Appeal against conviction - insider trading - appellant found guilty of contravening s1002G(2) Corporations Act 2001 - Whether miscarriage of justice - actual or ostensible bias of trial judge - former professional association - whether "personal animosity" involved in sentence - Whether trial judge erred in not directing verdict of acquittal - meaning of "information" - possession of information as particularised - materiality - Admissibility of evidence - relevance - prejudicial/probative value - medical evidence as to witness' capacity to give reliable evidence or to present more attractively - Whether summing up unfair - judicial comment/warning - Whether verdict unreasonable - Fitness to stand trial - brain tumour - frontal lobe dysfunction - appellant's mental state - conduct at trial - credibility - expert evidence - mental element of offence - Fresh evidence of undiagnosed meningioma - relevance on appeal to issues of fitness to stand trial, miscarriage stemming from inappropriate behaviour, mens rea and sentence - Equality before the law - law's concerns regarding fitness is with capacity to understand and follow proceedings not with maximising capacity to present as attractive personality - sentencing in "white collar" criminal matters - court's duty not to be swayed by "community attitudes" in particular cases as promoted by media - Appeal against sentence - whether sentence manifestly excessive - whether miscarriage of sentencing judge's discretion - insider trading not a "victimless" crime - appellant's public persona - good character - personal and general deterrence - finding of "contemptuous arrogance" - no contrition - impact of fresh evidence as to appellant's medical and mental state where absence of evidence as to any change of attitude by prisoner - D
[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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AGLC
R v Rivkin [2004] NSWCCA 7
Case
[2004] NSWCCA 7
Decision Date
CaseChat Overview and Summary
The appeal by Rivkin against his conviction and sentence for insider trading centred on various aspects of the trial process and the sentence imposed. The appellant was found guilty of contravening section 1002G(2) of the Corporations Act 2001. The key issues before the court included whether there was a miscarriage of justice due to actual or ostensible bias of the trial judge, whether the trial judge erred in not directing a verdict of acquittal, the meaning and application of "information" in the context of the offence, and the admissibility of certain evidence, including medical evidence regarding the appellant's capacity to stand trial and the reliability of his evidence. Additionally, the court examined whether the summing up was fair, the reasonableness of the verdict, the fitness of the appellant to stand trial, and the appropriateness of the sentence imposed.
The court considered the appellant's argument that the trial judge's former professional association with him may have led to actual or ostensible bias. The court found no evidence of personal animosity or bias. It also determined that the trial judge did not err in failing to direct a verdict of acquittal, as the evidence was sufficient to allow a jury to find the appellant guilty. Regarding the meaning of "information" and its application to the facts, the court held that the appellant possessed information that was material to the offence. The court further found that the evidence, including the medical evidence, was properly admitted and relevant to the issues before the court. The summing up by the trial judge was deemed fair, and the verdict was considered reasonable given the evidence. The appellant's fitness to stand trial was found to be adequate, and the sentence was deemed appropriate in light of the appellant's conduct and the need for deterrence.
The court rejected the appeal against conviction, confirming the trial judge's findings and the jury's verdict. The sentence was also upheld as not manifestly excessive. The court emphasized the importance of not being swayed by media-driven community attitudes in sentencing "white collar" crimes. The appeal against sentence was dismissed, and the original conviction and sentence were affirmed. The court noted the relevance of fresh evidence concerning the appellant's medical condition on appeal, but found it did not affect the trial's fairness or the appropriateness of the sentence.