JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2014
DATE OF RULING:	8 August 2014
CASE MAY BE CITED AS:	R v Jacobson (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 368

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CRIMINAL LAW – Two counts of conspiracy to contravene s 1041A of Corporations Act 2001 (Cth) – 33 counts of contravening s 1041A of Corporations Act – Joinder of counts in one indictment – Severance – Admissibility of previous dealings as context evidence – Whether previous dealings admissible as tendency evidence – Cross-admissibility of evidence as context or tendency evidence – Elements of offences.

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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 (Commonwealth)
For the Accused	Dr J Wilson QC and Mr A Burns	Markotich Lawyers

HIS HONOUR:

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 or maintaining an artificial price for trading in financial products, contrary to s 1041A of the Corporations Act 2001 (Cth). The trial of those charges has been fixed for hearing on 8 September next. The accused applies to have the two charges of conspiracy heard separately to the 33 substantive charges.

Three issues have arisen for determination before trial. Those issues are:

(1)The accused applies to have the two charges of conspiracy heard separately to the 33 substantive charges.
(2)The accused objects to the admissibility of a series of transactions, which are referred to as the “NOLT” transactions, which took place in the period preceding the events that are the subject of charge 1 on the indictment.
(3)A question has arisen as to the correct formulation of the elements of the charges, and, in particular, as to the proper characterisation of the “fault” element, which the prosecution is required to prove.

The charges

The charges arise from a series of transactions, in which shares were purchased in Genetic Technologies Limited (“GTG”) between 16 May 2006 and 2 November 2006.

Charge 1 on the indictment alleges that the accused, between about 16 May 2006 and 31 October 2006, conspired with Geoffrey Newing (his son-in-law) and Tamara Newing (his daughter) to take part in transactions, consisting of purchases of shares in GTG on the Australian Securities Exchange (“ASX”), which were likely to have the effect of creating an artificial price, or of maintaining at a level that is artificial a price, for trading in securities of GTG on the ASX (“the first conspiracy”).

Charges 2 to 34 on the indictment each allege that, on various dates between 14 September 2006 and 29 September 2006, the accused took part in transactions, consisting of purchases of specific quantities of shares in GTG on the ASX which had, or were likely…

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 2)

Details

AGLC: R v Jacobson (Ruling No 2) [2014] VSC 368
Case: [2014] VSC 368
Decision Date: 8 August 2014

CaseChat Overview and Summary

The case of R v Jacobson (Ruling No 2) before the High Court involved the accused, Jacobson, who faced two counts of conspiracy to contravene section 1041A of the Corporations Act 2001 (Cth) and 33 counts of contravening the same section. The nature of the dispute centred around the joinder of these charges in one indictment and the admissibility of evidence related to previous dealings between the parties as context or tendency evidence.

The legal issues the court was required to decide included whether the counts should be severed and tried separately, the admissibility of evidence concerning previous dealings between the parties, and the applicability of such evidence as context or tendency evidence. Additionally, the court had to consider the elements of the offences charged under section 1041A of the Corporations Act.

The court's reasoning focused on the admissibility of evidence related to previous dealings as context or tendency evidence. The court held that such evidence was relevant and necessary to understand the circumstances surrounding the charged offences. The court further determined that the evidence was admissible as both context and tendency evidence, as it provided valuable insights into the nature of the relationship between the parties and the events leading to the alleged offences. The court also considered the elements of the offences and ruled on the joinder of the counts, ultimately deciding that they should be tried together. The court's outcome was that the evidence in question was admissible, and the counts could be joined in one indictment.

The final orders of the court included the admission of the evidence related to previous dealings as both context and tendency evidence, the joinder of the counts in one indictment, and the direction that the case proceed to trial on the joined charges. The court's decision provided clarity on the admissibility of evidence in complex corporate criminal cases and the appropriate handling of multiple charges in a single indictment.

Orders