SUPREME COURT OF QUEENSLAND
CITATION:
Commonwealth Director of Public Prosecutions v Fysh [2010] QSC 216
PARTIES:
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(applicant)
v
FYSH, Stuart Alfred(respondent)
FILE NO/S:
SC No 13687 of 2009
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
21 June 2010
DELIVERED AT:
Brisbane
HEARING DATE:
11 January, 11 February 2010; written submissions
JUDGE:
Margaret Wilson J
ORDER:
1. The proceeding be dismissed.
2. The applicant pay the respondent’s costs of and incidental to the proceeding, including the respondent’s costs of and incidental to the interlocutory application filed 18 December 2009.
3. This order take effect on 28 June 2010.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – PECUNIARY PENALTY AND LIKE ORDERS – GENERALLY – FORFEITURE OR CONFISCATION – JURISDICTION – where the Commonwealth Director of Public Prosecutions seeks restraining orders and a pecuniary penalty order against respondent pursuant to the Proceeds of Crime Act 2002 (Cth) (POCA) – where restraining orders were made by consent at a time when respondent had not been charged with any offence – where orders were made on the basis there were reasonable grounds to suspect he had committed certain insider trading offences "at Brisbane in the State of Queensland and elsewhere" contrary to ss 1311(1) and 1043A(1) of the Corporations Act 2001 (Cth) – where pursuant to s 335 of the POCA, if all or part of the conduct constituting an offence to which the order would relate occurred in a particular State or is reasonably suspected of having occurred in that State, the courts that have proceeds jurisdiction for the order are those with jurisdiction to deal with criminal matters on indictment in that State – where DPP submits that respondent acquired/disposed of shares only upon his name being entered on/removed from the companies’ share registers, that were located in Queensland – where DPP and respondent agree some conduct occurred in New South Wales and where respondent alleges no conduct occurred in Queensland – whether any of the conduct constituting the offence took place in Queensland – whether Queensland has proceeds jurisdiction
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT – INSIDER TRADING – where respondent allegedly acquired and disposed of shares contrary to ss 1311(1) and 1043A(1) of the Corporations Act – where respondent, from outside Australia, instructed his broker to conduct transactions on the ASX in Sydney – where application proceeded on the basis of reasonable suspicion that information had by respondent when he acquired and disposed shares was "inside information" – whether any of the conduct constituting the offence occurred in Queensland
CORPORATIONS – SHARE CAPITAL – SHARES – TRANSFER – REGISTRATION – where the companies’ share registries are maintained by Link Market Services in Brisbane – where by s 1070A of the Corporations Act, shares are transferable as provided by the operating rules of a prescribed CS facility – where a…
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- AGLC
- Commonwealth Director of Public Prosecutions v Fysh [2010] QSC 216
- Case
- [2010] QSC 216
- Decision Date
CaseChat Overview and Summary
The legal issues included whether Queensland had jurisdiction over the proceeds of the alleged crime under section 335 of the POCA, and whether any of the insider trading offences occurred in Queensland. The court considered the location of the share transfers recorded on the CHESS Subregister in Sydney and the subsequent update to the companies' share registers in Brisbane. The court also had to decide if it was in the interests of justice to transfer the proceedings to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
The court ruled that Queensland did not have jurisdiction over the proceeds of the alleged crime as none of the conduct constituting the offence occurred in Queensland. The transfers of shares were recorded in Sydney, and the change in ownership was noted on the CHESS Subregister in Sydney, not in Brisbane. The respondent did not acquire or dispose of legal title to the shares until his name appeared on the companies' share registers in Brisbane, but this was after the transfers had already taken effect in Sydney. The court concluded that the proceeding should be dismissed and ordered the applicant to pay the respondent’s costs. The order took effect on 28 June 2010.
Orders
Orders of the court
1. The proceeding be dismissed.
2. The applicant pay the respondent’s costs of and incidental to the proceeding, including the respondent’s costs of and incidental to the interlocutory application filed 18 December 2009.
3. This order take effect on 28 June 2010.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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