Section 998(1) of the Corporations Law (now s 1041B of the Corporations Act 2001) creates a strict liability offence: the prosecution need not prove intent to create a false or misleading appearance of active trading, but must prove the accused intentionally did the act that created or was likely to create such an appearance. Where the prosecution relies on the deeming provision in s 998(5)(a) (wash sales), it must also prove the accused knew there was no change in beneficial ownership. The s 998(6) defence (that the accused's purpose did not include creating a false or misleading appearance) need not be left to the jury unless there is evidence capable of supporting it. Expert evidence that transactions did not in fact create a false or misleading appearance is irrelevant where the prosecution relies on the deeming provision.
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