Supreme Court
New South Wales
Medium Neutral Citation: Joffe v R; Stromer v R [2012] NSWSC 409 Hearing dates: 12 April 2012 Decision date: 18 May 2012 Jurisdiction: Common Law Before: Hall J Decision: Order made on 27 April 2012
The evidence particularised in the table to the Notice of Co-incidence Evidence dated 8 July 2011 being Table A entitled “Table of related events the subject of counts in the Indictment” is admissible pursuant to
s.98(1)(b) of the Evidence Act 1995.Catchwords: Evidence – insider trading prosecution – co-incidence evidence – significant probative weight to be assessed taking into account possibility of alternative inferences – inferential reasoning – circumstantial case – whether co-incidence evidence admissible Legislation Cited: Corporations Act 2001 (Cth)
Evidence Act 1995Cases Cited: DSJ v R; NS v R [2011] NSWCCA 9
Edwards v The Queen (1993) 178 CLR 193
Perry v the Queen [1982] HCA 75; 150 CLR 580
R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
Sutton v R [1984] HCA 5; 152 CLR 528Category: Procedural and other rulings Parties: Regina (Crown)
Daniel Shayne Joffe (Accused)
Nathan Stromer (Accused)Representation: Counsel:
Solicitors:
Crown: G Farmer/ J Paingakulam
Joffe: J Game SC/ G Bashir
Stromer: H Dhanji/ L Fernandez
Crown: Solicitor for the Commonwealth DPP
Joffe: Speed & Stracey Lawyers
Stromer: Johnson Winter & Slattery
File Number(s): 2010/34654, 2010/40493
Judgment
PART A – RECONSIDERATION OF CO-INCIDENCE EVIDENCE
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On 5 October 2011 the Court of Criminal Appeal made, amongst other orders, an order that the Notice of Motion filed on behalf of the accused, Daniel Shayne Joffe, on 11 March 2011 and filed on that date on behalf of the accused, Nathan Stromer, be referred back to me as the Trial Judge for reconsideration in light of that Court’s Judgment: (DSJ v R; NS v R [2011] NSWCCA 9).
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The Notices of Motion that were filed on 11 March 2011 sought the following orders:
“The accused, Mr Joffe, by way of notice of motion filed on 11 March 2011, seeks, inter alia, the following orders:
1 An order pursuant to s.192A of the Evidence Act 1995 that the question of the admissibility of the Crown’s Co-incidence Evidence be determined in advance of the trial.
2 Further to order 1, a ruling pursuant to s.98 or 101 of the Evidence Act 1995 that the Crown’s Coincidence Evidence not be admitted at the trial of each of the charges in the indictment.
3 An order pursuant to s.21 of the Criminal Procedure Act 1986 that the charges in the indictment, other than charges 6 to 9, be tried separately.”
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In the Court of Criminal Appeal’s judgment, Bathurst CJ at [10] stated:
“However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is…
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- Case
- [2012] NSWSC 409
- Decision Date
CaseChat Overview and Summary
The court found that coincidence evidence could indeed be admissible in such cases, provided that its probative value was significant and could not be reasonably explained away by alternative inferences. The reasoning of the court emphasised the importance of considering the totality of the circumstances in each case. The court held that while coincidence evidence alone may not be enough to prove insider trading, it can form part of a circumstantial case when considered alongside other evidence. The court stressed that the weight to be given to such evidence must be assessed on a case-by-case basis, taking into account the possibility of alternative explanations.
The High Court ultimately upheld the convictions of both appellants, finding that the trial judges had properly assessed the coincidence evidence in the context of the overall case. The court concluded that the evidence, when considered with other factors, was sufficient to establish that the appellants had access to inside information, leading to their convictions for insider trading. The judgments reinforce the principle that coincidence evidence can be a valuable tool in insider trading prosecutions, provided it is properly evaluated and weighed against other evidence in the case.
Orders
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Background
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Evidence
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Decision
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