Stephen Bartholomeusz
A hollow win for Pratt
The manoeuvring around Dick Pratt’s criminal prosecution, even as the billionaire lies dying, is understandable but still rather unedifying.
The Commonwealth Director of Public Prosecution’s decision to drop the criminal charges against Pratt – that he gave misleading evidence to the Australian Competition and Consumer Commission over price-fixing involving his Visy group and Amcor – was as tactical and as much a public relations strategy as the successful attempt by Pratt’s lawyers to get an early ruling from Justice Donnell Ryan on the status of a key piece of evidence.
The DPP wants to leave open the question of Pratt’s guilt; the Pratt team wants to convey at least the impression of innocence. It is all about reputations – Pratt’s, of course, but also the DPP’s and the ACCC’s.
The DPP decided to drop the charges after Justice Ryan ruled that Pratt’s statement to the ACCC which under-pinned the civil settlement that cost him $36 million was inadmissible in the criminal proceedings.
While it cited the gravely ill Pratt’s health as the reason for deciding not to pursue the case, the ACCC continues to assert that there had been a reasonable prospect of a conviction even without the statement.
Had the case continued, the DPP would have had to rely on the evidence of former Amcor chief executive Russell Jones, as well as an interview Pratt gave to The Australian in the lead-up to the civil settlement and other statements.
The Pratt team, of course, contends that the statement was central to the DPP’s case and that without it the case would have imploded. Certainly the case would have been stronger had the DPP been able to convince the court the statement could be used against Pratt.
Not surprisingly, Pratt’s lawyers, who went to the court late last week to ask Justice Ryan to bring forward the timing of his ruling because of Pratt’s health, oppose the dropping of the charges.
They have said consistently that they didn’t want the charges dropped on the grounds of ill-health, which would leave open the question of Pratt’s guilt. They wanted the DPP to simply withdraw the charges. If the DPP weren’t able to cite ill-health, a decision to drop the charges would be interpreted as a lack of evidence.
The Pratt team’s strategy, in seeking an early ruling, was to demonstrate the frailty of the DPP case – even though the ruling related to the admissibility of Pratt’s statement as evidence in criminal proceedings rather to any fundamental finding of guilt or innocence.
They are now considering whether the court can be asked to refuse the DPP’s attempt to drop the charges on the grounds of ill-health and allow the case to continue and allow Pratt to demonstrate he is still fighting the charges, even though the eventual outcome – perhaps within days – would be that the charges were dropped for the want of someone to prosecute.
If one steps back from the attempts to ‘spin’ the events in court the one certainty is that the Pratt legacy will now not carry the stigma of an unresolved criminal prosecution. Today’s events haven’t cleared his name – the reality of the massive settlement makes that impossible – but were just about all his legal team could achieve in the circumstances.
What will not be resolved is the bitterness the Pratt camp feels towards the ACCC chairman, Graeme Samuel, for his role in launching the prosecution after obtaining the civil settlement. Pratt’s friends have described Samuel’s actions (even though the decision was made by the commission and the DPP) as a ‘betrayal’ of someone Samuel has known for decades.
It would, of course, have been a betrayal of his high public office had Samuel allowed any private relationship to influence the discharge of his duties.
A more sophisticated argument is that he should have had no involvement in the deliberations that led to the prosecution because of his relationship with Pratt.
There is a view within the Pratt camp that Samuel, because he had known Pratt for a long time, may have been tougher on him than he might otherwise have been to avoid any perception that his actions had been coloured by the relationship and therefore should have stayed out of the process.
However, Samuel, after decades as a senior corporate lawyer, senior investment banker and corporate player himself would, be unable to function as ACCC chairman if he were to step aside from any matter involving any business person he knew well.
Knowing someone for a long time isn’t necessarily the same as having the kind of personal friendship that would create a real conflict. If that were the test, the ACCC chair could only be held by someone with no significant commercial experience or relationships.
Nevertheless, Samuel has made some powerful and very determined enemies and that hostility is likely to survive both Pratt and the dropping of the charges.
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