Crikey editor Misha Ketchell provided
an interesting insight from Graeme Samuel yesterday, in which Samuel
noted that “there’s always going to be a debate about granting a
conspirator immunity. I guess this is part of a process that is well
established worldwide and it’s an extrapolation of plea bargaining.”

Granting
immunity to one alleged criminal in order to obtain the conviction of
another is straight out of Prosecution 101. It is what ASIC and the DPP
should have done in the Vizard case and what the United States
Securities and Exchange Commission (together with US Attorney Rudy
Giuliani) did brilliantly in the 1980s (as documented by James B
Stewart in his best-seller, Den of Thieves).

The SEC
offered Ivan Boesky (the notorious insider trader who uttered the
immortal words, “greed is good”) in order to catch the bigger fish,
racketeer, insider trader, price manipulator and fraudster, Michael
Milken of Drexel Burnham Lambert. Milken was eventually sentenced to
ten years’ jail and fined US$600 million while Boesky served three and
a half years and was fined the lesser sum of US$100 million. Other
informants, like Drexel’s Dennis Levine and Kidder Peabody’s Marty
Siegel received similarly light sentences in exchange for the testimony.

While
the SEC initially were criticised at the time for offering deals to
Boesky and Siegel, they did so in order to prosecute Milken (the
biggest fish) whose crimes were by far the most serious. However, in
the case of Amcor and Visy, from the allegations, neither company seems
to be more at fault than the other.

From what has been made public so far, it seems that executives at both
companies were equally culpable and stood to gain equally from the
alleged behaviour. Based on this, what is stopping a company from
engaging in price-fixing, reaping millions from the illegal behaviour
and then years later coming clean and dobbing in their co-conspirator
in exchange for immunity and being able to keep all those ill-gotten
profits?