R v Bigatton (No 3) [2023] NSWDC 291

R v Bigatton (No 3) [2023] NSWDC 291

Count 2 was not bad on its face and was not shown to be duplicitous. Properly construed, s 911B(1), read with ss 766A(1), 766B and 1311(1) of the Corporations Act 2001 (Cth), permitted the Crown to allege a course of conduct over a specified closed period involving multiple examples of providing financial product advice. The singular drafting of s 766B and the phrase 'on behalf of another person' did not require each statement, recommendation or report, or each principal, to be charged separately, particularly in light of s 23 of the Acts Interpretation Act 1901 (Cth). Taking a practical and fairness-based approach to the rule against duplicity, the alleged acts were sufficiently similar...

Jurisdiction
Australia
Judgment Date
04 August 2023
Procedural Posture
Criminal / Pre Trial Application to Quash Count 2 of the Indictment Dated 4 April 2023, or Alternatively for Particulars
Outcome
Accused's application to quash Count 2 of the indictment dated 4 April 2023 dismissed.
Legal Topics
['financial Services' 'financial Product Advice' 'application to Quash Indictment' 'rule Against Duplicity' 'particulars' 'statutory Construction']
['criminal Law' 'corporations Law' 'financial Services Regulation' 'criminal Procedure'] ['financial Services' 'financial Product Advice' 'application to Quash Indictment' 'rule Against Duplicity' 'particulars' 'statutory Construction']

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Procedural Posture

Criminal / Pre Trial Application to Quash Count 2 of the Indictment Dated 4 April 2023, or Alternatively for Particulars

Legal Issues

  1. 1 ['Whether Count 2 of the indictment disclosed an offence known to law under ss 911B(1) and 1311(1) of the Corporations Act 2001 (Cth).' 'Whether Count 2 was bad for duplicity because it alleged a course of conduct involving multiple instances of financial product advice over a period of time.' 'Whether s 911B(1) permitted the Crown to allege more than one principal on whose behalf the accused provided the financial service.' 'Whether the Crown should provide particulars of the alleged instances of financial product advice and the relevant principal or principals.']

Ratio Decidendi

Count 2 was not bad on its face and was not shown to be duplicitous. Properly construed, s 911B(1), read with ss 766A(1), 766B and 1311(1) of the Corporations Act 2001 (Cth), permitted the Crown to allege a course of conduct over a specified closed period involving multiple examples of providing financial product advice. The singular drafting of s 766B and the phrase 'on behalf of another person' did not require each statement, recommendation or report, or each principal, to be charged separately, particularly in light of s 23 of the Acts Interpretation Act 1901 (Cth). Taking a practical and fairness-based approach to the rule against duplicity, the alleged acts were sufficiently similar...

Court Disposition

Accused's application to quash Count 2 of the indictment dated 4 April 2023 dismissed.

Orders

  • ["The Accused's application to quash Count 2 of the indictment dated 4 April 2023 is dismissed." 'The Court will hear the parties as to appropriate directions for the provision of particulars in accordance with the reasons or otherwise.']