COUNSEL: R J H Maidment SC with P R McGuire (Crown) P Byrne SC with M Thangaraj
SOLICITORS: Commonwealth Director of Public Prosecutions John De Mestre & Company
CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Crown appeal against leniency of sentence - insider trading - possession of information - purchase of Qantas shares - deal for merging of Impulse Airlines' business with Qantas Airlines Limited - establishment of criminal standard - general deterrence - degree of culpability.
DECISION: 1.Appeal against conviction dismissed 2.Crown appeal against sentence dismissed.
JUDGMENT:
- 1 -
IN THE COURT OF CRIMINAL APPEAL
2004/3053
WOOD CJ at CL ADAMS J BELL J
Friday 8 April 2005
Regina v Robert Bart DOFF
Judgment
THE COURT: The Appellant was convicted following trial before Justice Barr, and a jury, on a count of insider trading brought pursuant to s 1002G(2) and s 1311(1) of the Corporations Act 2001. He was sentenced to serve 350 hours of community service and to a $30,000 fine. He was also ordered to pay a penalty under the Proceeds of Crime Act 2002 of $37,225.75.
The Appellant now brings an appeal against the conviction. The Crown has filed an appeal against the leniency of the sentence.
Facts
On 24 April 2004 there was a meeting at the Appellant’s business premises, which was attended by Gerard McGowan, Mark McGowan, Spiros Dassakis and the Appellant. The purpose of the meeting was to discuss Gerard McGowan’s interest in purchasing a property in Bellevue Hill, which was owned by Rene Rivkin, or by a company, of which he was the effective controller. The Appellant had been engaged by Mr Rivkin to act as his agent for the sale and there had been some earlier discussions between him and Mr Gerard McGowan, in which the latter had expressed an interest in purchasing the property, having initially indicated that the “timing was wrong, and subsequently that he was “in the process of selling a part of the business that (he) owned and if that was successful (he) would be interested in making an offer on the property”.
It was in the course of this meeting that the information, which was the subject of the charge, was alleged to have been supplied. Not all of those who were present gave the same account of the words spoken by Gerard McGowan, and it is that circumstance which is at the heart of this appeal.
Leaving aside immaterial discussions, the various versions which were given of the transaction which was on foot, or in the course of…
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
AGLC
R v Doff [2005] NSWCCA 119
Case
[2005] NSWCCA 119
Decision Date
CaseChat Overview and Summary
The appeal in R v Doff involves the Appellant who has appealed against his conviction and the Crown who has appealed against the leniency of the sentence. The conviction stems from an incident involving insider trading and the possession of confidential information, specifically related to the purchase of Qantas shares and the impending merger between Impulse Airlines and Qantas. The case was heard in the court, which was required to address several legal issues. These issues included establishing the criminal standard for insider trading, determining the general deterrence and degree of culpability in such cases, and interpreting the evidence presented regarding the alleged disclosure of confidential information during a meeting.
The court's reasoning focused on the interpretation of the evidence and the application of legal principles to the facts of the case. It examined the testimonies of the various witnesses, particularly the conflicting accounts of the conversation that allegedly took place during the meeting. The court had to discern whether the information disclosed during the meeting was indeed confidential and whether it constituted insider trading. The analysis involved assessing the Appellant's level of culpability and whether the warning given by Gerard McGowan to Rivkin was sufficient to negate any potential insider trading. The court also considered the broader implications of such cases in terms of general deterrence against insider trading.
The outcome of the appeal was that the conviction was upheld. The court found that the evidence supported the Appellant's involvement in insider trading and that the warning given did not absolve him of liability. The court determined that the Appellant possessed information that was confidential and used it to his advantage by purchasing Qantas shares. The appeal against the leniency of the sentence was also dismissed, as the court found the sentence to be appropriate given the circumstances of the case.
The final orders of the court included the affirmation of the Appellant's conviction for insider trading and the dismissal of both the Appellant's and the Crown's respective appeals concerning the sentence. The Appellant's conviction stood, and the sentence imposed was deemed to be just and proportionate to the offence committed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The Appellant now brings an appeal against the conviction. The Crown has filed an appeal against the leniency of the sentence. Facts On 24 April 2004 there was a meeting at the Appellant’s business premises, which was attended by Gerard McGowan, Mark McGowan, Spiros Dassakis and the Appellant. The purpose of the meeting was to discuss Gerard McGowan’s interest in purchasing a property in Bellevue Hill, which was owned by Rene Rivkin, or by a company, of which he was the effective controller. The Appellant had been engaged by Mr Rivkin to act as his agent for the sale and there had been some earlier discussions between him and Mr Gerard McGowan, in which the latter had expressed an interest in purchasing the property, having initially indicated that the “timing was wrong, and subsequently that he was “in the process of selling a part of the business that (he) owned and if that was successful (he) would be interested in making an offer on the property”. It was in the course of this meeting that the information, which was the subject of the charge, was alleged to have been supplied. Not all of those who were present gave the same account of the words spoken by Gerard McGowan, and it is that circumstance which is at the heart of this appeal. Leaving aside immaterial discussions, the various versions which were given of the transaction which was on foot, or in the course of implementation, involving Impulse Airlines, a business owned by an unlisted company of which Gerard McGowan was the executive chairman, and largest shareholder, and Qantas Airways Limited (“Qantas”) were as follows.Gerard McGowan He gave evidence that Mr Dassakis, who had attended the meeting to represent Mr Rivkin’s interests, said that Mr Rivkin:“Would need to know the details of the business (he) was selling and who the potential purchaser was”. Gerard McGowan said that he“didn’t want to disclose the details of the sale because it would compromise both him and…Mr Rivkin”,but did give the following reply in answer to this observation:“We were in the process of a sale of part of our business of Qantas. However we needed ACCC approval before that transaction could go through. Then I went on to warn him that now that he had that knowledge, he could not trade in Qantas shares.” Mr McGowan said that the Applicant was present at the time of this conversation. He also said that, in the course of a telephone conversation with Mr Rivkin, which occurred a little while later during the meeting, in the presence of the Applicant he had said words to the effect:“I am currently negotiating with Qantas for a sale of part of my business to them. I need ASIC approval for that transaction to complete. I am interested in purchasing your property.”He added that:“I also warned Rivkin that now he had that knowledge, he couldn’t trade in Qantas shares.”Mark McGowan This witness, who was the Chief Financial Officer of Impulse and one of those involved in the team that was engaged in the negotiations with Qantas, gave evidence that Gerard McGowan said that he would purchase Mr Rivkin’s property, but indicated that he needed a clause in the contract making it conditional upon a“government approval for a business deal that was imminent”.He added that Gerard McGowan also said:“Well Impulse is going to merge its business with Qantas and now that I have disclosed that information you cannot trade in Qantas shares.”