CITATION: Regina v Rivkin [2003] NSWCCA 307 revised - 12/02/2004 HEARING DATE(S): 15/10/03, 16/10/03 JUDGMENT DATE:
5 February 2004JUDGMENT OF: Mason P at 1; Wood CJ at CL at 1; Sully J at 1 DECISION: Appeal against conviction and sentence dismissed. CATCHWORDS: 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 LEGISLATION CITED: Evidence Act 1995 ss102-110
Crimes Act 1914 (Cth) ss16A, 17A, 20AB
Corporations Act 2001 ss1002A, 1002B, 1002C,1002GCASES CITED: Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited (1996) 65 FCR 215
Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376
Coombe v Bessell (1994) 4 Tas R 149
Domican v The Queen (1992) 173 CLR 555
Doney v The Queen (1990) 171 CLR 207
Dovade Pty Limited v Westpac Banking Group (1999) 46 NSWLR 168
Eastman v The Queen (2000) 203 CLR 1
Ebner v Official Trustee (2000) 205 CLR 337.
Gallagher v The Queen (1986) 160 CLR 392
Hooker Investments Pty Limited v Baring Bros Halkerston and Partners Securities Limited (1986) 10 ACLR 462
Johnson v Johnson (2000) 201 CLR 488
Johnson v Miller (1937) 59 CLR 467
Mickelberg v The Queen (1989) 167 CLR 259
Palmer v The Queen (1998) 193 CLR 1
R v Bailey (1988) 35 A Crim R 458
R v El Rashid, NSWCCA 7 April 1995
R v Hannes (2000) 158 FLR 359
R v Hannes [2002] 173 FLR 1
R v ITA [2003] NSWCCA 174
R v Liosatos [1964] SASR 40
R v Mailes (2001) 126 A Crim R 20
R v Maxwell NSWCCA 23 December 1998
R v Morgan (1993) 70 A Crim R 368
R v Pantano (1990) 49 A Crim R 328
R v Presser [1958] VR 45
R v Scognamiglio (1991) 56 A Crim R 81
R v Turner [1975] QB 834 at 842
Re Polites (1991) 100 ALR 634
S v The Queen (1989) 168 CLR 266
Saleam v R (1989) 16 NSWLR 14
Toohey v Metropolitan Police Commissioner [1965] AC 595
Webb & Hay v The Queen (1994) 181 CLR 41
Zaidi v R (1991) 57 A Crim R 189PARTIES :
Regina
Rene Walter RivkinFILE NUMBER(S): CCA 60198/03 COUNSEL: D Yates SC with M Buscombe (Crown)
R Ellicott QC with B McClintock SC and M WigneySOLICITORS: C K Smith (Crown)
S E O'Connor
LOWER COURTJURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 71998/03 LOWER COURT
JUDICIAL OFFICER :Whealy J
For Full judgment see: [2004] NSWCCA 7
Last Modified: 06/16/2009
Details
- AGLC
- Regina v Rivkin [2003] NSWCCA 307
- Case
- [2003] NSWCCA 307
- Decision Date
CaseChat Overview and Summary
In the matter of Regina v Rivkin, the appellant was convicted of insider trading, contravening section 1002G(2) of the Corporations Act 2001. The conviction was appealed on multiple grounds, including the alleged miscarriage of justice due to the trial judge's actual or ostensible bias, the fairness of the trial process, the adequacy of the summing up, the reasonableness of the verdict, and the proportionality of the sentence. The appeal was heard in the High Court of Australia.
The central legal issues in the case involved the fairness and legality of the trial process, the meaning and application of specific statutory terms such as "information" and "materiality," and the propriety of the sentence imposed. The appellant argued that the trial judge's former professional association with him introduced bias, which tainted the trial. Additionally, the appellant challenged the sufficiency of evidence to support the conviction and contended that the sentence was manifestly excessive. The appeal also raised issues concerning the appellant's fitness to stand trial due to a brain tumour and the impact of fresh medical evidence on the appeal.
The court examined whether the trial judge's conduct exhibited actual or ostensible bias, which could have prejudiced the trial. The court found no evidence of personal animosity or bias on the part of the trial judge. Regarding the sufficiency of evidence, the court upheld the conviction, finding that the evidence was adequate to establish the appellant's possession of material information and its relevance. The court also considered the appellant's fitness to stand trial, concluding that the appellant's condition did not affect his capacity to understand and participate in the proceedings. The court rejected the argument that the sentence was manifestly excessive, noting the need for deterrence in white-collar crimes. The court held that the verdict was reasonable and the sentence proportionate.
The High Court dismissed the appeal against both conviction and sentence, affirming the trial judge's decisions and the lower court's judgment.
The central legal issues in the case involved the fairness and legality of the trial process, the meaning and application of specific statutory terms such as "information" and "materiality," and the propriety of the sentence imposed. The appellant argued that the trial judge's former professional association with him introduced bias, which tainted the trial. Additionally, the appellant challenged the sufficiency of evidence to support the conviction and contended that the sentence was manifestly excessive. The appeal also raised issues concerning the appellant's fitness to stand trial due to a brain tumour and the impact of fresh medical evidence on the appeal.
The court examined whether the trial judge's conduct exhibited actual or ostensible bias, which could have prejudiced the trial. The court found no evidence of personal animosity or bias on the part of the trial judge. Regarding the sufficiency of evidence, the court upheld the conviction, finding that the evidence was adequate to establish the appellant's possession of material information and its relevance. The court also considered the appellant's fitness to stand trial, concluding that the appellant's condition did not affect his capacity to understand and participate in the proceedings. The court rejected the argument that the sentence was manifestly excessive, noting the need for deterrence in white-collar crimes. The court held that the verdict was reasonable and the sentence proportionate.
The High Court dismissed the appeal against both conviction and sentence, affirming the trial judge's decisions and the lower court's judgment.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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