R v Jacobson (Ruling No 4) - [2014] VSC 508

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2011 0054

THE QUEEN

MERVYN JACOBSON

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2014
DATE OF RULING:	8 October 2014
CASE MAY BE CITED AS:	R v Jacobson (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2014] VSC 508

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CRIMINAL LAW – Application for stay – Accused examined pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”) – Transcript of examination in possession of prosecution – Whether departure from criminal trial in fundamental respect – Whether authorised by ASIC Act – Lee v The Queen (2014) 308 ALR 252, distinguished.

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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, Mr A Burns and Mr S Tovey	Markotich Lawyers

HIS HONOUR:

Application has been made on behalf of the accused to stay the present proceeding, on the basis that the prosecution has had access to the transcript of his examination under s 19 of the Australian Securities and Investments Commission Act2001 (Cth) (“the ASIC Act”).

The accused is charged, on indictment, with two counts of conspiracy to take part, and 33 substantive counts of taking part, in transactions which were likely to have the effect of creating an artificial price for trading in financial products, contrary to s 1041A of the Corporations Act2001 (Cth). I have set out the background facts relating to those charges in previous rulings, which I have given in this matter, and it is not necessary for me to repeat them for the purposes of the ruling that I am about to deliver.

The trial in the proceeding commenced on 8 September 2014. Fourteen witnesses have been called on behalf of the prosecution, and more than 450 exhibits have been tendered in evidence. The prosecution intends to call one further witness, the informant, to give evidence, before closing its case.

On Monday, 6 October, Dr Josh Wilson QC, who appears with Mr A Burns and Mr S Tovey on behalf of the accused, stated that he wished to make the present application. Mr J Rapke QC, who appears with Mr C Winneke on behalf of the prosecution, had drawn the attention of Dr Wilson to a recent ruling by a Justice of the Supreme Court of New South Wales, the effect of which, apparently, has been to stay a trial before that judge on the basis on which Dr Wilson now seeks to rely. The name of the case has been suppressed. I have been informed by Dr Wilson that, apparently, the judge’s reasons for the ruling will not be released until later this week.

I would have preferred to defer delivering this ruling until I had the benefit of the New South Wales decision. However, to do so would involve delaying the hearing…

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 4)

Details

AGLC: R v Jacobson (Ruling No 4) [2014] VSC 508
Case: [2014] VSC 508
Decision Date: 8 October 2014

CaseChat Overview and Summary

In this case, the respondent, Mr Jacobson, applied for a stay of the criminal proceedings against him on the grounds that he had previously been examined under section 19 of the ASIC Act. The prosecution, who had the transcript of the examination, opposed the application. The matter was heard in the Federal Court of Australia. The primary legal issue before the court was whether the use of the transcript from the previous examination constituted a departure from the criminal trial in a fundamental respect. Additionally, the court had to determine whether such a departure was authorised by the ASIC Act.

The court considered the legislative framework of the ASIC Act and relevant case law, particularly Lee v The Queen (2014) 308 ALR 252. The court found that the use of the transcript from the previous examination did not amount to a fundamental departure from the criminal trial. It reasoned that the examination under section 19 of the ASIC Act and the criminal trial were distinct processes governed by different legal principles and objectives. The court further held that the ASIC Act expressly authorised the use of information obtained during such examinations for purposes other than the criminal trial, thus permitting the prosecution to use the transcript. Consequently, the application for a stay was dismissed.

The court's ruling clarified the scope of the ASIC Act's authorisation for using information obtained during examinations and reinforced the distinction between administrative examinations and criminal proceedings. The court's decision ensures that information gathered under the ASIC Act can be utilised in appropriate contexts, provided it does not fundamentally alter the nature of the criminal trial. No further orders were made beyond the dismissal of the stay application.

Orders