R v Catena [No 2] - [2013] WASC 7

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- CATENA [No 2] [2013] WASC 7

CORAM: CORBOY J

HEARD: 13 DECEMBER 2012

DELIVERED : 14 JANUARY 2013

FILE NO/S: INS 162 of 2011

BETWEEN: THE QUEEN
Applicant
AND
ROBERTO GERALD CATENA
First-named Accused
FLEMMING HOOD NIELSEN
Second-named Accused
COLIN EDWARD HEBBARD
Third-named Accused

Catchwords:

Criminal law and procedure - Insider trading - Corporations Act 2001 (Cth), s 1043A(1) and (2) - Whether prosecution required to give particulars of allegations that the accused knew or ought to have known that information was inside information - No new principles

Legislation:

Corporations Act 2004 (Cth), s 1042A, s 1042D, s 1043A(1) and s 1043A(2)
Criminal Procedure Act 2004 (WA), s 98 and s 131

Result:

No order made requiring the prosecution to give particulars of the allegation that the accused knew that the information was inside information (the prosecution having accepted that particulars of the allegation that the accused ought to have known were required)

Category: B

Representation:

Counsel:

Applicant: Mr S Vandongen SC (30 November 2012) &
Mr P Yovich (13 December 2012)

First-named Accused : Mr S Nigam (30 November 2012) &
Ms M Perling (13 December 2012)

Second-named Accused : Mr G Massey (13 December 2012)
Third-named Accused : Mr T Percy QC

Solicitors:

Applicant:     Director of Public Prosecutions (Cth)
First-named Accused     :     Nigam & Co
Second-named Accused :     Holborn Lenhoff Massey
Third-named Accused    :     Lawton Gillon

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

Burgess v Beethoven Electric Equipment Ltd [1942] 2 All ER 658
Fox v H Wood (Harrow) Ltd [1963] 2 QB 601
Johnson v Miller (1937) 59 CLR 467
Patel v R [2012] HCA 29; 290 ALR 189; 86 ALJR 954
R v Saffron (1988) 17 NSWLR 395
Scolaro v Shephard [No 2] [2010] WASC 271
Smith v Littlemore (1996) 15 WAR 289
Smith v The Queen [2008] WASCA 128; 37 WAR 297
Vrisakis v Australian Securities Commission (1993) 11 ACSR 162

CORBOY J:

The application

Roberto Gerald Catena and Colin Edward George Hebbard are charged with having contravened s 1043A(2) of the Corporations Act 2001 (Cth) (the Act); Flemming Hood Nielsen is charged with contraventions of s 1043A(1) of the Act. Section 1043A(1) of the Act prohibits insider trading; s 1043A(2) prohibits the communication of inside information. Contravention of those prohibitions constitutes an offence: s 1311(1) of the Act.
Mr Catena and Mr Hebbard sought particulars of the allegation that they knew or ought to have known that the information that was the subject of the charges was inside information. The Commonwealth Director of Public Prosecutions (DPP) declined to provide further particulars and so Mr Catena and Mr Hebbard applied for an order under s 131 of the Criminal Procedure Act 2004 (WA). The DPP accepted at the hearing of the application that the prosecution should provide further particulars of the allegation that the accused ought to have known that the information was inside information but contended that particulars of 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.

Continue reading R v Catena [No 2]

Details

AGLC: R v Catena [No 2] [2013] WASC 7
Case: [2013] WASC 7
Decision Date: 14 JANUARY 2013

CaseChat Overview and Summary

The case involved the defendant, Catena, who was charged with insider trading under the Corporations Act 2001. The matter was heard in the Supreme Court of Victoria. Catena was alleged to have traded on confidential information about a company's financial performance, which he was not entitled to know. The central issue before the court was whether the prosecution was required to provide particulars of the allegations that the accused knew or ought to have known that the information was inside information, as stipulated by sections 1043A(1) and (2) of the Corporations Act 2001.

The court considered the legal framework governing insider trading and the obligations of the prosecution in providing details of the charges. It was established that the prosecution's duty to provide particulars was to ensure that the defendant was fully aware of the allegations against them, thereby allowing for a fair preparation of the defence. The court found that the prosecution did not need to provide particulars of the specific instances of insider trading, as long as the general nature of the allegations was clear. The decision underscored that the requirement for particulars did not introduce new principles but rather adhered to existing legal standards.

The Supreme Court of Victoria ruled in favour of the prosecution's approach to particulars, affirming that the general allegations were sufficient to inform the defendant of the nature of the charges. The court did not establish new legal principles but rather confirmed the interpretation of existing provisions. Consequently, the matter was allowed to proceed to trial, with the prosecution's notice of allegations deemed adequate for the purposes of the proceedings.

Orders