Regina v Fysh (No 3)

The appeal was heard in the High Court of Australia, with the case Regina v Fysh (No 3) involving the respondent, Fysh, who was convicted of insider trading. Fysh was found to have traded shares in a company, based on information that was not publicly available, and had contravened section 1041H of the Corporations Act 2001 (Cth). The Court of Appeal had quashed the conviction and ordered a new trial, a decision with which the Crown disagreed. The Crown appealed to the High Court, seeking to restore Fysh's conviction and sentence.

The central legal issues before the court were whether the Crown had presented sufficient evidence for a jury to find Fysh guilty of insider trading and whether the evidence was so lacking that it would require the jury to speculate. The court had to determine the materiality of the alleged inside information and whether it was enough to influence a reasonable person to trade shares. The court also considered whether the evidence supported the conviction, given the substantial penalties associated with insider trading.

The High Court, after reviewing the evidence, found that the Crown had not provided sufficient evidence for a jury to convict Fysh. The court held that the evidence did not establish that the information Fysh possessed was material or that it was reasonably likely to influence a person in his position to trade shares. The court further noted that the evidence lacked specificity, and the jury would have to speculate to convict Fysh. The appeal was dismissed, and the decision of the Court of Appeal was upheld.

The High Court did not make any further orders, affirming the quashing of Fysh's conviction and the order for a new trial. The decision underscored the importance of proving the materiality of inside information in insider trading cases and the need for evidence that clearly links the information to the decision to trade.