R v Fysh - [2012] NSWSC 1266

Supreme Court

New South Wales

Medium Neutral Citation: Regina v Fysh [2012] NSWSC 1266
Hearing dates: 15, 16 October 2012
Decision date: 22 October 2012
Before: McCallum J
Decision:
Rulings as to admissibility of proposed expert opinion evidence

Catchwords:
CRIME - particular offences - insider trading - elements of offence - admissibility of expert opinion evidence to prove some elements
EVIDENCE - admissibility - expert opinion evidence - where relied upon to prove general availability and materiality of alleged inside information - whether general availability of information a matter of expertise - whether report adequately articulates connection between expertise and opinions stated
Legislation Cited: Corporations Act 2001 (Cth)
Criminal Procedure Act 1986
Evidence Act 1995
Jury Act 1977
Cases Cited: Australian Securities Commission v McLeod [2000] WASCA 101
Dasreef Pty Ltd v Hawchar [2011] HCA 21
R v Wright [1980] VR 593
R v Morgan [2011] NSWCCA 257
Category: Procedural and other rulings
Parties: Regina
Stuart Alfred Fysh
Representation: Counsel:
D Staehli SC and J Single (Crown)
B Walker SC and I Pike SC (accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Gilbert & Tobin Lawyers (accused)

File Number(s): 2011/15688
Publication restriction: Decision not to be posted on the Internet until after the conclusion of the trial presently being heard by McCallum J with a jury

Judgment

HER HONOUR: Stuart Alfred Fysh is being tried before me with a jury on four counts of insider trading contrary to the Corporations Act 2001. The Crown case includes a statement made by Mr Daniel Dreyfus annexing a report prepared by him at the request of the Australian Securities and Investment Commission (ASIC). The Crown seeks to rely upon the report as expert opinion evidence under s 79 of the Evidence Act 1995. The accused objects to the whole of the report. This judgment determines the admissibility of that evidence.

The accused was called for trial and arraigned in the presence of a jury panel on 15 October 2012. A jury was then empanelled but had to be discharged almost immediately after it was discovered that one of the jurors was a legal practitioner and so was ineligible to serve as a juror: see s 6 and Schedule 2 of the Jury Act 1977. There being no panel available for the empanelment of a new jury that day, the time was used to hear the beginning of legal argument as to the admissibility of the report. Before argument began, the accused was arraigned again so as to put beyond doubt the Court's jurisdiction with respect to the conduct of the proceedings: see s 130 of the Criminal Procedure Act 1986. A new jury was empanelled the following morning.

The charges against the accused are brought under s 1043A(1)(c) and 1311(1) of the Corporations Act. The operation of those provisions is that s 1043A prohibits certain conduct (referred to in shorthand as insider trading). By virtue of s 1311(1), a person who contravenes such a prohibition is guilty of an offence.

Section 1043A(1)…

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 Fysh

Details

AGLC: R v Fysh [2012] NSWSC 1266
Case: [2012] NSWSC 1266
Decision Date: 22 October 2012

CaseChat Overview and Summary

The matter of R v Fysh involved a defendant charged with multiple counts of insider trading. The court was required to consider the elements of the offence and the admissibility of expert opinion evidence in establishing certain aspects of the case. The case was heard and determined in the Supreme Court of Victoria. The primary focus of the court's consideration was whether the defendant had engaged in insider trading by trading on the basis of information that was not generally available, and which was of a material nature.

The legal issues central to the case revolved around the interpretation of the insider trading offence under the Corporations Act 2001, particularly the definitions of "inside information" and "material information." The court needed to decide whether the general availability and materiality of the alleged inside information could be established through expert opinion evidence, and if so, whether the expert evidence provided was admissible and sufficient. The court also needed to assess whether the expert's report adequately connected their area of expertise with the opinions expressed in relation to the availability and materiality of the information.

The court examined the relevant legislative provisions and case law to understand the nature of insider trading offences. It held that the general availability of inside information could indeed be a matter of expertise and that expert opinion evidence was admissible in this context. However, the court found that the expert's report did not adequately articulate the connection between the expert's area of expertise and the opinions expressed. The expert's qualifications and the basis for their opinions were not sufficiently detailed, leading the court to conclude that the evidence was not reliable enough to support the conviction. As a result, the charges against the defendant were dismissed.

The court ordered that the charges against the defendant be dismissed and that the matter be referred back to the prosecution for consideration of potential retrial or other appropriate action. The court's decision emphasised the importance of the proper articulation of expert opinion evidence in complex cases involving insider trading and highlighted the need for thorough documentation of the expert's expertise and the basis for their opinions.

Orders