Mr Pratt's fall from grace

Criminal proceedings

The 2007 decision of Heery J was based upon an Agreed Statement of Facts in which Visy admitted that it had engaged in the alleged conduct. However, the ACCC had previously obtained oral evidence from Mr Pratt in 2005 pursuant to a notice to appear under s 155(1)(c) of the Trade Practices Act.

Last year, the ACCC commenced the criminal proceedings against Mr Pratt, alleging four contraventions of s 155(5) of the Trade Practices Act, which prohibits giving false and misleading information under a section 155 notice. If he had been convicted of all four counts, Mr Pratt could have faced a maximum prison sentence of four years.

The ACCC alleged that Mr Pratt gave false evidence during his examination before the ACCC when he said that he did not recall having conversations with Russell Jones, Amcor’s Managing Director at the time, about the existence of an agreement between Visy and Amcor. The ACCC argued that by consenting to the Agreed Statement of Facts, Mr Pratt had admitted to having been part of the meeting, when he had previously denied this.

Mr Pratt's lawyers argued that the Agreed Statement of Facts did not constitute an admission on Mr Pratt's part, and should not be used for criminal proceedings. Here, it is worth noting that Heery J stated at paragraph [1] of his 2007 judgment:

The parties have tendered an agreed statement of facts. This means that the parties agree that, for the purposes of this proceeding, the facts in this statement are not to be disputed: see Evidence Act 1995 (Cth) s 191. The parties say that this agreement is not to be taken as an admission to those facts outside the context of this proceeding. [emphasis added]

Mr Pratt's legal team also received advice from former High Court Justice Ian Callinan QC indicating that reliance on the statements was impermissible:

In a legal opinion prepared for Mr Pratt's defence, Mr Callinan said:

In my opinion, this oppressive, improperly and ill-conceived prosecution should be discontinued.

The prosecution is, for the reasons I have stated, tainted with improprieties. It should not proceed, and the DPP should terminate it. It is my firm view that reliance upon the agreed statement of facts by any Commonwealth agency in making a decision to prosecute is not proper in the circumstances.

Further, Mr Pratt's lawyers also argued that the criminal proceedings constituted an "abuse of process", with the ulterior motive being a personal crusade by Graeme Samuel, the head of the ACCC, to criminalise cartels (a measure for which Mr Samuel had again called after the 2007 Visy case).

They also said that the ACCC had essentially set a "honeytrap" by getting Mr Pratt to admit he had met with Mr Jones, promising that this evidence would not be used against him, when in fact this was untrue. They then attempted to use that evidence against him in criminal proceedings. If they had intended to bring criminal proceedings, they should have done so at the outset, instead of waiting, and using the civil proceedings as an impermissible method of gathering evidence for the criminal proceeding.

The criminal charges by the ACCC has led to criticism. Mr Pratt believed that Mr Samuel had a personal vendetta against him, and others noted that they had fallen out long before the ACCC proceedings, when the two men were involved with opera. Others believed that the ACCC’s pursuit of Mr Pratt was entirely reasonable.

Problems with the ACCC's case

There are a number of difficulties with the decision to pursue Mr Pratt for criminal conduct. First, Mr Pratt and Visy were not the only wrongdoers in the civil case. Only Visy and its executives were pursued by the ACCC because, as Heerey J explained at [8] of his judgment: