Would a bank executive stand a better chance of defending criminal charges in a trial before a judge, or a jury of their peers?
This is one of the many questions raised by the landmark criminal cartel charges laid against ANZ Bank, Citi and Deutsche Bank, and six senior bankers, by the Commonwealth Director of Public Prosecutions (CDPP) this week.
Unlike previous high-profile cases dealing with the arcane workings of financial markets, it is expected this matter would be decided by a jury if it went to trial, because it is criminal.
Experts say this is significant for the banks, the Australian Competition and Consumer Commission (ACCC) and the CDPP.
Much is still unknown about this case, but lawyer Brent Fisse, an expert in cartel cases, says if he were a bank he’d be “a little bit concerned” about the hardening in community attitudes towards banks, as reflected in the royal commission.
“It may actually be a disadvantage to be tried by jury,” says Fisse, of Brent Fisse Lawyers. “But you would have to look at the circumstances of the case, the evidence, the way it’s presented, and who is sitting on the jury.”
The precise allegations in this case are not yet public, but the basic facts are that the CDPP is accusing the banks of engaging in cartel conduct following ANZ’s $2.5 billion capital raising in 2015. Citi, Deutsche and JP Morgan underwrote the raising, and they ended up holding almost $800 million in ANZ shares when big investors decided not to take up all of the shares offered.
The ACCC says the cartel arrangements related to the trading in ANZ shares held by Deutsche and Citi – the banks deny this and have vowed to defend the charges against them and their staff. JP Morgan is believed to have immunity.
While there is public antipathy towards banks, however, it should also be noted that the ACCC is bringing charges in a technical area of the law. It has not proven these allegations in the financial markets before.
And, being a criminal case, the burden is on them to prove their allegations “beyond reasonable doubt”.
Professor Caron Beaton-Wells, from the University of Melbourne, says a trial before a jury would be “challenging for all concerned,” because provisions in this area of the law are so “technical and convoluted.”
“Pity the judge who has to compile a coherent set of jury directions!” Beaton-Wells says.
She points out the Federal Court has been preparing jury directions for some time for cartel trials, anticipating these challenges.
Complexity is nothing new in the law, but Fisse says that if it leads to confusion, it can favour the defendant.
“If you get jury confusion, the chances are that there won’t be a majority verdict, because quite a few of them will feel there’s a reasonable doubt about liability,” he says.
Another potential issue is that it may be harder for the banks to appeal a jury’s verdict.
Associate Professor of criminal law at Monash University, Jacqui Horan, says it is generally easier for well-resourced defendants to appeal a judge’s decision, because it will come with published reasons – unlike a jury decision.
But Horan also says juries are capable of understanding complex financial matters, and that available research in this area has found that judges and juries “tend to decide things similarly”.
“Juries these days are sophisticated enough to decide financial matters, and you don’t have to have any financial background to be a judge,” Horan says.
Besides, she says a jury trial has the advantage of giving the community a voice in the very topical issue of corporate conduct.
“In this day and age, the voice of the jury is a great way to send a message to the banks about what behaviour is tolerated, and appropriate, and what behaviour is not.”