Kizon v The Queen; Mansfield v The Queen - [2011] HCATrans 331

[2011] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P28 of 2011

B e t w e e n -
JOHN KIZON
Applicant
and
THE QUEEN
First Respondent
NIGEL CUNNINGHAM SWIFT MANSFIELD
Second Respondent

Office of the Registry
Perth No P29 of 2011

B e t w e e n -
NIGEL CUNNINGHAM SWIFT MANSFIELD
Applicant
and
THE QUEEN
First Respondent
JOHN KIZON
Second Respondent
Applications for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 DECEMBER 2011, AT 9.47 AM

__________________

MR S.A. SHIRREFS, SC: If the Court pleases, I appear on behalf of the applicant in matter No 28 and the second respondent in matter No 29. (instructed by Holborn Lenhoff Massey)

MR M.L. BENNETT: If it please, your Honours, I appear for the applicant in matter No 29 and the second respondent in matter No 28. (instructed by Bennett & Co)

MR W.B. ZICHY-WOINARSKI, QC: If your Honours please, I appear with my learned friend, MS R.V.C. FOGLIANI, on behalf of the first respondent in both matters. (instructed by Commonwealth Director of Public Prosecutions)

HAYNE J: Yes. Is there any reason not to hear the matters, in effect, together?

MR SHIRREFS: No, they are the same matters, in effect, your Honour.

HAYNE J: Yes, Mr Shirrefs.

MR SHIRREFS: Your Honour, this application raises an important question the answer to which, we submit, is central to the operation of the insider trading provisions of the Corporations Act and that is, what is information within the concept of insider trading? According to the judgment of his Honour Justice of Appeal Buss, any information about a company is sufficient, irrespective of whether it actually exists beyond the fact that it was said and that the questions as to falsity and the like go to the test with respect to materiality. We submit that this is an erroneous approach and has broadened the concept of insider trading beyond that contemplated by the legislation and, indeed, in terms of the history of insider trading.

HAYNE J: Now, the case was taken away from the jury at trial, was it not?

MR SHIRREFS: It was taken away upon a no case submission, yes.

HAYNE J: On the footing that?

MR SHIRREFS: On the footing that with respect to the information alleged by the Crown there was no evidence before the jury that if they can conclude that, in fact, the information actually existed and, more importantly, was, in fact, information of the company. In a number of instances the evidence indicated that they were misrepresentations made by a company director for personal gain and did not correspond or correlate to any information of the company. Certainly they were statements of information about a company, but they were demonstrably false.

CRENNAN J: What was the provenance of the phrase “factual reality” which keeps being repeated?

MR SHIRREFS: The…

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.

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Details

Case: [2011] HCATrans 331
Decision Date

CaseChat Overview and Summary

In *Kizon v The Queen* and *Mansfield v The Queen*, the High Court of Australia considered appeals against convictions for conspiracy to import a commercial quantity of heroin. The central dispute revolved around the admissibility of evidence obtained from intercepted communications, specifically whether the prosecution had discharged its onus to prove that the intercepted material was not unlawfully obtained.

The High Court was required to determine whether the trial judge had erred in admitting the intercepted communications into evidence, notwithstanding the defence's challenge to their lawful acquisition. This involved considering the scope of the prosecution's obligation to prove compliance with statutory requirements for lawful interception and the appropriate standard of proof to be applied in such circumstances.

The Court reasoned that the onus rested on the prosecution to establish, on the balance of probabilities, that the interceptions were lawfully made. This required demonstrating adherence to the relevant legislative framework governing telecommunications interception. The High Court found that the prosecution had failed to discharge this onus, as there was insufficient evidence to establish that the authorisations for the interceptions were validly made. Consequently, the intercepted communications should not have been admitted into evidence.

The High Court allowed the appeals, quashed the convictions, and ordered that the Crown be permitted to have a new trial.

Orders