R v Sage - [2009] VSCA 156

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 796 of 2007

THE QUEEN
	v
JOHN GERARD SAGE

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JUDGES:	VINCENT, NEAVE JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2009
DATE OF JUDGMENT:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 156
JUDGMENT APPEALED FROM:	[2007] VCC 1066 (Judge Shelton)

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Criminal law – Providing materially misleading information likely to induce the purchase of shares – Section 999 & 1041E Corporations Act2001 – Whether impermissible cross-examination by Prosecutor – Libke v R (2007) 230 CLR 559 – Real risk of jury making impermissible use of evidence – Inadequate direction given – Trial unfair in all the circumstances – Applicability of proviso in s 568(1) Crimes Act 1958 (Vic) – Appeal allowed – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Gilbert	Commonwealth Director of Public Prosecutions
For the Applicant	Mr D A Dann	James Dowsley & Associates

VINCENT JA

I have read the draft judgment of Coghlan AJA and agree that the appeal should be allowed and a retrial ordered for the reasons given by his Honour.

NEAVE JA:

I have had the opportunity to read in draft form the reasons of Coghlan AJA. I would also grant the application for leave to appeal and allow the appeal, for the reasons given by his Honour.

COGHLAN AJA:

The applicant, John Gerard Sage, was indicted before a judge and jury in the County Court of Victoria on 5 June 2007.

He was charged with twelve counts of providing materially misleading information likely to induce the purchase of shares (contrary to s 999 Corporations Act2001) and one count of providing materially misleading information likely to induce the purchase of shares (contrary to s 1041E Corporations Act2001).

The Counts on the indictment are from 1 August 1999 to February 2002.

At the conclusion of the evidence, counsel for the applicant made a successful no case submission with respect to counts 7, 9 and 13, and after submissions amendments were made to counts 5, 6 and 11. The applicant was subsequently convicted on the remaining 10 counts. He pleaded guilty to a further count which had been severed.

The applicant was sentenced to a total effective sentence of two years and ordered to serve nine months’ imprisonment before being released on a recognisance release order to be of good behaviour for two years. He also pleaded guilty to a count which had been severed at the commencement of the trial.

The applicant, by notice dated 20 September 2007, applied for leave to appeal against those convictions.

The full statement of grounds of appeal was filed in August 2003.

The grounds of appeal are:

GROUND 1: The trial of the Applicant miscarried as a result of the impermissible cross-examination of the Applicant by the Learned Prosecutor.

GROUND 2: The Learned Trial Judge erred in directing the jury that in determining whether the statement alleged to be materially misleading was likely to induce the…

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 Sage

Details

AGLC: R v Sage [2009] VSCA 156
Case: [2009] VSCA 156
Decision Date: 26 June 2009

CaseChat Overview and Summary

In the case of R v Sage, the appellant, Sage, was convicted in the County Court of Victoria for offences related to providing materially misleading information likely to induce the purchase of shares, in contravention of sections 999 and 1041E of the Corporations Act 2001. The prosecution was based on allegations that Sage had provided misleading information to potential investors, thereby facilitating their decision to purchase shares in a company. The appeal to the Court of Appeal focused on several legal issues, including the admissibility of certain evidence and the adequacy of the trial direction given to the jury.

The primary legal issues revolved around whether the prosecution had engaged in impermissible cross-examination, potentially leading to an unfair trial. The court considered whether the evidence elicited was such that there was a real risk the jury would make an impermissible use of it. Additionally, the court examined whether the trial judge had provided an adequate direction to the jury regarding the use of the evidence. The appeal hinged on whether these factors rendered the trial unfair under the proviso in section 568(1) of the Crimes Act 1958 (Vic).

The Court of Appeal found that the prosecution's cross-examination had indeed been improper, creating a real risk that the jury would misuse the evidence. The court held that the trial judge's direction to the jury was inadequate, thus compounding the unfairness of the trial. Consequently, the appeal was allowed, and a retrial was ordered. The court's reasoning was that the cumulative effect of these errors led to a trial that was unfair in all the circumstances, warranting a new trial to ensure a just outcome. The final orders included allowing the appeal and ordering a retrial of the appellant.

Orders