Bigatton v R [2024] NSWCCA 23

Bigatton v R [2024] NSWCCA 23

Leave to appeal is granted but the appeal dismissed. The Corporations Act, properly construed, permits the principal in s 911B(1) to comprise multiple persons acting together; referring to them as 'proprietors' of the platform is not void for uncertainty where particulars are provided; the indictment is incomplete for omission of s 911B(1)(e) but not void, as amendment is permissible and the court retains jurisdiction; the Crown's particularisation of multiple instances and potential principals does not amount to abuse of process or oppression given the clarity provided and proper directions at trial.

Jurisdiction
Australia
Judgment Date
23 February 2024
Procedural Posture
Criminal Appeal / Leave to Appeal and Determination of Appeal
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
['indictment' 'contravention of Corporations Act' 'financial Product Advice' 'particularisation' 'duplicity' 'abuse of Process' 'amendment of Indictment']
['criminal Law' 'corporate Crime'] ['indictment' 'contravention of Corporations Act' 'financial Product Advice' 'particularisation' 'duplicity' 'abuse of Process' 'amendment of Indictment']

Case Brief

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Procedural Posture

Criminal Appeal / Leave to Appeal and Determination of Appeal

Legal Issues

  1. 1 ['Whether the identification of multiple principals failed to allege an offence known to law' 'Whether the identification of multiple principals contravened the rule against duplicity' 'Whether the identity of the principal must be pleaded to avoid uncertainty' 'Whether the number of potential principals and instances of advice was an abuse of process' 'Whether omission of s 911B(1)(e) from the indictment fails to aver an offence known to law']

Ratio Decidendi

Leave to appeal is granted but the appeal dismissed. The Corporations Act, properly construed, permits the principal in s 911B(1) to comprise multiple persons acting together; referring to them as 'proprietors' of the platform is not void for uncertainty where particulars are provided; the indictment is incomplete for omission of s 911B(1)(e) but not void, as amendment is permissible and the court retains jurisdiction; the Crown's particularisation of multiple instances and potential principals does not amount to abuse of process or oppression given the clarity provided and proper directions at trial.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

  • ['Leave to appeal granted' 'Appeal dismissed']