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R v Joffe; R v Stromer

R v Joffe; R v Stromer

Case [2011] NSWSC 894 17 August 2011

Admissibility of Evidence

Insider Trading

Circumstantial Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Joffe; R v Stromer [2011] NSWSC 894
Hearing dates: 20, 21, 22 June, 19, 20 July 2011
Decision date: 17 August 2011
Jurisdiction: Common Law
Before: Hall J
Decision:
In relation to the notice of motion filed on behalf of Mr Joffe on 11 March 2011 and the notice of motion filed on behalf of Mr Stromer on 11 March 2011, I make the following orders:-

(1) The evidence particularised in the table to the Notice of Coincidence Evidence dated 8 July 2011, being Table A entitled “Table of related events the subject of counts in the Indictment” is admissible pursuant to s.98(1)(b) of the Evidence Act 1995.

(2) The evidence particularised in the table to the Notice of Coincidence Evidence dated 8 July 2011 being Table B entitled “Table of related events not the subject of counts in the Indictment” is not admissible under s.98(1)(b) of the Evidence Act.
(3) Leave is granted to any party to apply with respect to any consequential or ancillary orders.
Catchwords: EVIDENCE – insider trading offences charged under s.1043A of the Corporations Act 2001 (Cth) – 10 counts charged against two accused – applications for orders determining admissibility of evidence in the Crown case particularised in a Notice of Coincidence Evidence being evidence in relation to each of the counts charged against each accused and evidence in relation to three uncharged maters – orders sought for separate trial of some charges – ADMISSIBILITY OF EVIDENCE – s.98(1)(b) and s.100(2) of the Evidence Act – approach to be taken when assessing “significant probative value” of coincidence evidence – meaning of “probative value” – distinction between probative value under s.98(1)(b) and actual probative evidence at trial – whether in evaluating evidence under s.98(1)(b) alternative rational inferences or explanations to those contended for by the Crown must be evaluated and assessed so as to determine whether the inferences relied upon by the Crown have greater strength than the alternative inferences – approach to be taken in a circumstantial evidence case – proof of facts in issue by inferential reasoning.
Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1900
Criminal Law Consolidation Act 1935 (SA)
Criminal Procedure Act 1986
Evidence Act 1995
Jury Act 1977
Cases Cited: Adam v R [2001] HCA 57; (2001) 207 CLR 96
Attorney General's Reference (No 1 of 1983) [1983] 2 VR 410
Deutsch v The Queen [1986] 2 SCR 2
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v AB [2001] NSWCCA 496

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 Joffe; R v Stromer

Details

AGLC: R v Joffe; R v Stromer [2011] NSWSC 894
Case: [2011] NSWSC 894
Decision Date: 17 August 2011

CaseChat Overview and Summary

In the case of R v Joffe and R v Stromer, two defendants were charged with insider trading offences under section 1043A of the Corporations Act 2001. The Crown alleged ten counts against the two defendants, which involved the trading of securities based on confidential information. The defendants sought orders to determine the admissibility of evidence, specifically the coincidence evidence that the Crown intended to rely on. The evidence pertained to each of the counts charged against each defendant and related to three uncharged matters. Additionally, the defendants requested a separate trial for some of the charges.

The court was tasked with deciding the legal issues surrounding the admissibility of the coincidence evidence, specifically whether the evidence had significant probative value under section 98(1)(b) of the Evidence Act. The court also needed to determine the meaning of "probative value" and whether alternative rational inferences or explanations must be evaluated and assessed when considering the strength of the Crown's inferences. Furthermore, the court had to consider the approach to be taken in a circumstantial evidence case, particularly the proof of facts in issue by inferential reasoning.

The court found that the coincidence evidence had significant probative value and was admissible under section 98(1)(b) of the Evidence Act. The court clarified that when assessing the probative value of coincidence evidence, alternative rational inferences or explanations need not be evaluated and assessed to determine whether the Crown's inferences have greater strength. Instead, the court must determine whether the evidence has significant probative value in relation to a fact in issue in the proceeding. The court also provided guidance on the approach to be taken in a circumstantial evidence case, emphasising the importance of proof of facts in issue by inferential reasoning.

No specific final orders were mentioned in the text, but the court's decision on the admissibility of the evidence would likely have a significant impact on the proceedings against the two defendants.

Orders