Fysh v R [2013] NSWCCA 284

Fysh v R [2013] NSWCCA 284

The convictions were unreasonable because, on the whole of the evidence, the jury should have had a reasonable doubt that the applicant possessed item (f) of MFI 4 at the time he acquired the QGC shares. Item (f) was not a matter making no real difference; it gave the charged information its particular commercial focus on QGC share undervalue. The Crown could not on appeal recast its case by relying on a different combination of information absent item (f). Without item (f), and given the general nature of the remaining information, the public availability of important matters, and limitations in the materiality evidence, the jury should also have had a reasonable doubt that the relevant...

Jurisdiction
Australia
Judgment Date
20 November 2013
Procedural Posture
Criminal Conviction Appeal Concerning Insider Trading Convictions / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; convictions on counts 3 and 4 quashed and verdicts of acquittal entered.
Legal Topics
['conviction Appeal' 'insider Trading' 'unreasonable Verdict' 'inside Information' 'material Effect on Share Price or Value' 'possession of Information']
['criminal Law' 'corporations Law'] ['conviction Appeal' 'insider Trading' 'unreasonable Verdict' 'inside Information' 'material Effect on Share Price or Value' 'possession of Information']

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Procedural Posture

Criminal Conviction Appeal Concerning Insider Trading Convictions / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the verdicts were unreasonable or could not be supported having regard to the evidence because it was not open to the jury to be satisfied that the applicant possessed item (f) of the information in MFI 4 at the time he purchased QGC shares.' 'Whether, absent proof of possession of item (f), the applicant possessed the substance of the information in MFI 4 taken as a whole or in combination, except any part making no real difference.' 'Whether the Crown proved beyond reasonable doubt that the information possessed by the applicant was material in the sense that, if generally available, a reasonable person would expect it to have a material effect on the price or value of QGC shares.']

Ratio Decidendi

The convictions were unreasonable because, on the whole of the evidence, the jury should have had a reasonable doubt that the applicant possessed item (f) of MFI 4 at the time he acquired the QGC shares. Item (f) was not a matter making no real difference; it gave the charged information its particular commercial focus on QGC share undervalue. The Crown could not on appeal recast its case by relying on a different combination of information absent item (f). Without item (f), and given the general nature of the remaining information, the public availability of important matters, and limitations in the materiality evidence, the jury should also have had a reasonable doubt that the relevant...

Court Disposition

Leave to appeal granted; appeal allowed; convictions on counts 3 and 4 quashed and verdicts of acquittal entered.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The conviction on the counts, the subject of the appeal, be quashed and a verdict of acquittal entered.']