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Regina v J B Loiterton

Regina v J B Loiterton

Case [2005] NSWSC 905 13 September 2005

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Reported Decision:
54 ACSR 728

New South Wales

Supreme Court

CITATION:
Regina v J B Loiterton [2005] NSWSC 905

HEARING DATE(S): 15/12/04
17/12/04
21/02/05
14/03/05
24/03/05
29-30/03/05
1/04/05
21/04/05
22/04/05
10-11/05/05
17-20/05/05
10/06/05
14/06/05
21/06/05
23/06/05
26/08/05

JUDGMENT DATE :

13 September 2005

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF:
Kirby J

DECISION:
Sentenced to a term of imprisonment of 3 years commencing on 13 September 2005 and ending on 12 September 2008. Order that he be released on 12 March 2007 upon giving security in the sum of $10,000 without surety by recognisance to be of good behaviour during the balance of term.

CATCHWORDS:
Criminal Practice & Procedure - charge under s1311(1) of the Corporations Act 2001 (Cth) - making a misleading statement to Stock Exchange - plea of guilty - agreed he ought to have known misleading - issue whether knew - aged 65 years - investing public knowingly misled.

LEGISLATION CITED:
Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)

CASES CITED:
Shepherd v The Queen (1990) 170 CLR 573
De Simoni v The Queen (1981) 147 CLR 383
R v Williams [2005] NSWSC 315
Weininger v The Queen (2003) 212 CLR 629
R v El Rashid (unreported, NSW CCA, 7.4.95)
Siganto v The Queen (1998) 194 CLR 656
Cameron v The Queen (2002) 209 CLR 339
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Sharma (2002) 130 A Crim R 238
R v Atholwood (1999) 109 A Crim R 465
R v Maslen & Shaw (1995) 79 A Crim R 199
R v Hinton (2002) 134 A Crim R 286
R v Todd (1982) 2 NSWLR 517
R v Wright [1980] VR 593
R v Goward (unreported, NSW CCA 16.10.98)
R v Thompson [2003] VSCA 164
R v Williams (2005) 53 ACSR 534
R v Adler (2005) 53 ACSR 471
R v Cassidy [2005] NSWSC 410
R v Pantano (1990) 49 A Crim R 328

PARTIES:
Regina
John Barrie Loiterton

FILE NUMBER(S):
SC 2003/134

COUNSEL:
P W Neil SC (Crown)
M Ierace SC (Offender)

SOLICITORS:
Ms K Marinos - Cth DPP (Crown)
K Worthington (Offender)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Tuesday 13 September 2005

2003/134 REGINA v John Barrie LOITERTON
REMARKS ON SENTENCE

1 KIRBY J: On 29 June 2004, John Barrie Loiterton pleaded guilty before Davidson AJ to the following offence:

Corporations Act

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 Regina v J B Loiterton

Details

AGLC: Regina v J B Loiterton [2005] NSWSC 905
Case: [2005] NSWSC 905
Decision Date: 13 September 2005

CaseChat Overview and Summary

The case before the court involved a charge against J B Loiterton under section 1311(1) of the Corporations Act 2001 (Cth). The prosecution alleged that Mr Loiterton had made a misleading statement to the Australian Securities Exchange, which led to potential harm to the investing public. Mr Loiterton pleaded guilty to the charge but argued that while he ought to have known that his statement was misleading, he did not actually know it was misleading. The court was tasked with determining whether Mr Loiterton's knowledge of the misleading nature of his statement was a requisite element of the offence under section 1311(1), and if so, whether he possessed that knowledge.

The central legal issue the court had to resolve was whether the offence of making a misleading statement under section 1311(1) of the Corporations Act 2001 (Cth) required proof of actual knowledge on the part of the accused that the statement was misleading. The court needed to interpret the statutory language and consider whether the mens rea element of the offence was limited to recklessness or whether actual knowledge was necessary. Furthermore, the court had to weigh the potential implications of its decision on similar charges and the protection of the investing public.

The court concluded that the offence under section 1311(1) did not necessitate proof of actual knowledge on the part of the accused that the statement was misleading. Instead, recklessness sufficed for a conviction. The court held that the statutory language did not explicitly require actual knowledge, and the broader legislative intent was to protect the investing public from misleading statements, regardless of the accused's actual state of mind. Given that Mr Loiterton's plea of guilty acknowledged that he ought to have known his statement was misleading, the court found him guilty. The court also took into account Mr Loiterton's age and his responsibility to the investing public, emphasizing the importance of adhering to the highest standards of disclosure in financial communications.

The court ordered that Mr Loiterton be sentenced in due course, considering his guilty plea, the nature of the offence, and the need to uphold the integrity of the financial markets. The court made it clear that while recklessness was sufficient for conviction, the investing public's protection necessitated stringent compliance with disclosure obligations.

Orders