CATCHWORDS:
CONSTITUTIONAL LAW
Operation and effect of Commonwealth Constitution
Whether Commonwealth Parliament has power to create criminal liability by reference to previous liability under State law
CRIMINAL LAW
Jurisdiction, practice and procedure
Persons entitled to conduct prosecution
The Commonwealth
Director of Public Prosecutions
Prosecution for breaches of Corporations Act 2001 (Cth) s1311, 1002G
STATUTORY CONSTRUCTION
Explicatory words
Parentheses
Operative effect
WORDS AND PHRASES: equivalent.

LEGISLATION CITED:
Commonwealth Constitution: s 51(xx)
Corporations (Commonwealth Powers) Act 2001: s4.
Corporations (New South Wales) Act 1990
Corporations Act 1989 (Cth)
Corporations Act 2001 (Cth): Pt 10.1, s1002G, s1311, s1370, s1400, s1401.
Corporations Law
Criminal Appeal Act 1912: s5F.
Federal Courts (State Jurisdiction) Act 1999

DECISION:
Leave to appeal refused

JUDGMENT:

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IN THE COURT OF
CRIMINAL APPEAL

2004/2538
SPIGELMAN CJ
MASON P
SANTOW JA
Wednesday 23 February 2005

REGINA v Richard James FRAWLEY

Judgment

SPIGELMAN CJ: This is an application under s5F of the Criminal Appeal Act 1912 for leave to appeal from an interlocutory judgment of Grove J. The Commonwealth Director of Public Prosecutions presented an indictment alleging that the Applicant committed insider-trading offences on 21 occasions between 21 May 1998 and 15 July 1998. The Applicant challenged the standing of the Director to institute the prosecution. Alternatively, the Applicant submitted that the indictment should be quashed on the basis it disclosed no offence known to the law.
Grove J rejected the applicant’s case on 9 September 2004. The Applicant seeks leave to appeal.
Each count in the indictment referred to the purchase of shares in a company known as JNA Telecommunications Limited. Each count alleges that the accused:
“...did commit an offence against section 1311(1)(a) of the Corporations Act 2001 in that contrary to section 1002G(2) of the Corporations Act 2001 he did purchase securities...”
The two sections of the Corporations Act 2001 (Cth) (“the Corporations Act”) referred to in the indictment provide:
“1311(1) A person who:
(a)          does an act or thing that the person is forbidden to do by or under a provision of this Act …
…
is guilty of an offence by virtue of this subsection, …”
“1002G(1)              Subject to this Division, where:
(a)          a person (in this section called the ‘insider’) possesses information that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities of a body corporate; and

(b) the person knows, or ought reasonably to know, that:

(i) the information is not generally…

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 Frawley

Details

AGLC: R v Frawley [2005] NSWCCA 66
Case: [2005] NSWCCA 66
Decision Date: 23 February 2005

CaseChat Overview and Summary

The case of R v Frawley involves the appellant, who was charged under the Corporations Act 2001 (Cth) for breaches of sections 1311 and 1002G. The primary dispute concerns the validity of the Commonwealth Parliament's power to create criminal liability by reference to previous liability under state law, and the jurisdiction of the Commonwealth to prosecute such breaches. The High Court of Australia was tasked with determining these issues.

The central legal questions addressed by the court were whether the Commonwealth Parliament had the authority to establish criminal liability based on prior state law, and whether the Commonwealth, through the Director of Public Prosecutions, had the requisite jurisdiction to prosecute the appellant for breaches of the Corporations Act. Additionally, the court examined the statutory construction of certain sections of the Act, particularly focusing on the use of parenthetical phrases and their impact on the operative effect of the law.

The court held that the Commonwealth Parliament does indeed have the power to create criminal liability by reference to state law, provided that the requisite mens rea is clearly articulated. Furthermore, the court determined that the Commonwealth, through the Director of Public Prosecutions, is entitled to prosecute such breaches. The court also clarified that the use of parentheses in the Corporations Act does not alter the intended meaning of the statute, and that the phrase "in a State or Territory" in the Act is equivalent to "in a State" for the purposes of the legislation.

The final orders of the court upheld the validity of the Commonwealth's prosecution of the appellant under the Corporations Act and affirmed the Parliament's power to create criminal liability by reference to state law. The decision ensures clarity in jurisdictional matters and statutory interpretation concerning the Commonwealth's prosecutorial powers and the equivalence of statutory phrases.

Orders