R v Jost - [2002] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 99 of 2001

THE QUEEN

JAKOB HANS JOST

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 2002
DATE OF JUDGMENT:	1 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 198

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Criminal Law - Obtaining property by deception - Charge to jury - Whether jury sufficiently instructed on elements of offence - Whether charge sufficiently related legal principles to evidence, issues and defence case - Whether applicant conducting banking business without licence - Meaning of "banking business" for purposes of Banking Act 1959 (Cth) - Whether statutory definition altered meaning previously ascribed to term "banking business" - Crimes Act 1958 (Vic) ss. 73(12), (13), 81(1) - Banking Act 1959 (Cth) s. 7.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Lincoln	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G. Thomas	Victoria Legal Aid

WINNEKE, P.:

I will invite Chernov, J.A. to give the first judgment in this matter.

CHERNOV, J.A.:

The applicant, Jakob Hans Jost, who is now aged 65, was presented for trial in the County Court at Melbourne on 19 February 2001 on one count (count 1) of conducting a banking business between 9 June 1994 and 18 November 1998 contrary to s.7 of the Banking Act 1959 (Cth.) and on 47 counts (counts 2 to 48) of obtaining property by deception between 14 December 1990 and 22 October 1998 contrary to s.81(1) of the Crimes Act 1958. The applicant pleaded not guilty to all the counts. On 26 March 2002, after a trial occupying some 23 sitting days, the applicant was found guilty on all counts except one count of obtaining property by deception (count 44).

The sentencing judge heard a plea for leniency made on behalf of the applicant, who had no prior convictions, and on 27 April 2002 sentenced him to pay a fine of $7,000 in respect of his conviction on count 1 and to a total effective sentence of four years and six months' imprisonment in respect of the remaining counts on which he was convicted. His Honour directed that the applicant serve a minimum term of three years' imprisonment before becoming eligible for parole.

On 5 May 2001 the applicant applied for leave to appeal against his conviction. The grounds on which he then relied in support of his application were amended by leave of the Registrar granted on 23 October 2002. As a consequence, the three grounds on which he now relies are that the judge erred in the directions he gave to the jury in relation to "any intention to permanently deprive for counts 2 to 48"; that the verdicts were unsafe and unsatisfactory because his Honour failed in his charge sufficiently to "identify and relate the defence of the applicant to the circumstances in general, to particular counts and to particular elements of the offences"; and thirdly, that the verdict in relation to count 1 was unsafe and…

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 Jost

Details

AGLC: R v Jost [2002] VSCA 198
Case: [2002] VSCA 198
Decision Date: 1 November 2002

CaseChat Overview and Summary

In the matter of R v Jost, the respondent, a former financial adviser, was found guilty of obtaining property by deception, contrary to section 73(12) of the Crimes Act 1958 (Vic), and conducting a banking business without a licence, contrary to section 7 of the Banking Act 1959 (Cth). The case was heard in the Supreme Court of Victoria, where the respondent appealed against his conviction and sentence. The primary legal issues before the court were whether the jury was sufficiently instructed on the elements of the obtaining property by deception offence and whether the jury was adequately guided to relate the legal principles to the evidence, issues, and the defence case. Additionally, the court had to determine whether the respondent was conducting a banking business without a licence and whether the statutory definition of "banking business" under the Banking Act 1959 (Cth) altered the meaning previously ascribed to the term.

The court examined the charge to the jury and found that it sufficiently instructed the jury on the elements of the obtaining property by deception offence. The court held that the jury was adequately guided to relate the legal principles to the evidence, issues, and the defence case. The court also found that the respondent was not conducting a banking business without a licence, as the statutory definition of "banking business" under the Banking Act 1959 (Cth) did not alter the meaning previously ascribed to the term. The court concluded that the jury's verdict was not affected by any misdirection or non-direction of law.

The Supreme Court of Victoria dismissed the appeal against conviction and sentence. The court held that the trial judge's charge to the jury was sufficient in law and the jury's verdict was safe and satisfactory. The court further held that the statutory definition of "banking business" under the Banking Act 1959 (Cth) did not alter the meaning previously ascribed to the term. Therefore, the respondent was not conducting a banking business without a licence. Consequently, the appeal against conviction and sentence was dismissed, and the original conviction and sentence stood.

Orders