Will the Dick Pratt criminal case end up like that of his old friend John Elliott or that of Enron’s Ken Lay? With Australia’s best criminal defense practitioner, Robert Richter QC, in command, Pratt’s defense has taken an aggressive approach. The Age’s Leonie Wood today reports:

Robert Richter QC has told the Federal Court that his client believes he was “entrapped” by the competition regulator into settling a long-running cartel case last year, but that he only signed the settlement for commercial reasons and that he was “under duress and pressure” at the time…

During preliminary proceedings in the Federal Court today, Justice Donnell Ryan heard lengthy submissions from Mr Richter who argued that the ACCC’s conduct in relation to Pratt amounted to “a serious and egregious abuse of process”.

There seems to be two likely possibilities. The first is that Richter succeeds in allowing Pratt to escape on a technicality. For example, successfully claiming that the ACCC abused its power by entering into a civil agreement with the knowledge that it would soon proceed with a criminal prosecution. The second scenario is that Dick doesn’t even make it that far.

Richter took a similar, successful tack in defending John Elliott. Elliott, along with three other senior Elders executives, had been accused by the National Crime Authority of defrauding shareholders over payments to crooked New Zealand entrepreneurs and a dodgy convertible bond scheme. The Elliott matter never made it to trial. None of the hundreds of witnesses were ever called and the court never heard the evidence of former Elders CFO, Ken Jarrett, who pleaded guilty and was set to testify against Elliott. This was due to Richter’s successful argument that the NCA breached its terms of reference through its investigation of the later bankrupted Carlton President.

The essence of Richter’s argument in that case was that John Elliott was just a poor innocent victim of a politically inspired NCA plot. How dare they investigate such a great Australian? (Courtesy of Frank Vincent delivering the worst finding of his career, it worked). This appears to be a remarkably similar strategy to the one the Pratt team is currently employing. Richter is endeavoring to attack the motives and methods of the ACCC, rather than bothering to deny Pratt’s guilt, which would be a far more difficult argument to sustain.

If the “Elliott defense” fails, Pratt may escape criminal sanctions courtesy of the Ken Lay route. The septuagenarian Pratt suffered prostate cancer a few years ago and is extremely frail, not displaying the vitality that the former Morrish medallist once had. Like former Enron Chairman, Ken Lay, Pratt may simply not survive a long-running criminal trial, laced with numerous preliminary legal arguments.

Ken Lay was convicted on six counts of conspiracy, wire fraud and securities fraud over the collapse of Enron, with the former CEO and Chairman of the the energy trading multinational set to face a lifetime in jail. However, before Lay was sentenced, he passed away in his luxury Aspen estate. As a result of his death, the criminal proceedings against Lay simply vanished. Business Credit noted that:

The death of a criminal defendant pending an appeal of his or her case abates, ab initio, the entire criminal proceedings.

As further explained in a recent Fifth Circuit decision, the case [against a deceased person], “does not just disappear, and the case is not merely dismissed … [i]nstead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted.” This principle derives from “due process,” or the “fairness,” of the justice system and that the government should not label a person guilty that has not exhausted at least one opportunity to appeal a conviction.

Regardless of his guilt. With a barrister like Richter and a frail body, there appears less chance of Pratt being convicted than of his believed Carlton winning this year’s AFL premiership.