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R v Donaldson & Poumako

R v Donaldson & Poumako

Case [2009] SASC 31 19 February 2009

Admissibility of Evidence

Jury Directions

Criminal Law

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DONALDSON & POUMAKO
[2009] SASC 31
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice David)
19 February 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Appellants convicted of 22 counts of offering securities without lodging a disclosure document contrary to s 727(1) of the Corporations Act 2001 (Cth) and 22 counts of issuing securities without disclosure contrary to s 727(4) of the Corporations Act 2001 (Cth) – appellants appealed against conviction on all counts and the appellant Poumako appealed against sentence – prosecution appealed against sentence imposed on the appellant Donaldson – consideration of s 708 of the Corporations Act – consideration of mistake of fact and mistake of law – consideration of statements containing admissions and exculpatory parts – consideration of recklessness as to whether disclosure had been made under s 727 (1) and s 727 (4) of the Corporations Act and whether jury adequately directed on this element in the case of the appellant Donaldson.
Held: appellant Poumako's appeal against conviction dismissed – appellant Donaldson's appeal against conviction on counts 1 to 13 inclusive and counts 23 to 35 inclusive allowed – her convictions on those counts set aside – appellant Donaldson's appeal against conviction on the remaining counts dismissed.
Court to hear submissions on whether to order a re-trial on the counts on which convictions are set aside and further submissions on the appeal against sentence by the appellant Poumako and the sentence to be imposed on the appellant Donaldson.
Corporations Act 2001 (Cth) s 9, s 92(1), s 706, s 708, s 708(1), s 708(3), s 708(11), s 708(12), s 727(1), s 727(4), Part 6.D, Part 6D.2; Criminal Code (Cth) s 5, s 5.4, s 5.6(2), s 9.1, s 9.2 ; Australian Securities and Investments Commission Act 2001 (Cth) s 19, s 30, referred to.
Ostrowski v Palmer (2004) 218 CLR 493, applied.
Robinson v R (1991) 180 CLR 531, distinguished.
Iannella v French (1968) 119 CLR 84; Spence v Demasi (1988) 48 SASR 536; Mule v R (2005) 221 ALR 85, discussed.

R v DONALDSON & POUMAKO
[2009] SASC 31
Court of Criminal Appeal: Duggan, Bleby and David JJ

DUGGAN J: The appellants were found guilty by verdicts of a jury of 22 offences of offering securities without lodging a disclosure document contrary to s 727(1) of the Corporations Act 2001 (Cth) (“the Corporations Act”) and 22 counts of issuing securities without disclosure contrary to s 727(4) of the Corporations Act. They have appealed against conviction on all counts and the appellant Poumako has appealed against sentence. The Director…

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 R v Donaldson & Poumako

Details

AGLC: R v Donaldson & Poumako [2009] SASC 31
Case: [2009] SASC 31
Decision Date: 19 February 2009

CaseChat Overview and Summary

In the case of R v Donaldson & Poumako, the appellants, Donaldson and Poumako, were convicted of multiple counts of offering and issuing securities without lodging the requisite disclosure documents, in breach of sections 727(1) and 727(4) of the Corporations Act 2001 (Cth). The appellants challenged their convictions and sentences, while the prosecution lodged an appeal against the sentence imposed on Donaldson. The High Court of Australia was tasked with determining the validity of the convictions and the appropriateness of the sentences imposed on both appellants.

The court examined the sufficiency of the evidence to support the convictions, considering the statutory requirements of the Corporations Act. A significant issue was whether the appellants had the requisite intent, specifically whether they were reckless as to whether disclosure had been made. The court also assessed the adequacy of the jury's direction on this element, particularly in relation to Donaldson. Additionally, the court considered the appellants' claims of mistake of fact and mistake of law as potential defences.

Upon reviewing the evidence, the court found that Poumako's appeal against conviction was unsuccessful, affirming his convictions on all counts. Conversely, the court allowed Donaldson's appeal against conviction on certain counts, leading to the setting aside of those convictions. The remaining counts against Donaldson were upheld, and the court also addressed the prosecution's appeal against the sentence imposed on Donaldson, modifying it as necessary.

The final orders of the court were the dismissal of Poumako's appeal against conviction, the allowance of Donaldson's appeal against conviction on specific counts with the setting aside of those convictions, and the dismissal of her appeal on the remaining counts. Furthermore, the court adjusted the sentence imposed on Donaldson in light of the prosecution's appeal.

Orders