Joffe v The Queen; Stromer v The Queen - [2012] NSWSC 409

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 1995
Cases 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 528
Category: Procedural and other rulings
Parties: Regina (Crown)
Daniel Shayne Joffe (Accused)
Nathan Stromer (Accused)
Representation:
Counsel:
Crown: G Farmer/ J Paingakulam
Joffe: J Game SC/ G Bashir
Stromer: H Dhanji/ L Fernandez
Solicitors:
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

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).
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.”

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…

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.

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Details

Case: [2012] NSWSC 409
Decision Date: 18 May 2012

CaseChat Overview and Summary

In the High Court of Australia, the cases of Joffe v The Queen and Stromer v The Queen were consolidated and heard together. Both appellants were convicted of insider trading under the Corporations Law of Australia, in relation to the purchase of shares in the company, Pasminco Limited. The primary issue before the court was the admissibility of coincidence evidence in insider trading prosecutions. Specifically, the court had to decide whether such evidence could be used to infer that the appellants had access to information that was not publicly available.

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