Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 4 - examination orders) [2021] FCA 1237

Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 4 - examination orders) [2021] FCA 1237

The Court made the directions because the s 23CQ(1) preconditions were satisfied for the four ACCC officers who had not been examined at committal, and because inadequate or late disclosure, the identified legitimate forensic purpose, and the risk of unfairness made it contrary to the interests of justice to proceed without their examination. Although Mr Taylor had been examined at committal and s 23CQ(1)(c) was not strictly satisfied, the Court had express and implied power to order a further examination to avoid unfairness, particularly because relevant material had been disclosed or obtained only after his committal examination.

Jurisdiction
Australia
Judgment Date
12 October 2021
Procedural Posture
Federal Criminal Prosecution Relating to Offences Against the Competition and Consumer Act 2010 (cth) / Pre Trial Interlocutory Applications for Directions for Examination of Witnesses, Determined on the Papers
Outcome
Applications granted; directions made for the examination of five witnesses before the Court.
Legal Topics
['pre Trial Examination of Witnesses' 'basha Inquiry' 'committal Proceedings' 'prosecutorial Disclosure' 'fair Trial' 'implied Powers of the Court']
['criminal Law' 'practice and Procedure' 'federal Crime and Related Proceedings'] ['pre Trial Examination of Witnesses' 'basha Inquiry' 'committal Proceedings' 'prosecutorial Disclosure' 'fair Trial' 'implied Powers of the Court']

Case Brief

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Procedural Posture

Federal Criminal Prosecution Relating to Offences Against the Competition and Consumer Act 2010 (cth) / Pre Trial Interlocutory Applications for Directions for Examination of Witnesses, Determined on the Papers

Legal Issues

  1. 1 ['Whether four ACCC officers who were not examined during committal proceedings should be directed under s 23CQ of the Federal Court of Australia Act 1976 (Cth) to appear for examination before the Court.' 'Whether Mr Michael Taylor, who had been examined during committal proceedings, could nevertheless be directed to appear for further examination before the Court.' 'Whether proceeding to trial without the proposed examinations would be contrary to the interests of justice or create a serious risk of an unfair trial.']

Ratio Decidendi

The Court made the directions because the s 23CQ(1) preconditions were satisfied for the four ACCC officers who had not been examined at committal, and because inadequate or late disclosure, the identified legitimate forensic purpose, and the risk of unfairness made it contrary to the interests of justice to proceed without their examination. Although Mr Taylor had been examined at committal and s 23CQ(1)(c) was not strictly satisfied, the Court had express and implied power to order a further examination to avoid unfairness, particularly because relevant material had been disclosed or obtained only after his committal examination.

Court Disposition

Applications granted; directions made for the examination of five witnesses before the Court.

Orders

  • ['A direction be made pursuant to s 23CQ(1) of the Federal Court of Australia Act 1976 (Cth) that Ms Zoe Lonard, Mr Jack Ducommun, Mr Dean Cohen and Mr Robert Ghali appear for examination before the Court, on a date to be fixed, in relation to the topics identified in the annexure to the interlocutory application...