Braysich v The Queen

The High Court of Australia heard an appeal from the Court of Appeal of the Supreme Court of Western Australia concerning a criminal conviction. The appellant, Braysich, was charged with creating a false or misleading appearance of active trading in securities, an offence under the Corporations Act 2001 (Cth). The Act provided a defence if the appellant could prove, on the balance of probabilities, that their purpose in undertaking the trades did not include the purpose of creating such a false or misleading appearance.

The central legal issue before the High Court was whether the trial judge erred in ruling that the statutory defence was not open to be considered by the jury. Specifically, the court had to determine if character evidence and other evidence presented by the defence, including the appellant's own testimony, were sufficient to raise the defence, thereby requiring the judge to leave it to the jury. This involved considering whether, taking the evidence at its highest, a jury could reasonably conclude that the appellant lacked the proscribed purpose.

The High Court reasoned that the trial judge's ruling prematurely foreclosed the possibility of the defence being considered. The appellant's evidence, which included his belief that there had been a change in beneficial ownership of the securities and that he took steps to ensure this, did not necessarily negate the possibility of him also lacking the proscribed purpose. The court held that it was open to the appellant to rely on any evidence, including his own testimony and that of others, which was inconsistent with the existence of the proscribed purpose. The judge's rejection of expert evidence was also found to be erroneous, although ultimately not determinative of the appeal.

The High Court allowed the appeal, quashed the appellant's convictions, and remitted the matter to the District Court of Western Australia for a new trial.