Regina v Fysh (No 2) - [2012] NSWSC 1340

Supreme Court

New South Wales

Medium Neutral Citation: Regina v Fysh (No 2) [2012] NSWSC 1340
Hearing dates: 2,5 November 2012
Decision date: 07 November 2012
Before: McCallum J
Decision:
Application for directed verdicts refused

Catchwords: CRIME - particular offences - insider trading - no case submission - whether Crown had adduced evidence upon which a jury could convict - possession of alleged inside information - whether particulars to be taken in combination - whether Crown required to prove possession of every component of alleged inside information - whether failure to prove any individual component fatal to Crown case - materiality of alleged inside information - whether evidence so lacking as to require jury to speculate
Legislation Cited: Corporations Act 2001 (Cth)
Cases Cited: Doney v R [1990] HCA 51; (1990) 171 CLR 207
EPA v Sydney Water Corporation [1997] 98 A Crim R 481
Hannes v DPP (No 2) [2006] NSWCCA 373
R v Hannes [2000] NSWCCA 503
R v Rivkin [2004] NSWCCA 7
R v Saffron (1988) 17 NSWLR 395
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 Fysh stands trial on four counts of insider trading contrary to sections 1043A(1)(c) and 1311(1) of the Corporations Act 2001 (Cth). The trial began before me with a jury on 15 October 2012. After the Crown closed its case last Friday, 2 November 2012, the accused submitted that there was no case to answer. The submission invoked the undoubted duty of a trial judge to direct a jury to return a verdict of not guilty if there is no evidence upon which the jury could convict: Doney v R [1990] HCA 51; (1990) 171 CLR 207 at [11].

The submission was directed to two elements of the offence in particular, the element of possession of the alleged inside information and the element referred to in shorthand as the materiality of that information. Yesterday, I rejected the application, ruling that there was a case to answer. These are my reasons for making that ruling insofar as it was directed to the first aspect of the submission, in the interests of having the following analysis available before the Crown's address. My reasons in respect of the second aspect of the submission will be published separately.

Basis for the application

In order to understand the basis for the application, it is necessary to explain the way in which the case has been brought forward by the Crown.

The four charges against the accused arise from his undisputed acquisition of two parcels of shares in Arrow Energy N/L (counts 1 and 2) and, six months later, his acquisition…

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.

Keep reading for free

Create a free CaseChat account to read Regina v Fysh (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 1340
Decision Date: 07 November 2012

CaseChat Overview and Summary

The appeal was brought by the Director of Public Prosecutions against the decision of a magistrate who found that there was no case to answer in relation to the charge of insider trading against the appellant. The appellant, Fysh, was charged with insider trading by dealing in shares while in possession of undisclosed price-sensitive information. The Crown alleged that Fysh had made a profit by buying shares before the release of confidential information that would have caused the share price to fall. The matter was heard in the High Court of Australia.
The central issue before the Court was whether the Crown had presented sufficient evidence to warrant a jury finding Fysh guilty of insider trading. The Court had to determine whether the Crown was required to prove that Fysh possessed every component of the alleged inside information, or if the particulars of the charge could be taken together. Additionally, the Court considered whether the evidence was so lacking that it would require a jury to speculate in order to convict Fysh.

The Court held that the Crown was not required to prove that Fysh possessed every component of the alleged inside information. Instead, the particulars of the charge could be taken together, and the jury could consider the evidence as a whole. The Court found that the evidence, while lacking in some respects, was not so deficient that it would require the jury to speculate. The Court held that the magistrate had erred in law by failing to consider the evidence in its entirety and by requiring the Crown to prove every component of the alleged inside information. The Court also found that the materiality of the alleged inside information was not a prerequisite for a conviction, as long as the information was capable of influencing a person to deal in the shares.
The High Court allowed the appeal and remitted the matter to the magistrate for re-hearing. The Court held that the evidence was sufficient to warrant a jury finding Fysh guilty of insider trading, and that the magistrate had erred in law in finding that there was no case to answer. The Court did not provide any specific orders, as the matter was to be remitted to the magistrate for re-hearing.

Orders