R v Jacobson (Ruling No 6)
[2014] VSC 561
•17 October 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: | 17 October 2014 |
DATE OF RULING: | 17 October 2014 |
CASE MAY BE CITED AS: | R v Jacobson (Ruling No 6) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 561 |
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CRIMINAL LAW ‑ Evidence ‑ Accused intending to call character evidence ‑ Whether prosecution would be permitted to respond by evidence of other uncharged acts ‑ Advance ruling ‑ Evidence Act 2008 (Vic) ss 110, 112, 192, 192A.
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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 prosecution has closed its case. The accused, Dr Jacobson, has given evidence and has called one other witness. Mr Sam Tovey, who appears with Dr Wilson QC and Mr Burns on behalf of the accused, has now sought that I give an advance ruling, under s 192A of the Evidence Act 2008, as to whether I would permit the prosecution to adduce evidence of uncharged acts against the accused, if the accused were to call a witness to give evidence as to his good character.
The accused is charged on indictment with two counts of conspiracy to take part in, and 33 substantive counts of taking part in, purchases of shares in Genetic Technologies Limited on the ASX which were likely to have the effect of creating or maintaining an artificial price for trading in GTG shares on the ASX. Those charges relate to the purchase of GTG shares by the accused, by his daughter Tamara and by his son‑in‑law Geoffrey Newing between 16 May and 3 November 2006.
Before the jury was empanelled I ruled that evidence as to a series of purchases of GTG shares in 2005 by Tamara Newing on her National Online Trading Account (the “NOLT account”) was not admissible. The prosecution had sought to adduce that evidence as relevant background or context evidence in the trial. I held that the evidence had probative value to that effect, but that the probative value of it was outweighed by the potential prejudicial effect of the evidence if it was adduced.
However, due to some evidence given by the accused during his evidence‑in‑chief, I permitted the prosecution to cross‑examine the accused as to a limited number of email messages between himself and Tamara Newing relating to those transactions. It is significant that those emails formed but a small part of some of the evidence which the prosecution now wishes to adduce, should character evidence be led on behalf of the accused.
In addition, the prosecution has led confined evidence of other uncharged acts, namely, purchases by the accused of GTG shares through the share broker Tolhurst Noall on 15 May 2006. The question, which I must now decide, is whether the prosecution would be entitled to lead significantly more extensive evidence about trading by, or on behalf of, Dr Jacobson through Tolhurst Noall for the period 10 March 2006 to 31 May 2006, if the accused were to call the proposed character witness.
For the purpose of determining the question raised under s.192A, Mr Tovey led evidence from the proposed character witness, Dr Mervyn Cass, on a voir dire. Dr Cass has known, and been a good friend of, the accused since university days back in the mid-1960s and he has remained a friend of the accused for some 55 years. Dr Cass, in his evidence on the voir dire, stated that he had no reason to doubt the honesty of the accused. He said that people, who have done business with him, including the shareholders in GTG, had no reason to doubt his honesty. Dr Cass outlined some of the public work in which the accused has been involved. It includes work involving the preservation of endangered species in Victoria, for which he has been recognised. It also includes that the accused was on the board of directors of the Melbourne City Opera Trust and that he had, back in the 1970s, been a member of the General Practitioners Society. Dr Cass also gave evidence as to work performed by the accused overseas. In particular, he stated that in Africa, the accused had been involved in protecting endangered species, that he had been honoured by the British House of Lords for assisting the British Government in relation to the outbreak of “mad cow” disease, and that in Colorado he had been actively involved in protecting and preserving a species of wolves in the Rocky Mountains.
Dr Cass stated that as a result of his work, the accused has been honoured by President George W. Bush and he has also been recognised by the University Of Colorado. In addition, Dr Cass stated that the accused has been acknowledged internationally for his work in enhancing the status and reputation of biotechnical companies on a global basis.
Dr Cass stated that, on a personal level, he considered that the accused man has been extremely generous both to his children, and to his wife, from whom he has been estranged. He regards the accused as an honourable friend.
The evidence, which the prosecution would seek to adduce if that evidence were called, was outlined to me by Mr Winneke, who appears with Mr Rapke, Queen’s Counsel, on behalf of the prosecution. The evidence falls into two categories. Firstly, the prosecution would seek to adduce more extensive evidence as to the NOLT dealings by Tamara, which, the prosecution would submit, can be demonstrated were carried out with the knowledge and acquiescence of the accused. In particular, the prosecution would seek to prove that, during the period that I have mentioned, Tamara placed some 96 bids for GTG shares via NOLT on the ASX trading platform. Pursuant to those bids, she purchased in excess of 1 million GTG shares. Those acquisitions represented 4 per cent of the total volume of GTG shares traded in that period, but represented 24 per cent of all price increases in GTG shares, and 58 per cent of late price increases in GTG shares, during that period.
The prosecution would also seek to prove that because of concerns as to Tamara Newing’s trading in shares through her NOLT account, those administering that account removed the “straight through” trading facility from her account which had allowed her to trade directly from her computer without any active involvement of a broker.
The prosecution would also seek to establish that, subsequently in January 2006, NOLT, by letter, advised Tamara Newing that due to the continued nature of her trading activity, NOLT would decline to act on any instructions from her relating to GTG shares.
In addition to the NOLT trading, as I stated, the prosecution would also seek to adduce evidence as to trading by or on behalf of the accused through Tolhurst Noall between 10 March 2006 and 31 May 2006, if the accused were to call evidence from Dr Cass of the nature which I have outlined. In particular, the prosecution would seek to establish that in the period between 10 March and 27 April the accused purchased some 740,000 shares on the account of and in the name of one Priscilla Bond; that between 27 April and 15 May he purchased 585,000 GTG shares on his own account, including the 150,000 shares which were purchased on 15 May; and that between 16 May and 31 May he purchased a further 230,000 GTG shares in the name of Gail Bratz. I interpolate that Gail Bratz is a close personal friend of the accused.
The prosecution seek to establish that those purchases, while constituting 12 per cent of the total volume of GTG shares purchased during that period, were responsible for 33 per cent of all late price increases during the period; that 50 per cent of the price increases, caused by the trading to which I have referred, occurred in the last 20 minutes of trading; and that the trading, to which I have referred, constituted the last trade on 33 per cent of the 57 days in which trading took place on the ASX. That evidence would be led from Mr Dent.
In discussion with Mr Winneke, I canvassed the witnesses from whom the evidence, to which I have just referred, would need to be led. It would appear that to adduce the evidence in relation to the NOLT dealings, the prosecution would need to call evidence from Mr Flynn as to the actual transactions; from Mr Dent as to the effect of those transactions; from Ms Karen Phillips as to payments made by the accused to Tamara to fund those transactions; and, quite possibly, from a witness from NOLT as to the termination of Tamara Newing’s facilities through that platform.
In order to prove the Tolhurst Noall dealings, the prosecution would need to call at least Mr Papa, who has already given evidence, and would also need to adduce evidence from Mr Dent.
That then is the evidence which the prosecution seek to adduce if leave were given to the prosecution to reopen its case to do so, in the event that Dr Cass was to give evidence of the type that I have outlined.
Mr Tovey submitted that I should rule that the prosecution should not be entitled to call any of that evidence, if Dr Cass were to give character evidence on behalf of the accused. He submitted, firstly, that that evidence, to which I have referred, relating to the NOLT transactions and the Tolhurst Noall transactions, does not logically tend to rebut the evidence that would be given by Dr Cass on behalf of the accused.
Pausing there, I do not agree with that submission. Mr Tovey did submit that there is sufficient evidence as to trading in shares in GTG without requiring the evidence relating to NOLT and to Tolhurst Noall. However I do not consider that that is the correct approach. In my view, if the jury were to be apprised of the evidence relating to the NOLT dealings and the Tolhurst Noall dealings, and if the jury were to accept what the prosecution says about those dealings, namely, that the accused was involved in them, and that those dealings were directed to manipulating the price of GTG shares on the ASX, the jury would be entitled to consider that that evidence demonstrated that the accused is not a person of good character as portrayed by Dr Cass.
Mr Tovey’s second submission, which was his principal submission, was that I should nevertheless rule that the evidence relating to NOLT and Tolhurst Noall dealings would not be admissible under s 137 of the Evidence Act, because the potential prejudicial effect of that evidence would significantly outweigh the probative value of any evidence sought to be adduced on behalf of the accused as to his good character, and the probative value of any evidence given in rebuttal of it. The evidence as to the Tolhurst Noall and NOLT transactions comprises evidence of uncharged acts. Those acts are not conceded and would be put in issue. They would be put before the jury late in the trial and there is a significant risk that, in those circumstances, the jury might give that evidence a disproportionate consideration and give to it disproportionate weight than it otherwise deserved.
Mr Tovey also submitted that the introduction of the evidence, as to the NOLT transactions and the Tolhurst Noall transactions, would involve a trial within a trial late in the trial, which would be an unnecessary distraction to the jury from the principal issues in the case. He submitted that it would be difficult, if not possible, for me to give an appropriate direction to the jury that that evidence was only to be considered in relation to the issues of the accused’s character.
In response, Mr Winneke submitted that, if the accused were to call evidence by Dr Cass in relation to the accused’s character, the prosecution should be entitled to call the evidence relating to the NOLT and Tolhurst Noall transactions. He submitted that the credibility of key witnesses is very much in issue. In particular, the defence has attacked the credibility of a key Crown witness, namely, Rocco Musumeci, and in his evidence, both in‑chief and in cross‑examination, Dr Jacobson implicitly attacked the credit of Mr Anthony Flynn, who is in effect the informant in the case.
Therefore, Mr Winneke submitted that issues of the credibility of the witnesses who are in dispute is very much a central issue for the jury to consider. He submitted that in that light, the evidence of Dr Cass, if unrebutted, would be of significant advantage to the accused, in circumstances in which the Crown were not permitted to adduce evidence which would significantly and logically rebut that evidence.
In addition, Mr Winneke submitted that the proposed evidence on behalf of the prosecution would significantly rebut the inference, which would otherwise be drawn from the character evidence to be adduced on behalf of the accused, namely, that the accused is the kind of person who would not commit the crimes with which he has been charged.
Section 110 sub‑s (2) and sub‑s (3) of the Evidence Act permit evidence to be led as to an accused’s character, where the accused himself has adduced evidence to prove that he is a person of good character, either in a particular respect or generally. Section 112 of the Act provides that an accused must not be cross‑examined about such matters unless the court gives leave under s 192 of the Act.
The question, which I need to deal with, is if the accused were to call Dr Cass to give the evidence which I have outlined, whether the prosecution would be permitted to reopen its case and to adduce the evidence as to the NOLT and Tolhurst Noall transactions. As indicated in argument, and Mr Winneke quite properly did not argue to the contrary, I consider it entirely appropriate that I be asked to give an advance direction now under s 192A. In my view, the procedure provided for under s 192A, in the issues of this case, is quintessentially suited to the type of ruling sought by Mr Tovey.
Notwithstanding that I am delivering this ruling in advance of the evidence being adduced from Dr Cass, the only appropriate way with which I can deal with this issue is to consider it as if, hypothetically, Dr Cass had already given the evidence, which I heard on the voir dire, before the jury, and thus that I was then considering an application by the prosecution to reopen its case to call the evidence relating to the NOLT and Tolhurst Noall transactions.
In that context, ss 135 and 137 of the Evidence Act would be applicable, and the issue, which I would need to decide, is whether the probative value of the evidence sought to be elicited by the prosecution would be outweighed by the danger of unfair prejudice to the accused.
In considering the potential probative value of the evidence to be called on behalf of the prosecution, in this type of circumstance, I must consider the potential probative value of Dr Cass’s evidence on behalf of the defence, for it is that evidence which the prosecution seeks to rebut. See Huges v The Queen[1].
[1][2013] VSCA 338 at paragraphs 31‑32, Justice of Appeal Priest.
In the context of the present case, in my view, the character evidence, which is sought to be led from Dr Cass, while relevant, is not of particularly prominent significance in relation to the issues of the trial. I say that because of a combination of both the nature of the charges brought against the accused, and also the very large amount of detailed evidence that has already been put before the jury. While I have no doubt that the foreshadowed character evidence would support the defence case, both by buttressing the credibility of the accused and giving rise to an inference that he is not the type of person who would commit the crimes with which he has been charged, nevertheless, in light of the nature of the charges and the issues in the case, I do not consider that that evidence would be as significant as it might be in other cases.
On the other hand, I accept the submission by Mr Tovey that, if the evidence as to the NOLT and Tolhurst Noall transactions were now sought to be adduced, that would involve substantial unfair prejudice to the accused in the trial of the case against him. In particular, my concern is that the evidence, sought to be adduced, by the prosecution, would travel well beyond rebutting the character evidence given on behalf of the accused by Dr Cass. It would involve a large body of evidence as to contemporaneous uncharged acts against the accused.
In light of the issues in the trial, that evidence would thus add to, and form a considerable part of, the context or background to the transactions that are the subject of the charges against the accused. While I could give an effective tendency or propensity direction in relation to the evidence, which would suitably negative the danger of the jury resorting to that type of impermissible reasoning, nevertheless, because of the dimension of the evidence, the late stage of the trial at which it would be introduced, and the manner in which it would be introduced, it would be difficult, if not logically impossible, to confine the jury’s consideration of the evidence to issues of character. Rather, I consider it would be used by the jury as background or context evidence of a considerable dimension, which, introduced late in the trial, could well be given disproportionate significance in the jury’s consideration of the issues that are central to the determination of the guilt of the accused on the 35 charges brought against him.
In addition to that, I am concerned that, if the evidence as to the NOLT and Tolhurst dealings were now introduced, it would, in the words of Mr Tovey, create a trial within a trial, which of itself would prolong and complicate what has already been a very detailed trial of a number of different issues. If that evidence were to be adduced, the prosecution would need to call a large body of evidence of a similar type which has already been called in relation to dealings in shares, and the effect of those dealings by reference to IRESS snapshots and add other pieces of evidence.
I have been informed that that evidence would be put in issue, and thus it may well be that Dr Jacobson would need to be called for further evidence or cross‑examination. All that process would involve a significant mini trial of an issue, which does not directly relate to the charges in question, but rather, would be raised by the prosecution to rebut the character evidence sought to be adduced on behalf of the defence.
In my view, the considerations that I have just referred to, and the potential prejudice to the accused flowing from them, substantially outweigh the probative value of the character evidence sought to be adduced from Dr Cass, and thus the probative value of the evidence sought to be adduced by the prosecution as rebutting the evidence as to good character. I recognise that in a sense this is forcing the prosecution to confront the evidence of Dr Cass with one hand tied behind its back, and that is unfortunate. Nevertheless, as I stated, I consider that I must place myself in the position as if, hypothetically, Dr Cass had already been called, and in those circumstances I do not consider that I would have permitted the prosecution to call the type of evidence, which Mr Winneke has referred to, in rebuttal, because of its potential prejudicial effect that I have outlined.
I accordingly rule that, if evidence is to be adduced from Dr Cass of the type which was outlined to me in the voir dire, I would not give leave to the prosecution to reopen its case to call evidence as to the Tolhurst Noall and NOLT dealings. I should, however, caution the defence that, if the evidence travelled relevantly beyond that or if other issues were raised on behalf of the defence beyond that, then the need may rise for me to reconsider this ruling.