Fysh v The Queen - [2013] NSWCCA 284

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fysh v R [2013] NSWCCA 284
Hearing dates: 17 July 2013
Decision date: 20 November 2013
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
Schmidt J at [216]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. The conviction on the counts, the subject of the appeal, be quashed and a verdict of acquittal entered.

Catchwords: CRIMINAL LAW - conviction appeal - two counts of insider trading - whether verdicts unreasonable having regard to the evidence - whether the Crown proved applicant possessed each item of information alleged - whether Crown proved that the information possessed by the applicant was material - limitations in Crown's expert evidence - failure by Crown to establish beyond reasonable doubt that important information possessed by applicant on relevant date - whether information not proved by Crown "made no real difference" - factual basis for Crown case not made out - conviction quashed and verdict of acquittal entered.
Legislation Cited: Corporations Act 2001 (Cth) - ss 1043A(1)(c) and 1311(1)
Criminal Appeal Act 1912 - s6(1)
Cases Cited: Libke v R [2007] HCA 30; 230 CLR 559
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Stuart Alfred Fysh - Applicant
Regina (Cth) - Respondent Crown
Representation: Counsel:
Mr B Walker SC/Mr I Pike SC - Applicant
Mr D Staehli SC - Respondent Crown
Solicitors:
Gilbert & Tobin - Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown

File Number(s): 2011/15688
Decision under appeal

Before:

McCallum J

File Number(s):

2011/15688

Judgment

BATHURST CJ: I agree with Hoeben CJ at CL.

HOEBEN CJ at CL:

Trial and sentence

The applicant for leave to appeal stood trial between 15 October 2012 and 14 November 2012 before McCallum J and a jury with respect to four counts of insider trading under ss 1043A(1)(c) and 1311(1) of the Corporations Act 2001 (Cth). On 14 November 2012 the jury returned verdicts of not guilty on the first two counts and guilty with respect to the third and fourth counts.

Counts 3 and 4 alleged that in early December 2007, while in possession of inside information which was not generally available concerning Queensland Gas Company Ltd (QGC), the applicant purchased shares in QGC in the amount of 240,000 and 10,000 respectively.

On 19 December 2012 the applicant was sentenced to 2 years imprisonment with respect to count 3, to commence on 11 December 2012 and expire on 10 December 2014. On count 4 the applicant was sentenced to 18 months imprisonment, to commence on 11 December 2012 and expire on 10 June 2014. Her Honour ordered that the applicant was to be released on recognisance after serving 12 months of imprisonment.

The applicant sought leave to appeal from his conviction on the following grounds:

Ground 1: The verdicts were unreasonable or could not be supported having regard to the evidence, because it was not open to the jury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fysh v The Queen

Details

AGLC: Fysh v The Queen [2013] NSWCCA 284
Case: [2013] NSWCCA 284
Decision Date: 20 November 2013

CaseChat Overview and Summary

The appellant, Fysh, appealed against his convictions for two counts of insider trading, arguing that the verdicts were unreasonable in light of the evidence presented. The appeal was heard by the High Court of Australia, which was required to determine several legal issues, including whether the Crown had adequately proven that the appellant possessed each item of information alleged, whether the information was material, and if the limitations in the Crown's expert evidence were significant enough to affect the outcome. Additionally, the court had to decide whether the Crown had proven beyond reasonable doubt that the appellant possessed the critical information on the relevant date and whether the information that was not proven by the Crown "made no real difference." The court found that the factual basis for the Crown's case was not established, leading to the conclusion that the convictions were unreasonable. Consequently, the convictions were quashed, and a verdict of acquittal was entered in their place.

Orders