R v Jacobson (Ruling No 3)
[2014] VSC 420
•2 September 2014
| ‘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: | 2 September 2014 |
DATE OF RULING: | 2 September 2014 |
CASE MAY BE CITED AS: | R v Jacobson (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 420 |
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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 – Admissibility of evidence.
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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 | Mr A Burns and Mr S Tovey | Markotich Lawyers |
HIS HONOUR:
In this matter Mr Burns, on behalf of the accused, has at this stage raised objection to some of the documents which the prosecution otherwise intended to adduce in evidence in the trial which is to commence next Monday.
I commence by again expressing my concern that these objections have been raised at such a late stage, given the fact that for quite some time I have been asking and encouraging the defence to state their objections to any evidence intended to be called at a stage which would enable the objections, if granted, to be dealt with by the Crown.
Notwithstanding that, Mr Rapke QC, who appears with Mr Winneke, has been able to deal with the objections today and I am able to rule on them.
I shall do so by reference to the exhibit numbers the documents were given in the voir dire which was held in this case earlier.
The first objection is to Exhibit X, which was an email from Tamara Newing to Richard Wade dated 3 March 2006. Mr Burns correctly concedes that the email is relevant. He argues, however, that it is unfair to admit it because a jury might infer that the accused was involved in the transactions referred to in the email.
Clearly, the document is relevant. It is part of the context evidence in relation to the manner in which Tamara Newing was involved in dealing with GTG shares. I do not consider the admission of it would be unfair. The jury, of course, will receive the standard directions on the drawing of inferences and I do not consider that there is any danger that they will involve themselves in untoward speculation in relation to this document.
The next document objected to is Exhibit Y, which was an email by Tamara Newing to Richard Wade dated 19 May 2006. In that email, Tamara Newing instructed Wade that all new purchases should be in her name rather than Palamine. Mr Burns objected to it. I must say, having had a read of the document now, I cannot even understand the objection. He seemed to consider that there should be no reference to at one stage dealings being transacted in the name of Palamine rather than Tamara Newing. However, that fact will be a necessary part of the narrative given by Wade and in fact the email in question seems to reverse that position and did so, to my recollection, quite quickly.
In any event, I would not consider the jury would draw any adverse inference against the accused in respect of the use of Palamine. If there was an apprehension on behalf of the defence that the jury would do that, such an inference could be easily negated by the defence in cross‑examination, of the informant, adducing evidence that Palamine is a registered company and that the registered officer and shareholder was Geoffrey Newing. In my view, there is no substance to the objection; the document is admissible.
The next document objected to is Exhibit AC which is an email from Tamara Newing to Wade dated 23 February 2006 in respect of the trading by Tamara Newing in GTG shares at that time. Mr Burns objects to the evidence on the ground that it is too remote from the transactions and particularly the conspiracy which is the subject of this case, and which commenced on 16 May. However, he has conceded that other evidence relating to antecedent dealings by Tamara Newing with Wade are admissible and in particular he conceded that Exhibit AD is relevant and admissible, that document being an instruction given by Tamara Newing to Wade on 1 March.
For reasons I have already stated, the dealings between Tamara Newing and Wade before 16 May are relevant and admissible and, indeed, no objection has been taken on behalf of the accused to those dealings, and correctly so. The document under objection, that is Exhibit AC, is not too remote and in my view, it is clearly admissible.
The next documents objected to are Exhibits AF, AG and AH, being, respectively, emails from Tamara Newing to Rocco Musumeci, dated 2 October, 3 October and 5 October. Mr Burns objects to the documents being admitted on the basis that the accused was not copied in on them. He, however, correctly accepts that the documents are relevant and indeed they are centrally relevant, namely being instructions given by Tamara Newing to Rocco Musumeci in relation to trading on the days in question.
Mr Burns submitted that a jury would speculate as to the accused's role in relation to those emails because Dr Jacobson is the accused man in this case. With great respect, I find that argument to be entirely illogical. Juries are instructed as to the burden of proof and the presumption of innocence, and they are given instructions not to speculate. The type of reasoning which Mr Burns attributes to the putative jury is, in my view, the type of reasoning no jury, in my experience, has ever indulged in. The documents are admissible.
The next document objected to is Exhibit AJ, being an email by Wade to Tamara Newing dated 21 July 2006 entitled “Hard Yakka today”. Mr Burns objects to the document on the grounds that it is irrelevant. I reject that objection. Having referred to paragraphs 302 and following of the summary of the prosecution opening in this case, it is clear that that document was one in a series of bids for GTG shares and instructions given by Tamara Newing to Wade in relation to bidding for GTG shares on that date. Therefore, the document is admissible.
Mr Burns next objected to Exhibit AT and AV, being emails by Geoffrey Newing to Tamara Newing dated 28 September 2004 and 24 May 2005 on the grounds that they are irrelevant. Mr Rapke has asked that I not rule on those documents at this stage. He will not open them but he wishes to consider his position. I can understand the position of the prosecution in relation to those documents, I think they should be given further consideration as to whether they are admissible. Therefore, I shall at this stage decline to rule on them.
The next document is Exhibit AY, which is an email from Geoffrey Newing to the accused dated 11 May 2006. Mr Burns correctly accepts that that document is relevant, but he objects on the basis that the transaction suggested by Newing in it is in some way inappropriate and therefore the jury might draw some adverse inference against the accused by reason of Newing making such a proposal to him.
It is, I think, quite clear, as Mr Rapke has pointed out, that the document in question is centrally relevant. It is part of a chain of documents in which those associated with the accused were expressing concern as to his financial position and in particular as to the pressures that the margin calls made by Opes Prime were placing on the accused at that time. It is in that context that the document of 11 May is important and relevant because it is, as I see it, part of the evidence that the prosecution wishes to adduce to illustrate the type of financial pressures operating on the accused at that time arising out of the decline in the price of GTG ordinary shares on the ASX.
I do not consider that the jury would be likely to draw any inference, even against Newing, in relation to the suggestion made in it. It does not seem to me to be a suggestion that in any way would cause a jury to view Newing in a poor light; but the fact that Dr Jacobson received that document, even if the jury were to take such a view of the proposal, would not, in my view, lead the jury to draw any adverse inference against the accused. Indeed, it is clear on the evidence that the proposal that was made by Mr Newing was not accepted by the accused.
In my view, there is no basis upon which the jury would draw any adverse inference against the accused in relation to that document and therefore it is admissible and it would not be unfair to the accused to admit it in evidence.
The next document to which objection is taken is Exhibit BA, which is the email from Mr Newing to the accused dated 16 May 2006, which the prosecution would submit was the foundation, effectively, of the conspiracy that is charged in count 1 on the indictment. Mr Burns accepts, as he must, that the document is relevant; indeed, it is centrally so. He objects to it on the basis that Mr Newing will not be called by the prosecution. In his evidence in the voir dire, Newing at one stage stated that he was on a frolic of his own when he sent that email to the accused and the argument is that if the document were admitted and Mr Newing not called, then the jury would not have the benefit of the evidence of Mr Newing to that effect.
In my view, the objection is misconceived. The document is centrally relevant. Even if Mr Newing was on a frolic of his own, the question is not what motivated him to send the document, but rather the critical question is whether it was acted on. That issue is to be determined in the context of all of the facts, but particularly the events that immediately followed the receipt of that document by the accused man.
In my view, the document is relevant. There is no unfair prejudice to the accused in the fact that Newing is not called. And I therefore shall admit it in evidence.
The final document to which objection is taken is Exhibit BH, which was a text message sent by Tamara Newing to Geoffrey Newing dated 3 August 2006. Mr Burns has objected to the document on the basis that it is irrelevant. However, as Mr Rapke has pointed out, it is one document in a chain of emails that was sent between the parties on that day and it also must be viewed in the light of a transaction in which Wade purchased 10,000 GTG shares at 33.5 cents on behalf of Tamara Newing on that day. The document is clearly relevant and will be admitted in evidence.
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