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Friday 31 July 2015

15-204MR Former Abalone CEO charged over false statements

ASIC has brought criminal charges against Mr Andrew Ferguson, the former Chief Executive Officer of abalone farmer, Australian Bight Abalone Ltd (ABA).

Mr Ferguson, of Hollywell in Queensland, faces a total of 17 charges related to providing false or misleading information to the ABA Board of directors and to prospective investors.

Mr Ferguson was charged with nine counts of disseminating false or misleading information to prospective investors, in grower reports, product disclosure statements and a media release issued by ABA during 2007 and 2008. It is alleged that these documents contained false or misleading information about growth and survival rates of the abalone and harvest prospects.

Mr Ferguson faces a further eight counts of providing false or misleading information to the directors of ABA, in reports submitted to the Board about operations at the ABA farm.

The matter was mentioned today in Adelaide Magistrates Court and adjourned to 11 September 2015 at 11.30am.

The Commonwealth Director of Public Prosecutions is prosecuting the matter.

Background

ABA was Australia's largest off-shore abalone farmer, raising about $44 million from 1400 investors over four years.  ABA operated an abalone farm in off-shore cages located near Elliston in South Australia between 2005 and 2009. The company also operated managed investment schemes (MIS), through which investors acquired interests in abalone grown at the farm, entitling them to returns from the sale of harvested abalone.

The initial MIS project was offered to wholesale investors only in 2005, but a MIS was offered to retail investors in each subsequent year between 2006 and 2009.

Administrators (McGrath+Nicol) were appointed to ABA in July 2009 after the company had been able to undertake only a limited harvest of the abalone stock. The Administrators reported that a survey conducted of the abalone stock at the farm suggested significantly higher mortality than had been expected.

Each charge in relation to disseminating false or misleading information carries a maximum penalty of five years imprisonment or a fine of $22,000, or both.

Each charge in relation to providing false or misleading information to directors carries a maximum penalty of five years imprisonment or a fine of $22,000, or both.

Editor's note 1:

On 11 September 2015 the matter was adjourned to 17 November 2015.

Editor's note 2:

On 17 November 2015 the matter was adjourned to 4 February 2016.

Editor's note 3:

On 4 February 2016, the matter was adjourned to 25 February 2016.

Editor's note 4:

On 25 February 2016, the matter was adjourned to 10 March 2016.

Editor's note 5:

On 10 March 2016, the matter was adjourned to 21 April 2016. 

Editor's note 6:

On 21 April 2016, the matter was adjourned to 20 May 2016.

Editor's note 7:

On 20 May 2016, the matter was adjourned to 3 June 2016.

Editor's note 8:

On 3 June 2016, Mr Ferguson appeared in the Adelaide Magistrates Court and pleaded not guilty to the charges against him. The Court found that Mr Ferguson had a case to answer and committed him to the Adelaide District Court for trial. Mr Ferguson will be arraigned in the Adelaide District Court on 22 July 2016 at 9am.

Editor's note 9:

On 22 July 2016, the matter was adjourned to 26 August 2016 at 9am.

Editor's note 10:

On 26 August 2016, Mr Ferguson was arraigned in the District Court and pleaded not guilty to all counts. The matter was adjourned to a directions hearing on 2 November 2016 at 9.00 am.

Editor's note 11:

On 2 November 2016 the District Court heard the matter and set a special directions hearing for 21 February 2017 at 3.00 pm. The trial is scheduled for 7 November 2017.  

Editor's note 12:

On 21 February 2017 the Court adjourned the matter to 26 April 2017 at 2.15 pm for a special directions hearing. The trial is scheduled for 7 November 2017.

Editor's note 13:

On 7 June 2017, Mr Ferguson appeared in the Southport Magistrates Court.  

The Court adjourned the matter and ordered Mr Ferguson to appear in the Adelaide District Court on 15 June 2017. The trial is scheduled for 7 November 2017.

Editor's note 14:

On 10 July 2017, the matter was adjourned to 1 August 2017 at 9am. The trial remains scheduled for 7 November 2017.

Editor's note 15:

On 22 August 2017, the matter was adjourned to 5 September 2017 at 9.15am. The trial remains scheduled for 7 November 2017.

Editor's note 16:

On 5 September 2017, the matter was adjourned. The Registry will advise the parties of the adjourned date, expected to be in early October. 

The trial remains scheduled for 7 November 2017.

Editor's note 17:

On 11 October 2017, the matter was adjourned to 23 October 2017 at 9.30am. 

The trial remains scheduled for 7 November 2017.

Editor's note 18:

 A Special Directions Hearing was held on 23 October 2017. 

The trial remains scheduled for 7 November 2017.

Editor's note 19:

The trial of Mr Ferguson has been part heard and has been adjourned until 8 January 2018.

Editor's note 20:

On 7 February 2018, Mr Ferguson was found guilty on 17 counts related to providing false or misleading information to the ABA Board of Directors and prospective investors following a jury trial in the District Court of South Australia. Refer: (18-016MR)

Editor's note 21:

On 7 February 2018, the defendant filed a Notice to appeal against conviction. The permission to appeal hearing is listed on 13 March 2018 at 10.00am in the Supreme Court.

Editor's note 22:

On 5 March 2018, the permission to appeal hearing was administratively adjourned to 26 March 2018 at 10.00am in the Supreme Court.

Editor's note 23:

On 26 March 2018, the permission to appeal hearing was administratively adjourned to 16 April 2018 at 10.00am in the Supreme Court.

Editor's note 24:

The permission to appeal hearing has been administratively adjourned to 30 April 2018 at 10.00am in the Supreme Court.

Editor's note 25:

The sentencing hearing of Mr Ferguson has been adjourned to 18 May 2018 at 9.30am in the District Court.

Editor's note 26:

The permission to appeal hearing has been administratively adjourned to 14 May 2018 at 10.00am in the Supreme Court.

Editor's note 27:

On 14 May 2018, the Court of Criminal Appeal granted Mr Ferguson permission to appeal against conviction. The date of the appeal hearing is to be determined.

Editor's note 28:

On 18 May 2018, the District Court heard sentencing submissions from Mr Ferguson and the Crown. The matter has been adjourned to 1 June 2018 at 9.30am.

Editor's note 29:

On 19 June 2018, the Supreme Court of Appeal heard submissions from Mr Ferguson and the Crown in relation to Mr Ferguson's appeal against his conviction. The decision has been reserved.

Editor's note 30:

On 22 June 2018, Mr Ferguson filed a Notice to Appeal against sentence. The permission to appeal hearing is listed on 16 July 2018 at 10:00am at the Supreme Court.

Editor's note 31:

The permission to appeal hearing (against sentence) has been administratively adjourned to 30 July 2018 at 10.00am in the Supreme Court.

Editor's note 32:

Prior to the hearing on 30 July 2018, Mr Ferguson withdrew his appeal against sentence. On 5 December 2018 the Court of Criminal Appeal dismissed Mr Ferguson’s appeal against conviction.

Read the judgement here.

Last updated: 10/03/2016 12:00