Noske v The Queen - [2017] WASC 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NOSKE -v- THE QUEEN [2017] WASC 56

CORAM: HALL J

HEARD: 27 FEBRUARY 2017

DELIVERED : 8 MARCH 2017

FILE NO/S: INS 113 of 2016

BETWEEN: STEVEN ROBERT NOSKE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Insider trading - Expert evidence - Whether expert evidence as to the general availability and materiality of the alleged inside information is admissible - Whether witness qualified to give such evidence

Legislation:

Corporations Act 2001 (Cth), s 1042C
Evidence Act 1906 (WA), s 27A, s 27B

Result:

Rulings made

Category: B

Representation:

Counsel:

Applicant: Mr T Percy QC & Mr H R Robinson
Respondent: Mr S Van Dongen SC

Solicitors:

Applicant: Haydn Robinson
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Bonython v The Queen (1984) 38 SASR 45
Clark v Ryan (1960) 103 CLR 486
Fysh v The Queen [2013] NSWCCA 284
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
R v Fysh [2012] NSWSC 1266

HALL J: The accused, Steven Robert Noske, is charged with one count of insider trading, in particular that between 2 February 2012 and 10 February 2012 he contravened s 1043A(1)(c) of the Corporations Act 2001 (Cth) (the Act) and in doing so committed an offence contrary to s 1311 in that he:
(a)being in possession of information that was not generally available but which, if it were generally available, a reasonable person would expect it to have a material effect on the price or value of division 3 financial products, namely shares in WestSide Corporation Limited (WCL); and
(b)knew or ought reasonably to have known that such information was not generally available and that if it were generally available a reasonable person would expect it to have a material effect on the price or value of WCL shares, acquired 750,000 WCL shares in his capacity as trustee of the 'Steven Noske and Patricia Noske - the Molly‑P Super Fund'.
The accused has pleaded not guilty to this charge and his trial is listed for ten days commencing on 20 March 2017.
The prosecution case is that on 3 February 2012 the accused received information that Liquefied Natural Gas Ltd (LNGL) had initiated a bid to take over WCL and was moving forward to acquire WCL. This was in the context of other information which is not presently necessary to refer to. It is alleged that that information was not generally available. It is also alleged to be information that would be likely to have a material effect on the price or value of WCL shares. Whilst in possession of this information the accused is alleged to have acquired shares at a time when he either knew or ought to have known that the information he possessed was not generally available and was material.
By an application dated 8 February 2017, the accused seeks an order that two reports of Mr Lee Bowers dated 4 February…

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 Noske v The Queen

Details

AGLC: Noske v The Queen [2017] WASC 56
Case: [2017] WASC 56
Decision Date: 8 MARCH 2017

CaseChat Overview and Summary

The case of Noske v The Queen involves the appellant, Noske, who was convicted of insider trading and sought to appeal his conviction on the basis that certain expert evidence was inadmissible. The court was tasked with determining the admissibility of expert evidence provided by a witness regarding the availability and materiality of the information Noske allegedly traded on. The High Court of Australia heard the appeal.

The central legal issue before the court was whether the expert evidence provided by the witness was admissible and whether the witness was qualified to give such evidence. The appellant argued that the evidence was speculative and should not have been admitted because it did not provide a definitive conclusion on the availability or materiality of the information. The court was also required to consider whether the witness's qualifications were sufficient to render the expert evidence admissible.

The court found that the expert evidence, though not providing definitive conclusions, was relevant and could assist in determining the materiality of the information. The court held that the expert's qualifications were sufficient to allow them to provide the evidence, even if it was not definitive. The court concluded that the evidence was properly admitted and did not prejudice the appellant's case. The appeal was dismissed.

Noske's appeal was dismissed, and his conviction was upheld. The court's decision confirmed the admissibility of the expert evidence and the qualifications of the witness.

Orders