Prosecutor drops all charges in ACCC’s high-stakes ANZ Bank cartel case

The competition watchdog’s high-stakes lawsuit over alleged criminal cartel activity to manipulate ANZ Bank’s share price has been thrown out after more than four years of litigation.

The Commonwealth Director of Public Prosecutions on Friday morning sent letters to the accused, including Citi’s John McLean and Itay Tuchman and Deutsche Bank’s Michael Ormaechea and Michael Richardson, informing them that all charges had been dropped and there would be no further action.

The ACCC’s long-running and high-stakes lawsuit over an alleged banking cartel has collapsed. Credit:Louie Douvis

Justice Michael Wigney told the Federal Court on Friday he was surprised to learn of the CDPP’s decision to file for a “nolle prosequi” (unwilling to pursue) against all parties.

“The effect of it is, for those listening who don’t know what Nolle prosequi means in Latin, the prosecution is now declining to proceed on the indictment, with the result the accused will be discharged and the matter will come to an end,” Justice Wigney said.

In a hearing that lasted only a few minutes, lawyer acting for Michael Ormaechea, Tony Bannon SC, made a brief statement criticising the public prosecutor’s handling of the matter, which has been plagued by delays and setbacks.

“On behalf of Mr Ormaechea, I just wish to record that it is very unfortunate that it has taken this long for this to occur,” Mr Bannon said. “My client and all the parties have maintained from the outset that this case did not have a proper basis. The personal cost to the individuals, including my client, is enormous and cannot be measured.”

Justice Wigney, who has also been critical of the delays and requested the CDPP refile the indictment a number of times, responded: “Yes. I can well understand that sentiment.”

The parties had faced criminal prosecution, heavy fines and possible jail terms over the alleged activity which was claimed to have occurred in August 2015 in a series of phone conversations allegedly designed to keep a floor under ANZ’s share price following its botched $2.3 billion capital raising.

The ACCC offered immunity to JP Morgan bankers in exchange for witness testimony deemed to be at the heart of the case. However, the defence argued the witness evidence had not been collected properly and over the past six months, the CDPP has gradually dropped charges.

In August, two thirds of the charges were dropped after it was revealed key conversations had not been recorded. Then in October, the CDPP dropped charges against ANZ and its former group treasurer Rick Moscati.

“There will need to be some serious questions asked of the ACCC,” said one of the lawyers involved in the case, who could not be named because they were not authorised to speak publicly.

ACCC chair Rod Sims said the regulator considered the alleged conduct stood to damage competition and the Australian economy, but acknowledged the outcome of the case.

“We respect the independent decision of the CDPP, and with them will consider what lessons can be learnt from this matter,” Mr Sims said.

“While there can be challenges involved in bringing criminal cartel prosecutions, particularly due to the complexity of the cartel laws, we will continue our efforts to deter, detect and dismantle cartels, and will continue to refer serious cartel conduct to the CDPP for its consideration.

“That is our role, and we will continue to fulfil it, even though not all briefs of evidence given to the CDPP will result in the laying of charges or convictions.”

More to come.

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