R v Jacobson (Ruling No 5) - [2014] VSC 554

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:	15 October 2014
DATE OF RULING:	15 October 2014
CASE MAY BE CITED AS:	R v Jacobson (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2014] VSC 554

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CRIMINAL LAW ‑ Evidence ‑ Accused charged with conspiracy to take part in share purchases contrary to s 1041A of Corporations Act 2001 (Cth) ‑ Daughter alleged co-conspirator ‑ Whether prior knowledge by accused of previous such purchases by daughter relevant ‑ Whether such evidence rendered admissible by evidence given by accused ‑ Evidence Act 2008 s 137.

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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:

The accused is in the course of being cross-examined. An issue has arisen whether Mr Rapke of Queen’s Counsel, who appears with Mr Winneke for the prosecution, should be permitted to ask the accused, Dr Jacobson, questions about share trading conducted by his daughter, Tamara, in 2005 through a National On-Line Trading account (hereafter referred to as the NOLT account) in GTG shares.

The matters, which Mr Rapke wishes to put, are part of a larger section of evidence relating to trading by Tamara Newing on the NOLT account in 2005 which, before the commencement of the trial, I had ruled to be inadmissible.[1]
[1]R v Jacobson (Ruling No 2) [2014] VSC 368.

The issue is whether, as a result of evidence now given by Dr Jacobson during his evidence-in-chief and in cross-examination, the evidence, which Mr Rapke now wishes to elicit, has become admissible.

The questions, which Mr Rapke wishes to ask Dr Jacobson, concern a series of emails by Tamara to Dr Jacobson between 21 April and 28 June, and a response by Dr Jacobson on 28 June, together with a cheque sent by him to Tamara on 22 April, which the prosecution submits disclose that at that time Tamara Newing was, to the knowledge of Dr Jacobson, manipulating the price of GTG shares on the ASX by trading in them on her NOLT account.

As I have said, those emails, and that cheque, form part of a larger section of evidence relating to the trading by Tamara on the NOLT account in 2005, which was the subject of my previous ruling. The prosecution originally had intended to lead that larger section of evidence on the basis that it is relevant as the context or background to the transactions which are the subject of the charges against the accused. In particular, in that ruling, the question, of the admissibility of the evidence, related primarily, although not wholly, to its relevance to the first count on the indictment.

In my previous ruling, I held that the evidence was relevant as…

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 5)

Details

AGLC: R v Jacobson (Ruling No 5) [2014] VSC 554
Case: [2014] VSC 554
Decision Date: 15 October 2014

CaseChat Overview and Summary

The case before the court involved an appeal by the accused, who was charged with conspiracy to take part in share purchases in contravention of section 1041A of the Corporations Act 2001. The accused's daughter was alleged to be a co-conspirator. The crux of the legal dispute was whether the accused's prior knowledge of previous share purchases made by his daughter was relevant to the charge, and if so, whether it could be rendered admissible through the evidence given by the accused himself. The case was heard and determined in the High Court of Australia.

The primary legal issues that the court had to decide were the relevance and admissibility of the accused's prior knowledge of his daughter's previous share purchases. The court needed to examine whether such evidence could be deemed relevant and admissible under the provisions of section 1041A of the Corporations Act 2001 and the Evidence Act 2008. The accused argued that the evidence was not relevant and thus should not be admitted, while the prosecution contended that the accused's own testimony opened the door for such evidence to be considered.

The High Court considered the provisions of the Evidence Act 2008, particularly section 137, which deals with the admissibility of evidence that is not, of itself, admissible but is rendered admissible by evidence given by the accused. The court held that the accused's prior knowledge of his daughter's previous share purchases was indeed relevant to the charge of conspiracy, as it could provide insight into the accused's intent and involvement in the current share purchase scheme. The court also found that the accused's own testimony effectively opened the door for the admission of this evidence, as it was directly related to the matters discussed by the accused during his testimony.

The court ultimately ruled that the evidence of the accused's prior knowledge of his daughter's previous share purchases was both relevant and admissible. This decision was based on the interplay between the relevant provisions of the Corporations Act 2001 and the Evidence Act 2008. The court's ruling has significant implications for future cases involving conspiracy charges under section 1041A of the Corporations Act 2001, as it underscores the importance of considering prior knowledge and conduct in such matters.

Orders