R v Jacobson (Ruling No 6) - [2014] VSC 561

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:	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…

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 6)

Details

AGLC: R v Jacobson (Ruling No 6) [2014] VSC 561
Case: [2014] VSC 561
Decision Date: 17 October 2014

CaseChat Overview and Summary

In the matter of R v Jacobson, the parties involved were the Crown as the prosecutor and Jacobson as the accused. The dispute centred around the admissibility of character evidence that Jacobson intended to present in his defence. The Victorian Court of Appeal was tasked with determining whether the prosecution would be allowed to respond with evidence of other uncharged acts if Jacobson called such character evidence. This case revolved around an advance ruling under the Evidence Act 2008 (Vic).

The legal issues that the court had to address were primarily concerned with the rules governing the admissibility of character evidence and the potential for the prosecution to introduce evidence of uncharged acts in response. Specifically, the court had to consider sections 110, 112, 192, and 192A of the Evidence Act 2008 (Vic). These sections address the admissibility of character evidence, the circumstances under which the prosecution can respond to such evidence, and the relevance of uncharged acts.

The court's reasoning was rooted in the statutory provisions of the Evidence Act 2008 (Vic). It was established that the prosecution could introduce evidence of uncharged acts if Jacobson intended to call character evidence, in line with section 110. The court found that such evidence was not automatically excluded by section 112, which generally prohibits the introduction of evidence of the accused's bad character. The court also considered sections 192 and 192A, which provide the conditions under which the prosecution can respond to character evidence by presenting evidence of uncharged acts. The court concluded that the prosecution's ability to respond was contingent on the nature of the character evidence presented by Jacobson and whether the evidence of uncharged acts met the criteria for admissibility under the Act. Ultimately, the court determined that the prosecution could indeed respond with evidence of uncharged acts if Jacobson called character evidence, provided that such evidence was relevant and not excluded by any other provisions of the Act.

Orders