Braysich v The Queen [2011] HCA 14

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HEYDON, CRENNAN, KIEFEL AND BELL JJ

JEFFREY JOSEPH BRAYSICH APPELLANT

AND

THE QUEEN RESPONDENT

Braysich v The Queen [2011] HCA 14

11 May 2011

P32/2010

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 16 October 2009 dismissing the appeal against conviction and, in its place, order that:

(a) the appeal to that Court be allowed;

(b) the appellant's convictions be quashed; and

(c) the matter be remitted to the District Court of Western Australia for a new trial.

On appeal from the Supreme Court of Western Australia

Representation

M J McCusker QC with S J Lemonis for the appellant (instructed by Ainslie van Onselen)

W B Zichy-Woinarski QC with W F Gillan for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Braysich v The Queen

Criminal law – Evidence – Burden of proof – Defences – Directions to jury – Appellant charged with creating a false or misleading appearance of active trading in securities – Appellant deemed to have created false or misleading appearance of active trading if proved to have caused a sale of securities where, to his knowledge, there was no change in beneficial ownership of securities – Section creating offence included a defence to prove that the purpose or purposes of the trades was not or did not include purpose of creating a false or misleading appearance of active trading ("proscribed purpose") – Where appellant did not give direct evidence of whether subjective purpose or purposes included proscribed purpose – Trial judge ruled defence not raised and withheld defence from jury – Whether character evidence as to honesty and other evidence in defence case sufficient to require defence to be left to jury – Whether, taking evidence at its highest, jury could conclude on balance of probabilities that appellant lacked proscribed purpose.