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Adler v The Queen

Adler v The Queen

Case [2006] NSWCCA 158 18 May 2006

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Adler v R
Medium Neutral Citation:	[2006] NSWCCA 158
Hearing Date(s):	22 March 2006
Decision Date:	18 May 2006
Before:	McClellan CJ at CL Sully J Hislop J
Decision:	By majority: Appeal dismissed
Catchwords:	CRIMINAL LAW – breaches of the Corporations Act – appeal against sentence - dissemination of false information – dishonesty – failure to discharge duties as a director in good faith and in the best interests of the company – whether evidence to support findings relating to inducement to purchase securities, share price rise and investors’ loss – whether adequate weight given to principle of double jeopardy having regard to civil penalty proceedings – application of De Simoni principle – whether punished for an offence for which not convicted – whether sentence reflected objective criminality – whether adequate weight given to guilty plea – whether sentence manifestly excessive
Legislation Cited:	Corporations Act 2001 (Cth) Crimes Act 1900 (NSW) Crimes Act 1914
Cases Cited:	Adler & Anor v Australian Securities and Investment Commission; Williams v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 Australian Securities Investment Commission v Adler [2002] NSWSC 171; (2002) 168 FLR 253; (2002) 41 ACSR 72 Gas v The Queen (2004) 217 CLR 198 Markarian v R (2005) 215 ALR 213 Pearce v The Queen (1998) 194 CLR 610 R v Goward (unreported, NSWCCA 16 October 1998 R v Loiterton [2005] NSWSC 905 R v Thomson (2000) 49 NSWLR 383 R v Thomson [2003] VSCA 164 Rich & Anor v Australian Securities and Investment Commission (2004) 209 ALR 271
Category:	Principal judgment
Parties:	Rodney Adler (Appl) The Crown
Representation:	COUNSEL: E L Fullerton SC/ M Buscombe (Appl) W Abraham QC/M Wigney (Crown) SOLICITORS: Gilbert & Tobin Lawyers Commonwealth Director of Public Prosecutions
File Number(s):	2005/2259
Decision under appeal:
Court or Tribunal:	Supreme Court
Before:	Dunford J
File Number(s):	2003/48

JUDGMENT

McCLELLAN CJ at CL: On 16 February 2005 the applicant pleaded guilty to an indictment containing the following counts:
Count 1 (s 999 count)
On 19 June 2000 at Sydney in the State of New South Wales did disseminate information that was false in a material particular and was likely to induce the purchase by other persons of securities, namely ordinary shares in HIH Insurance Limited (HIH) when at the time of disseminating the said information he knew that it was false in a material particular (s 999 Corporations Act 2001 (Cth)).
Count 2 (s 999 count)
On 20 June 2000 at Sydney in the State of New South Wales did disseminate information that was false in a material particular and was likely to induce the purchase by other persons of securities, namely ordinary shares in HIH, when at the time of disseminating the said information he knew that it was false in a material particular (s 999 Corporations Act 2001 (Cth)).
Count 3 (“BTS” count)
Between 3 October 2000 and 11 October 2000 at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adler v The Queen

Details

AGLC: Adler v The Queen [2006] NSWCCA 158
Case: [2006] NSWCCA 158
Decision Date: 18 May 2006

CaseChat Overview and Summary

The appeal against sentence in Adler v The Queen involved the respondent, who was a director of various companies, and the appellant, the Queen, represented by the Commonwealth Director of Public Prosecutions. The respondent had been found guilty of multiple counts of breaches of the Corporations Act, including disseminating false information and failing to discharge duties as a director in good faith and in the best interests of the company. The appeal was focused on the sentence imposed by the primary judge, which the respondent argued was manifestly excessive and did not adequately reflect the objective criminality or the principles of double jeopardy, guilty plea, and the De Simoni principle.

The legal issues before the court were whether the evidence supported the findings relating to the inducement to purchase securities, share price rise, and investors' loss, whether the principle of double jeopardy had been adequately considered in light of civil penalty proceedings, whether the De Simoni principle had been correctly applied, whether the respondent had been punished for an offence for which they had not been convicted, whether the sentence reflected the objective criminality of the offences, and whether adequate weight had been given to the guilty plea. The court also needed to determine if the sentence was manifestly excessive.

The court found that the evidence did support the findings relating to the inducement to purchase securities, share price rise, and investors' loss. The court further determined that adequate weight had been given to the principle of double jeopardy, as the civil penalty proceedings were not criminal in nature and did not involve the same elements as the criminal charges. The De Simoni principle was correctly applied, and the respondent had not been punished for an offence for which they had not been convicted. The sentence was held to reflect the objective criminality of the offences, and adequate weight was given to the guilty plea. The court concluded that the sentence was not manifestly excessive and dismissed the appeal against sentence.

Orders