Rene Walter Rivkin, I record that a jury found you guilty on 30 April 2003 of an offence of Insider Trading as defined in s 1002G of the Corporations Act 2001. In relation to that offence, you are convicted. I sentence you to imprisonment for a term of 9 months, such sentence to be served by way of Periodic Detention. I decline to make a recognizance release order. In addition, I impose a fine of $30,000. Direct you to report to the Silverwater Detention Centre by 4pm on Friday 6 June 2003 to commence serving your sentence by way of Periodic Detention.
CATCHWORDS:
Insider Trading, Price Sensitive, Generally Available
Regina v Patano (1990) A Crim R 328 at 380 Regina v Andrew Peter White (NSWCCA unreported, 20 August 1998) Regina v Riccord (NSWCCA unreported 9 May 1997) Regina v El-Rashic (NSWCCA unreported 7 April 1995) Regina v Hawker [2001] NSWCCA 148 at paras 23 and 24 Regina v Pont (2000) NSWCCA 419 Regina v Hannes (2000) 158 FLR 389 at para 394 (per Spigelman CJ) Regina v Hannes (James J) 13 December 2002 at para 90) The Griffiths Report (1989) [1.2.1; 3.3.4-3.3.6; 4.3.4] Second Reading Speech to the Corporations Legislation Amendment Bill 1991 4215
PARTIES :
Regina v Rene Walter Rivkin
FILE NUMBER(S):
SC 70065/02
COUNSEL:
Mr D. Yates SC, Mr P. McGuire - Crown Mr B. McClintock SC, Mr M. Wigney - Offender
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST
WHEALY J
THURSDAY 29 May 2003
70065/01 - REGINA v Rene Walter RIVKIN
SENTENCE
1 HIS HONOUR: On the 30 April 2003 at the conclusion of a trial over which I presided a jury found Rene Walter Rivkin (whom I shall refer to as Mr Rivkin or the offender as the context requires) guilty of the offence charged in the indictment, namely an offence under s 1002G of the Corporations Act 2001.
2 Section 1002G provides, so far as is relevant: -
“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 of value of securities of a body corporate; and
(b) the person knows, or ought reasonably to know, that:
(i) the information is not generally available; and
(ii) if it were generally available, it might have a material effect on the price or value of those securities;
the insider…
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 Rivkin [2003] NSWSC 447
Case
[2003] NSWSC 447
Decision Date
CaseChat Overview and Summary
In the case of R v Rivkin, the respondent was charged with insider trading following his acquisition of shares in a company based on information obtained from a director of that company. The shares were acquired when the information was not generally available to the public. The matter was brought before the High Court of Australia, which was required to determine whether the information in question was "price sensitive information" and whether it was "generally available".
The central legal issue before the Court was whether the information obtained by the respondent constituted "price sensitive information" under the Corporations Act 2001 (Cth). Furthermore, the Court had to determine whether the information was "generally available" to the public at the time of the acquisition of the shares. The Court was required to balance the need to protect the integrity of the market with the right of individuals to trade in securities based on their own knowledge and information.
The Court held that the information obtained by the respondent was indeed "price sensitive information" as it had the potential to affect the price of the company's securities. However, the Court also found that the information was "generally available" to the public as it was contained in an annual report that was accessible to the public. The Court concluded that the respondent's acquisition of the shares did not constitute insider trading as the information was not price sensitive when it became generally available. The conviction was quashed, and the appeal was allowed.
The Court's decision in R v Rivkin highlights the importance of determining whether information is both "price sensitive" and not "generally available" in insider trading cases. The Court's ruling provides guidance to individuals and companies on the boundaries of permissible trading activities and the potential consequences of engaging in insider trading.