R v Jacobson (Ruling No 1) - [2014] VSC 188

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. S CR 2011 0054

THE QUEEN

MERVYN JACOBSON

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JUDGE:	Kaye J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2014
DATE OF RULING:	2 May 2014
CASE MAY BE CITED AS:	R v Jacobson (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2014] VSC 188

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CRIMINAL LAW – Evidence – Conspiracy to take part in transactions contrary to s 1041A of the Corporations Act 2001 (Cth) – Application by prosecution to take evidence before trial from alleged co-conspirators – Criminal Procedure Act 2009 (Vic) s 198 – Objection by adult daughter to giving evidence against father – Evidence Act 2008 (Vic) s 18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC and Mr C Winneke	Solicitor to the Director of Public Prosecutions (Cth)
For the Accused	Mr A Burns	Markotich Lawyers
For Mrs Tamara Newing	Mr N Clelland QC	Minter Ellison
For Mr Geoffrey Newing	In Person

HIS HONOUR:

In this case, the trial has been fixed for hearing on 8 September next. The prosecution applies, under s 198(1) of the Criminal Procedure Act 2009 (Vic), to take evidence before the trial from two witnesses, namely, Tamara Newing (the accused’s daughter) and Geoffrey Newing (the accused’s son‑in‑law).

The accused is charged, on indictment, with two counts of conspiracy to take part, and 33 substantive counts of taking part, in transactions which had, or were likely to have, the effect of creating an artificial price for trading in financial products, contrary to s 1041A of the Corporations Act 2001 (Cth). The charges relate to a series of transactions in which shares were purchased in Genetic Technologies Ltd (‘GTG’) between 16 May 2006 and 2 November 2006.

At the time of the offences, the accused held in excess of 150 million ordinary shares in GTG, which represented 41.45 per cent of the issued share capital in that company. On 18 March 2005, the accused had exercised 49 million options to purchase shares in GTG at 20 cents per share. In order to finance that transaction, he entered into a Lending and Borrowing Facility with Opes Prime in the sum of $11.4 million (approximately). As security for that facility, the accused lodged shares in GTG with a trustee. Under the terms of the facility, Opes Prime was entitled to make margin calls on the accused, requiring him to provide further security. Those calls were to be calculated according to a loan‑to‑value ratio of 25 per cent, which was based on the daily closing price of GTG shares.

In May 2006, the accused entered into two further Securities and Borrowing agreements with Chimeara Capital Limited, by which he increased his borrowings to in excess of $14 million. The facilities provided by Chimeara operated in the same manner as the facility provided by Opes Prime, save that the loan‑to‑value ratio, in respect of the Chimeara facilities, was 30 per cent.

In its simplest form, the basic allegation made…

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 Jacobson (Ruling No 1)

Details

AGLC: R v Jacobson (Ruling No 1) [2014] VSC 188
Case: [2014] VSC 188
Decision Date: 2 May 2014

CaseChat Overview and Summary

The case of R v Jacobson was heard in the County Court of Victoria, where the defendant was charged with conspiracy to take part in transactions contrary to section 1041A of the Corporations Act 2001 (Cth). The prosecution sought to take evidence before trial from alleged co-conspirators, seeking to rely on sections 198 of the Criminal Procedure Act 2009 (Vic) and section 18 of the Evidence Act 2008 (Vic). The application was opposed by the defendant's adult daughter who objected to giving evidence against her father. The primary legal issue before the court was whether the court could compel a co-conspirator to give evidence against a relative, specifically, the defendant's daughter. The court had to balance the need for the prosecution to present a robust case against the potential for compelling a witness to testify against a close family member, which could lead to family conflict and distress.
The court determined that compelling a witness to testify against a close family member was an exceptional circumstance and required careful consideration. The court acknowledged the importance of ensuring that the prosecution could access relevant evidence, but also recognised the potential harm that could be caused by compelling a witness to testify against a family member. Ultimately, the court found that the potential harm to the witness and the family outweighed the need for the prosecution to present a robust case. The court concluded that compelling the daughter to testify against her father would be an exceptional circumstance and declined the prosecution's application. The court's decision was based on the specific circumstances of the case and the potential harm that could be caused by compelling the witness to testify against her father. The court's decision highlights the need for a balanced approach when considering whether to compel a witness to testify against a family member.

Orders