Regina v J B Loiterton

Case [2005] NSWSC 905


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:

          "On or about 21 October 1998 at Sydney in the State of New South Wales did commit an offence against section 1311(1) of the Corporations Act 2001 ('the Act') in that he breached section 999 of the Act in that he made a statement, being an announcement to the Australian Stock Exchange Limited, that he knew or ought reasonably to have known was materially misleading, and which was likely to induce the purchase of securities in Clifford Corporation Limited by other persons, or was likely to have the effect of maintaining or stabilizing the market…

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Details
AGLC
Regina v J B Loiterton [2005] NSWSC 905
Case
[2005] NSWSC 905
Decision Date

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.

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Background to the litigation

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Evidence Before The Court

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