Regina v Fysh (No 3) [2012] NSWSC 1390

Supreme Court New South Wales

Medium Neutral Citation: Regina v Fysh (No 3) [2012] NSWSC 1390 Hearing dates: 2,5 November 2012 Decision date: 22 November 2012 Before: McCallum J Decision: Publication of reserved reasons for refusing application for directed verdicts Catchwords: CRIME - particular offences - insider trading - no case submission - whether Crown had adduced evidence upon which a jury could convict - 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 Hannes v DPP (No 2) [2006] NSWCCA 373 R v Fysh [2012] NSWSC 1266 R v Fysh (No 2) [2012] NSWSC 1340 R v Rivkin [2004] NSWCCA 7 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: None

Judgment 1HER HONOUR: Stuart Fysh stood trial before me with a jury on four counts of insider trading contrary to sections 1043A(1)(c) and 1311(1) of the Corporations Act 2001 (Cth). On 6 November 2012, I rejected a submission made on his behalf after the close of the Crown case that there was no case to answer. I reserved my reasons, so as not to detain the jury. 2The no case submission was based on two discrete grounds. On 7 November 2012, I published my reasons for rejecting the application insofar as it was based on the first ground, which related to the element of the offence that requires the Crown to prove that the accused possessed the alleged inside information: see R v Fysh (No 2) [2012] NSWSC 1340. It was necessary to publish those reasons at that time, since they were required for the purpose of counsel's closing addresses. 3These are my reserved reasons for rejecting the application insofar as it was based on the second ground, which related to the element of the offence often referred to in shorthand as "materiality". That element requires the Crown to prove that, if the information allegedly possessed by the accused were generally available, a reasonable person would expect it to have a material effect on the price or value of the relevant shares: 1042A of the Corporations Act. That test is satisfied if (and only if) the information would, or would be likely to, influence persons who commonly acquire Division 3 financial products in deciding whether or not to acquire or dispose of the relevant shares: see s 1042D of the Act.