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Court of Criminal Appeal 5 February 2004

Regina v Rivkin [2003] NSWCCA 307 revised - 12

[2003] NSWCCA 307

Fraud & dishonesty
APPEAL AGAINST CONVICTION INSIDER TRADING WHETHER MISCARRIAGE OF JUSTICE FORMER PROFESSIONAL ASSOCIATION MEANING OF "INFORMATION" MATERIALITY

Citation: Regina v Rivkin [2003] NSWCCA 307 revised (12 February 2004); full judgment at [2004] NSWCCA 7
Court: New South Wales Court of Criminal Appeal
Date: 5 February 2004
Judge(s): Mason P, Wood CJ at CL, Sully J

Background

The appellant was convicted at trial before Whealy J in the Supreme Court of contravening section 1002G(2) of the Corporations Act 2001, the insider trading provision. The Crown alleged that the appellant possessed and traded on information that was not generally available and that, if it were, would materially affect the price of the relevant securities.

The appellant appealed both conviction and sentence to the Court of Criminal Appeal. Between the conviction and the hearing of the appeal, medical evidence emerged that the appellant had an undiagnosed meningioma (a type of brain tumour) associated with frontal lobe dysfunction. This fresh evidence formed a significant part of the appeal, raising questions about the appellant's fitness to stand trial and the impact of his condition on his conduct and mental state during the proceedings.

The sentence imposed by the trial judge had included a finding of "contemptuous arrogance" and an absence of contrition, which the appellant also challenged.

  • Whether the trial judge had actual or ostensible bias arising from a former professional association with a party, and whether personal animosity infected the sentencing
  • Whether the trial judge erred in failing to direct a verdict of acquittal, including questions about the meaning of "information" under the Corporations Act and whether the appellant possessed the information as particularised
  • Whether the jury's verdict was unreasonable on the evidence
  • Whether evidence was wrongly admitted or excluded, including medical evidence concerning a witness's capacity to give reliable evidence
  • Whether the trial judge's summing-up was unfair, including the use of judicial comment and warnings
  • Whether the fresh evidence of an undiagnosed meningioma and frontal lobe dysfunction was relevant to fitness to stand trial, any miscarriage arising from inappropriate behaviour at trial, the mental element of the offence, and sentencing
  • Whether the sentence was manifestly excessive or reflected a miscarriage of the sentencing judge's discretion

Decision

The Court of Criminal Appeal dismissed both the conviction appeal and the sentence appeal. On bias, the court found no actual or ostensible bias established. A former professional association between the trial judge and a connected party did not, in the circumstances, give rise to a reasonable apprehension of bias, and the claim of personal animosity in sentencing was not made out.

On the directed acquittal ground, the court found no error. The meaning of "information" under the Corporations Act was addressed, and the court was satisfied that the evidence was sufficient to support the jury's verdict. The verdict was not unreasonable. Evidentiary challenges, including the admissibility of medical evidence concerning a witness's capacity to give reliable evidence or to present more attractively, were also resolved against the appellant.

The fresh evidence of the meningioma received close attention. The court accepted that the law's concern with fitness to stand trial goes to a person's capacity to understand and follow proceedings, not to maximising their capacity to present as an attractive personality. On that basis, the fresh medical evidence did not establish that the appellant had been unfit to stand trial or that any miscarriage of justice had occurred. The evidence also did not undermine the mental element of the offence as found by the jury.

On sentence, the court affirmed that insider trading is not a victimless crime and that the sentencing judge was correct to apply principles of personal and general deterrence. The court reaffirmed that sentencing courts must not be swayed by community attitudes promoted by media coverage, whether those attitudes favour leniency or severity. The finding of "contemptuous arrogance" and absence of contrition stood. The fresh medical evidence did not warrant intervention on sentence where there was no evidence of any change of attitude by the appellant.

Orders Made

  • Appeal against conviction dismissed
  • Appeal against sentence dismissed

Key Takeaways

  • Fitness to stand trial is assessed by reference to a person's capacity to understand and follow proceedings, not by whether a medical condition may have diminished their ability to present favourably to a jury or judge.
  • Fresh evidence of an undiagnosed brain tumour did not establish unfitness or a miscarriage of justice where the evidence did not show the appellant lacked the cognitive capacity required for a fair trial.
  • Insider trading under section 1002G(2) of the Corporations Act 2001 is not a victimless crime, and sentencing courts may properly apply both personal and general deterrence.
  • Sentencing courts carry a duty to resist community attitudes promoted by media coverage in individual cases, whether those attitudes would push sentences higher or lower than the law independently requires.
  • No error was established in the trial judge's summing-up or in the evidentiary rulings, including the exclusion of medical evidence directed at enhancing a witness's perceived credibility rather than addressing genuine reliability concerns.

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

Cases:
- Ebner v Official Trustee (2000) 205 CLR 337
- Johnson v Johnson (2000) 201 CLR 488
- Webb & Hay v The Queen (1994) 181 CLR 41
- Doney v The Queen (1990) 171 CLR 207
- Domican v The Queen (1992) 173 CLR 555
- Eastman v The Queen (2000) 203 CLR 1
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- Palmer v The Queen (1998) 193 CLR 1
- S v The Queen (1989) 168 CLR 266
- R v Hannes (2000) 158 FLR 359; [2002] 173 FLR 1
- R v Presser [1958] VR 45
- Toohey v Metropolitan Police Commissioner [1965] AC 595
- R v Turner [1975] QB 834
- Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376
- Dovade Pty Limited v Westpac Banking Group (1999) 46 NSWLR 168
- R v Mailes (2001) 126 A Crim R 20
- R v ITA [2003] NSWCCA 174