ANZ defence threatens to quash indictment in drawn-out cartel case

ANZ’s defence lawyer Tim Game SC has threatened to quash the public prosecution’s indictment against the bank and its senior executive Richard Moscati, in the latest setback in the landmark criminal lawsuit over alleged cartel activity.

Tim Game, SC, of Forbes Chambers, is acting on behalf of ANZ.Credit: Peter Rae

ANZ, Citi and Deutsche Bank AG and six individual bankers stand accused of breaching anti-cartel laws by hatching a plan to offload $791 million of ANZ’s shares after a botched capital raise in 2015. The bankers and banks deny this and will defend the matters.

After pressure from Justice Michael Wigney last December, the Commonwealth Director of Public Prosecutions filed an indictment this month that outlined 42 charges against the banks and bankers, excluding JPMorgan who was also working as an investment banker on the capital raise but was granted whistleblower immunity.

The indictment is the legal document that formally charges the parties, officially kickstarts the criminal proceedings and will be seen by a jury once the matter reaches trial in April 2022.

Mr Game was among the defence barristers who called for the indictment to be withdrawn in the Federal Court in Sydney on Monday, claiming the 17-page document was “not valid”.

“We’ve been arguing about this for two-and-a-half years but now it’s crunch time,” Mr Game said. “It’s [the indictment] no use to anybody.”

Peter Wood, acting for former Deutsche Bank executive Michael Richardson, similarly criticised the indictment claiming it “lacks particularity and is almost incomprehensible in substance”.

“We see the defects in this indictment are so fundamental and so many, that they should be dealt with as soon as possible,” Mr Wood said.

The defence will file submissions detailing the alleged problems with the indictment in court next month. If it is quashed, the CDPP would be forced to rewrite and refile a new document with specific details about the alleged charges, in what would be yet another setback in an already drawn-out case.

The CDPP also told the court it planned to call an expert to assist the jury with the technical aspects of the case, but flagged this too could cause delays. “Realistically, in this matter, it’s unlikely anything would be agreed. But it would be ideal for one expert,” Jennifer Single SC said.

Justice Wigney slammed all parties for delays at a case management hearing in December, calling for the banks and prosecutor to “get the ball moving” as the charges had been “hanging over” the heads of the organisations and individuals for an “intolerable” amount of time.

A former Citigroup chairman, who declined to be named, criticised the competition watchdog’s approach to the lawsuit.

“I found the whole thing interesting in the sense that this is a fairly aggressive move by ACCC.

The former chair pointed to the UK financial regulator’s historic “Blue Arrow” case that similarly pursued criminal charges over a failure to disclose excess shares. “They thought they disclosed the short falls and got into real trouble,” he said.

The 1990s Blue Arrow case ran up legal bills into £40 million ($71 million) and was described at the time as a “costly disaster” that should never be repeated, with convictions turned over on appeal after judges found the matters too complex for a jury to understand.

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