| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2011 0054
| THE QUEEN |
| v |
| MERVYN JACOBSON |
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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…
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- AGLC
- R v Jacobson (Ruling No 2) [2014] VSC 368
- Case
- [2014] VSC 368
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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