument to the effect that, properly construed, s 766B prohibits a course of conduct type case, being conducted because it is so clearly drafted in the singular.
As I pointed out in argument s 23 of the Acts Interpretation Act 1901 provides that statutory provisions in the singular ought be read in the plural and vice versa, unless the contrary intention can be identified, either expressly or as a matter of construction, from the statute.
There is nothing in the statute expressly which contradicts the Acts Interpretation Act. By implication the Accused points to s 761F and s 761FA to demonstrate that the legislation has gone out of its way to identify that groups of people (both natural and otherwise) operating as partnerships or trusts can be a principal for the purpose of the provision.
The Accused relies upon what is said to be a drafting distinction between the various definitions found within Div 4 of Ch 7 of the Corporations Act, in particular, the definition of meaning of "dealing" in s 766(C) and the definition of "makes a market for a financial product" in s 766D and the definition of "provide a custodial or depository service" in s 766E. The Accused's point is that some definitions within the same part are clearly drafted using the singular, whereas others are drafted in a way that makes it clear that the intention is to capture more than one person. The submission is that I should infer a contrary intention to that commanded by the Acts Interpretation Act because of those different drafting styles. This submission has merit; however, I think on balance the different methods of drafting can be explained by the different concepts being defined and I do not think the use of pleural in other defined terms demands that I read s 766B in its strict grammatical sense.
Whilst the Accused pointed to a number of other matters which it was suggested would mean that the Act should be construed as engaging only with singular pieces of conduct, they were extraneous to the Act. Mostly to do with what was said to be the unfortunate, undesirable or inconvenient consequences of what was described as "duplicity" to the effect that if a series of alleged pieces of financial advice are identified in criminal proceedings, but not the subject of separate counts, and if there is only one count resting on s 911B(1), and if a jury was to return a verdict of guilty or acquittal, then inconvenient consequences might flow, the first being the difficulty a sentencing judge might have in identifying precisely what it is factually that the accused has been convicted of and another being the difficulties that may be encountered with "double jeopardy" type arguments if later separate charges are brought. I was initially attracted to these arguments but as the Crown pointed out, those sort of difficulties come up regularly in the criminal context, in particular, in manslaughter type charges, and if that be a consequence of the proper construction of the legislation so be it. This was the point being dealt with by the High Court in Cheung at [4] and [5] to which I have referred. It also needs to be remembered that these provisions must carry the same meaning whether or not one is considering a criminal charge as I am here, or civil proceedings as occur regularly. In any event, the consequences identified by the Accused are extraneous to the statute. As a matter of construction, they are not so absurd or unexpected to compel a departure from the conclusion I have reached. I can find nothing in the statute that demands the strict and singular grammatical reading of s 766B that are necessary for the Accused's submission to be accepted.
So far, I have sought to answer the question by a process of statutory construction alone. By that route, I have come to the conclusion that the indictment does disclose on its face a criminal offence known to the law. If I then add to my analysis the various approaches suggested by Morris LJ and Diplock LJ in Merriman, and Kirby J in Walsh v Tattersall by applying some common sense and considering what I think is fair in the circumstances, or taking a practical rather than a strictly analytic analytical approach, or by evaluating the situation as a question of fact and degree as suggested by Kirby J in Walsh v Tattersall, my conclusion is reinforced. I certainly think as a matter of common sense that there is nothing unfair in allowing the Crown to proceed on the indictment in the circumstances, because in a practical sense, there is no substance behind the legal argument put by the Accused. This is because the vice identified in the indictment by the Accused can easily be cured by the Crown by inserting into the indictment the particulars which have already been provided to the accused. So, it can be seen that the indictment clearly fulfils what is at least one of its very important functions, that is, it allows the Accused to understand the case put against him so as to give him a proper opportunity to answer it.
I accept that there is a temporal and geographic gap between the statements relied on. These are two of the indicia identified by Kirby J. These circumstances do support the Accused's argument but to my mind are not determinative. In my judgment, taking all of the circumstances, as I understand them to be, into account, there is identifiable here a series of discrete acts of a similar nature which are connect and can sensibly described as part of a single course of conduct
The Accused's next argument relies on the same or a similar grammatical argument to make the submission that it is not open as a matter of law to identify more than one person who is the principal for the purpose of s 911B(1).
Again, this is because of the phrase "on behalf of another person" as used in section 911B(1). For similar reasons to the Accused's previous argument, I reject that submission.
It seems to me that the only sensible reading of the legislation is that the "other person" who is identified as the principal can be one person, or it can be more than one person working together in concert in some way, or perhaps it can be a combination of both. Again, I don't think there is anything unfair about the way the Crown is presenting the case.
I am not particularly impressed with the framing of an indictment that refers to the principals for the purpose of the legislation, as "the proprietors of the BitConnect lending platform". That is because, as I pointed out in argument, the BitConnect lending platform is not a legal entity nor a piece of property. As far as I can tell, rather, it is some sort of scheme set up, so as to induce people to invest money for particular purposes. I find it difficult to understand how one could be a proprietor of such a thing.
Nonetheless, the Crown has provided particulars of four people which it identifies as the actual principals and I think the descriptor that they are the proprietors of the BitConnect lending platform is no more than a description which, does not mean that Count 2 of the indictment does not disclose a breach of the criminal law. Again, taking a practical approach and assessing what is fair and reasonable, my conclusion as to the better construction of the statute is reinforced and I am not satisfied that the identified flaw in the indictment has been made out.
The Accused's final point initially described, I would suggest rather bravely by counsel for the Accused as "not my strongest point" or "this doesn't have much weight" was that each statement, recommendation or report the subject of the charge, needs to be the subject of its own separate account. In other words, so the argument would go, if for example, at a public presentation a person made a speech in which it could be identified there was contained one opinion and two recommendations, and following the speech handed out a report containing perhaps similar or perhaps different opinions and recommendations, then every single one of those opinions, recommendations and reports would constitute its own separate and distinct breach of the law and thus, so the submission goes, would need to be the subject of a separate count in an indictment.
The submission ultimately was abandoned as it should have been. It really was a subsidiary of the primary submission to the effect that each occasion that there is a provision of "financial product advice" constitutes its own stand-alone breach of the criminal law requiring a separate count, although this version of the argument took it to the realms of absurdity.
For those reasons I have decided to refuse the Accused's application to quash Count 2 of the indictment.

Particulars

That then leaves the question of particulars.
Regardless of the form of the indictment, it is extremely important that the Accused has every opportunity to answer the factual and legal case made against him.
As far as the factual case is concerned, I will require the Crown to provide as fulsome particulars as are available to them of the instances of provision of financial advice alleged to contravene s 766B, which it will seek to prove.
When providing those particulars, the Crown should identify whether it is the particular is said to be a recommendation or statement of opinion or a report or perhaps a combination of those things.
Particulars have already been provided as to who the Crown contends are the principal or principals for the purpose of s 911B. I will consider any other request by the Accused for the provision of particulars in relation to not only Count 2 but also Count 1.

Proposed Amendment to the Indictment

Before leaving the matter, the following point came up during the course of argument, albeit it was not part of the Accused's submissions. It was observed that the indictment refers to s 911B(1)(a) - (d) of the Corporations Act being the conditions not satisfied. In fact, there are five such conditions. I do not think it is necessary for me to make any order because the Crown indicated that it would seek to amend the indictment so it will read: "Without satisfying the conditions in subsections 911B(1)(a) - (e) of the Corporations Act 2001.:."
Such an amendment, if sought, ought to be allowed.

Conclusion

In conclusion, I dismiss the Accused's application to quash Count 2 of the indictment dated 4 April 2023.
I will hear the parties as to appropriate directions as to the provision of particulars in accordance with these reasons or otherwise.

Amendments 17 May 2024 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2024

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