District Court New South Wales Medium Neutral Citation: R v Bigatton [2022] NSWDC 144 Hearing dates: 24 March 2022 Date of orders: 13 April 2022 Decision date: 13 April 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Make orders in terms of para [1] and para [2] of the Notice of Motion Catchwords: CRIMINAL PROCEDURE — Subpoena Legislation Cited: Companies Act 2006 (UK) Corporations Act 2001 (Cth) Cases Cited: A v Z [2007] NSWSC 899; (2007) 212 FLR 255 Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 R v Saleam [1999] NSWCCA 86 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 Tropic Asphalts that the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Waters v Secretary of the Attorney-General's Department (Cth) [2021] NSWCCA 193 Category: Principal judgment Parties: Australian Securities and Investments Commission John Louis Anthony Bigatton (Accused) Representation: Michael Rennie (Counsel for ASIC) Liam MacAndrews (solicitor for the accused) Australian Securities and Investments Commission Nyman Gibson Miralis (accused) File Number(s): 2020/00293887 REVISED JudgEment Introduction 1. John Louis Anthony Bigatton is listed for trial on 6 June 2022 in this Court in a prosecution brought by ASIC alleging offences the particulars and description of which have been set out in the submissions provided in writing on behalf of the accused, the respondent to the notice of motion before this Court from the Australian Securities and Investments Commission. The Prosecution 1. He was originally presented upon the indictment alleging one count of operating an unregistered managed investment scheme contrary to s 610EE(5) and s 1311(1) Corporations Act 2001 (Cth) and one count of providing financial services on behalf of a principal without holding an Australian Financial Services licence contrary to s 911B(1) and s 1311(1) Corporations Act. There were also four counts of making false and misleading statement in relation to financial products that was likely to affect market participation contrary to s 1041E(1) and s 1311(1) Corporations Act. 2. On Friday 11 March 2022, a representative of the Office of the Director of Public Prosecutions for the Commonwealth wrote to the accused's solicitors advising that a decision was made to "no bill" the four counts of making false and misleading statement and that leave would be sought to amend the indictment omitting those counts. The Investigation 1. Investigation into this prosecution included inquiries made by the investigating authorities in the United Kingdom and in the United States; the conduct alleged of the accused is in respect of a role he allegedly performed in BitConnect International PLC amongst other activities. The Defence 1. The accused denies wrongdoing and it is apparent from para [28] in written submissions provided on his behalf that his defence will turn upon what he claims to be false records or at least inaccurate records. He challenges the allegation that he was appointed as a director of BitConnect International PLC, of which the Crown was notified in a letter by his solicitors to the Office of the Commonwealth Director of Public Prosecutions on 21 January 2022. 2. The letter included the following: 10. We are instructed that Mr Bigatton never consented to, knew of, or participated in, any purported appointment of him as a director of BitConnect, and that to the extent to which the AP01 [an Appointment of a Director form] may be intended to identify him, it was submitted fraudulently. 11. Moreover, recently obtained material from the United Kingdom, indicates that numerous directors of BitConnect, were removed from this position on the basis of a legislative provision allowing for such an action where their appointment was occasioned by fraud or without the consent – section 1095 Companies Act 2006 (UK). This manifestly heightens the need for proper inquiries being made in the UK Companies House for all relevant information and documentation concerning BitConnect. 1. Paragraph [29] of the submissions then continues: 29. Moreover, the UK Companies House filing history for BitConnect International PLC (see Ivanov affidavit at [5] and [p 36 of Exhibit KI-1.]) demonstrates that numerous other directors were removed from this company, including on the basis that, "the information was forged." 30. In addition to the numerous references in the brief of evidence to BitConnect International PLC and/or documents from UK Companies House (see, for example, Ivanov affidavit at [5] and [pages 1-109 of exhibit KI-1]), it is also apparent that ASIC has seen it necessary to further investigate this alleged connection. Two letters from the CDPP have set out investigations ASIC has conducted with respect to the UK Companies House. 1. The ultimate issue in the trial as I perceive the matter will be whether the accused has been correctly identified as the person nominated in the respective positions at the time of the conduct said to found the criminality upon which the charges are brought. The Application by ASIC 1. The accused issued a subpoena to ASIC under cover of letter of 10 November 2021. The schedule includes four items, specifying the types of documents sought. There has been discussion between the parties regarding items 1, 2 and 3, but in issue remains the call for documents described as follow: 4. Records - including emails, SMS messages, calls, written notes, images, diagrams, electronic files, or other communications - of communications between (including the provision of documents and/or other materials): 1. ASIC (or any representative thereof including from but not limited to Adam Anthony Boscoscuro and Stefan Williams) and the Australian Tax Office; 2. ASIC (or any representative thereof including from but not limited to Adam Anthony Boscoscuro and Stefan Williams) and New South Wales Police; 3. ASIC (or any representative thereof including from but not limited to Adam Anthony Boscoscuro and Stefan Williams) and the Australia Federal Police; and 4. ASIC (or any representative thereof including from but not limited to Adam Anthony Boscoscuro and Stefan Williams) and any other foreign law enforcement body; Concerning the investigation into the alleged offence committed by Mr Bigatton in relation to BitConnect between 16 October 2018 to present. 1. The structure of that call on its face does have aspects that suggest oppression but I need make no further comment in relation to that. 2. Negotiations between the parties have continued and the call has been narrowed significantly, as described in paras [1] and [2] in ASIC submissions in reply. I shall quote: "1. Through submissions the accused has conceded much of the application brought by ASIC. In effect, prayer 2 of the Notice of Motion is to be granted to the extent that paragraphs 4(a) to (c) of the subpoena are to be struck out. The accused seeks only that paragraph 4(d) survives: see paragraphs [5] and [6] of the Accused's submissions. 2. With the issues before the Court so narrowed, ASIC maintains the position that no legitimate forensic purpose exists for paragraph 4(d) of the subpoena. For completeness paragraph 4(d) of the Subpoena seeks production of communications between 'ASIC... and any other foreign law enforcement body' (emphasis added). With respect, the manner in which paragraph 4(d) has been drafted demonstrates the extent to which it can properly be regarded as impermissible fishing." 1. The Court book assembled for the resolution of this question extends to 331 pages. It includes the Notice of Motion filed on behalf of the applicant, the Subpoena to ASIC, the submissions on behalf of ASIC, the submissions on behalf of the accused, and the submissions in reply on behalf of ASIC, together with evidence by affidavit by Adam Anthony Boscoscuro dated 11 March 2022, the affidavit of Scott Stuart Bowie dated 14 March 2022, the affidavit of Kalina Ivanov dated 18 March 2022, and exhibits to the affidavit of Kalina Ivanov. 2. It is unnecessary for me to summarise all content of the evidence provided by these affidavits, identified as items 6, 7, 8 and 9 in the index to the court book. 3. The submissions prepared by the parties compare with what is contained in those documents and refer to all the relevant matter that informs the decision that I have come to. Consideration 1. The general proposition that applies regarding subpoenae is quite simply that they are not an investigative tool. A subpoena is a process issued at the instigation of a party in proceedings and by the court to produce documents or material that will provide evidence relevant to the issues to be agitated in the proceedings. The subpoena is not to be used to find out whether material exists; it is a process which enables material that is believed to exist to be brought to court. The material must have relevance to the proceedings that are before the Court but it is clear from the authorities that the courts, when dealing with these questions, must take a sympathetic approach without being unduly restrictive in determining whether a subpoena pursues the documents sought for a legitimate forensic purpose in the proceedings. 2. It is also apparent from the material provided that the Commonwealth Director of Public Prosecutions has, in my perception of the matter, been assiduous in its obligations to give proper disclosure to the accused of evidence relevant to the proof of the crimes with which the accused is charged. In response to the letter to which I referred it made further enquiries to address the concerns that were published to it regarding the possibility of the incorrect identification of the accused as the person responsible for these offences, bringing to account that according to information thereby provided to the Director, other persons fraudulently named as principals or officers in the entities have had the particulars of their identity removed. 3. Ultimately the question has been succinctly stated in the submissions in reply from ASIC. 4. Reference was made to authority that was carefully analysed in the submissions filed in support of the Notice of Motion on behalf of ASIC at first instance, including the decision in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 and the judgement of Bell P, as he then was, who reviewed the authorities in some depth, after which it is perceived that there has been a divergence of the applicable principles in civil proceedings compared with, or perhaps contrasted with, the approach that had been taken in criminal proceedings reflected in the judgement of Beazley JA in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 where her Honour, as she then was, clarified the test drawn from R v Saleam [1999] NSWCCA 86, stated by Simpson J at para [11] in the following terms, "Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case." 1. More recently Davies J in Waters v Secretary of the Attorney-General's Department (Cth) [2021] NSWCCA 193, with whom Macfarlan JA and Beech‑Jones J agreed, wrote at paras [27] and [28]: "The approach now proposed by Bell P in civil cases, (his Honour said at [60] that the language of 'tests' is to be eschewed, because the issue was whether the subpoena involved an abuse of process) had been put forward at an earlier time by Brereton J (as his Honour then was) in A v Z [2007] NSWSC 899; (2007) 212 FLR 255, and adopted by Macfarlan JA (Button and Ierace JJ agreeing) in Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 at [29]. Macfarlan JA also noted in Tropic Asphalts that the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 concluded that, whilst it is necessary that it be shown that 'it is likely [that] the documentation [subpoena] will materially assist on an identified issue', the word 'likely' was not used in that formulation in the sense of 'more likely than not'. In my opinion, whatever approach to demonstrating a legitimate forensic advantage is adopted, and whatever verbiage is used to express that approach, the applicant does not show error in the primary judge's judgment. The primary judge was prepared to accept that there could, hypothetically, be a legitimate forensic purpose for seeking possible evidence in supporting a proposition of collusion by Australian officials by misleading Serbian authorities. His Honour then proceeded to consider if there was evidence to support that purpose." 1. It was noted in the submissions that the apparent divergence of opinion expressed in relation to civil cases and criminal cases was not decided in the judgement by Davies J, but whatever the approach to be applied there was no error by the primary judge in that case. There was no evidence that supported the legitimate forensic purpose advanced in that case as to whether there had been some impropriety between Australian officials misleading authorities regarding extradition proceedings. 2. There is no suggestion in this case of any impropriety or inappropriate communication between the Commonwealth law enforcement agencies and others including those overseas in the pursuit of the material that was excited by the letter that emanated from those acting for the accused, and thus the proposition advanced simply stated is that the debate between ASIC and the accused upon the point before this Court highlights the distinction between seeking communications between agencies as opposed to the pursuit of underlying evidence of material facts alleged in the case of the accused. 3. All evidential material such as company registrations and forms has been requested and is to be disclosed. It is noted though that para 4(d) of the subpoena does not seek such evidentiary material, it pursues communications between the agencies, the request for assistance, and any discussions of methodology. 4. I accept the submission made on behalf of ASIC that those communications between the agencies are at best hearsay representations and could not rationally affect, directly or indirectly, the assessment of the probability of the existence of the facts in issue in the proceedings which include ultimately whether the Crown can displace as a reasonable possibility the misidentification of the accused as the person nominated in the material upon which it is intending to rely. 5. I am not satisfied that the respondent to this application has established there is a legitimate forensic purpose for production of the items that have been specified in the subpoena at para 4(d). I therefore propose to make the orders sought in the notice of motion. Orders 1. Notwithstanding that there has been agreement reached regarding orders 1 and 2, I am asked by counsel for ASIC to make all orders sought to complete the processes that led to this hearing before me. Accordingly I make orders in terms of para [1] and para [2] of the Notice of Motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2024