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37
Court of Criminal Appeal 5 February 2004

Regina v Rivkin

[2004] NSWCCA 7

Also reported as (2004) 59 NSWLR 284
Fraud & dishonesty
APPEAL AGAINST CONVICTION INSIDER TRADING WHETHER MISCARRIAGE OF JUSTICE FORMER PROFESSIONAL ASSOCIATION MEANING OF "INFORMATION" MATERIALITY

Citation: Regina v Rivkin [2004] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 5 February 2004
Judge(s): Mason P, Wood CJ at CL, Sully J

Background

The appellant was a prominent businessman convicted by a jury on 30 April 2003 of insider trading, contrary to s 1002G(2) of the Corporations Act 2001. The Crown alleged that on 24 April 2001 he received a telephone call from the Executive Chairman of Impulse Airlines conveying confidential information about a proposed merger between Impulse and Qantas, including the need for ACCC approval and an expectation that approval would be granted. Later that morning, he procured a company in which he had an interest to purchase 50,000 Qantas shares.

The trial judge sentenced the appellant to nine months' periodic detention and a fine of $30,000. Periodic detention allowed the appellant to serve his sentence on a part-time basis, rather than by way of full-time imprisonment.

On appeal, the appellant raised numerous grounds challenging both his conviction and his sentence. He also sought to rely on fresh medical evidence revealing that he had been suffering from an undiagnosed meningioma, a slow-growing brain tumour causing frontal lobe dysfunction, at the time of trial.

  • Whether the trial judge was actually or ostensibly biased, including by reason of a former professional association with a Crown witness and an alleged "personal animosity" reflected in the sentence
  • Whether the trial judge erred in declining to direct a verdict of acquittal, including in relation to the meaning of "information" under the Corporations Act and whether the appellant possessed the information as particularised
  • Whether evidence was wrongly admitted or excluded, including medical evidence about a witness's capacity to give reliable testimony
  • Whether the summing-up was unfair
  • Whether the verdict was unreasonable
  • Whether the appellant was unfit to stand trial at the time, by reason of the undiagnosed brain tumour
  • Whether the fresh medical evidence established a miscarriage of justice relating to fitness, conduct at trial, the mental element of the offence, or sentence
  • Whether the sentence was manifestly excessive or the product of a miscarriage of the sentencing discretion

Decision

Conviction appeal. The Court dismissed all grounds directed at the conviction. It found no actual or ostensible bias on the part of the trial judge. The former professional association raised did not give rise to a reasonable apprehension of bias, and no personal animosity was established. The Court also rejected the argument that the trial judge should have directed an acquittal, finding that sufficient evidence existed to support the jury's finding that the appellant possessed the particularised inside information and knew, or ought reasonably to have known, of its character.

Fitness and fresh medical evidence. The fresh evidence established that the appellant had an undiagnosed meningioma causing frontal lobe dysfunction at the time of trial. The Court acknowledged this was significant, but held that the legal test for fitness to stand trial concerns a defendant's capacity to understand and follow proceedings, not the capacity to present as an attractive or engaging personality. The Court found that the dysfunction, while it may have affected the appellant's presentation and interpersonal behaviour, did not render him incapable of following the trial. Equality before the law requires that the fitness inquiry not be distorted into an inquiry about whether a defendant was able to maximise the impressiveness of their presentation.

Sentence appeal. The Court rejected the contention that the sentence was manifestly excessive. It affirmed that insider trading is not a victimless crime and that personal and general deterrence were legitimate sentencing considerations. The Court firmly stated that sentencing courts must not be swayed by media-generated community attitudes in any particular case, and equally must not depart from principle by overcompensating in the other direction. The trial judge's finding of "contemptuous arrogance" and absence of contrition were relevant. The fresh medical evidence did not demonstrate that the appellant's condition would prevent him from serving periodic detention, or would render it disproportionately harsh.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but appeal against sentence dismissed

Key Takeaways

  • The legal test for fitness to stand trial focuses on a defendant's capacity to understand and follow proceedings, not on whether any cognitive impairment limited the defendant's ability to present as credible or sympathetic to the jury.
  • Fresh medical evidence of an undiagnosed psychiatric or neurological condition at the time of trial will not automatically establish a miscarriage of justice; its relevance must be assessed against each specific ground of appeal on which it is relied.
  • Insider trading is not a victimless offence, and both personal and general deterrence are legitimate considerations in sentencing for white-collar criminal conduct.
  • Sentencing courts carry a duty to apply legal principle to the facts of the individual case, and must not be influenced by media-driven perceptions of community attitudes, whether those attitudes call for harsher or more lenient treatment.
  • A finding of absence of contrition and a characterisation of the offender's conduct as reflecting contemptuous arrogance are matters properly taken into account in the sentencing exercise, even where the offender is of otherwise good character.

Legislation and Cases Referenced

Legislation:
- Corporations Act 2001 (Cth), ss 1002A, 1002B, 1002C, 1002G
- Evidence Act 1995 (NSW), ss 102-110
- Crimes Act 1914 (Cth), ss 16A, 17A, 20AB
- Criminal Appeal Act 1912 (NSW), s 5(1)(a), (c)

Cases (selected):
- Ebner v Official Trustee (2000) 205 CLR 337
- Johnson v Johnson (2000) 201 CLR 488
- Webb & Hay v The Queen (1994) 181 CLR 41
- Eastman v The Queen (2000) 203 CLR 1
- Doney v The Queen (1990) 171 CLR 207
- R v Presser [1958] VR 45
- Domican v The Queen (1992) 173 CLR 555
- Toohey v Metropolitan Police Commissioner [1965] AC 595
- Palmer v The Queen (1998) 193 CLR 1
- R v Mailes (2001) 126 A Crim R 20