Elena M. Davies

Multiple accused brought directed verdict motions in a jury trial alleging fraud and conspiracy involving the takeover of ING Direct customer bank accounts using confidential customer information.

The court reviewed the legal requirements for conspiracy, emphasizing the need for proof of an agreement and a shared unlawful objective, which may be inferred from circumstantial evidence.

The court held that there was some evidence capable of supporting an inference of conspiratorial agreement for certain counts, including evidence that one accused obtained confidential banking information and that another used that information to access accounts and transfer funds.

The motions for directed verdicts were dismissed for several accused because the evidence could permit a properly instructed jury to infer participation in the conspiracy or fraud.

However, one accused obtained a directed verdict of acquittal on a specific fraud count due to insufficient evidence linking him to the fraudulent transfer of funds.

A co-accused sought leave to introduce evidence of another co-accused’s prior fraud conviction to support an inference that the co-accused independently possessed the ability to commit the alleged fraud.

The court considered whether the prior conviction had sufficient probative value to assist the moving party’s defence.

Applying the principles governing admission of bad character evidence between co-accused and the balancing test articulated in Seaboyer and subsequent authorities, the court found the evidentiary nexus weak and the probative value minimal.

The earlier offence involved different conduct and did not establish the capability alleged by the moving party.

The prejudicial effect to the co-accused substantially outweighed any limited probative value.