Oliver Curtis begins insider trading conviction appeal

Insider trader Oliver Curtis was in prison greens on video link as wife Roxy Jacenko missed his appeal hearing.

Roxy Jacenko and husband Oliver Curtis leave court after a sentencing hearing in June. Pic: Renee Nowytarger

The appeal to overturn white-collar criminal Oliver Curtis’ conviction for insider trading has begun without an appearance from his high-profile publicist wife, Roxy Jacenko.

Curtis’ mother Angela and father Nick — a wealthy former Macquarie banker — were present at the NSW Court of Criminal Appeal for the appeal against the former investment banker’s conviction for conspiracy to commit insider trading.

He was jailed for two years jail with a minimum 12 months behind bars by Justice Lucy McCallum in June for using inside information to trade on shifts in share prices between May 1, 2007 and June 30, 2008, which ultimately resulted in a profit of $1.4 million.

Curtis’s childhood best friend John Hartman was also charged, pleading guilty to his part in the insider trading conspiracy.

Curtis appeared via video link from Cooma Correction Centre in an olive green jumper and shorts during today’s hearing appeal, sitting behind a desk covered in stacks of white papers related to his case. He did not speak during the hearing, except to acknowledge he could hear the proceedings.

His barrister, top Sydney silk Bret Walker SC, submitted the charge of conspiracy to commit insider trading should be overturned as the Crown had not proven Curtis “would, rather than ‘may’, produce insider trading”.

“An agreement to do something which may possibly be an offence is not an indictable conspiracy under the code. That is our case,” Mr Walker told Justices Derek Price, Anthony Payne and David Davies.

He argued there was a “safety device” built into the doctrine which meant it was not enough to prove that possession of insider information “may” result in a criminal offence.

“There was no proof of materiality of any of the dealings which would have been an element of the predicate offence. It’s the may or may not which is at the heart of the case,” he said.

“If somebody sincerely believes what (information) they have is not available but it is available ... that person cannot, notwithstanding the wickedness in his heart, be held to have committed the offence.”

However, crown prosecutor Wendy Abraham QC said it was enough to have proved that Curtis knew what he was doing with the information he had received from Hartman.

“In a nutshell, there is no subjective materiality as postulated by my friend,” she said.

“One can possess drugs which they believe to be cocaine. When they get the object, it is sugar. It is still conspiracy, you can commit a conspiracy where the offence is impossible.”

She said the charge of conspiracy had been proven by the Crown during the trial, which was reflected in the judgment from the jury.

“With conspiracy you are proving the knowledge or belief of facts which, if they came to fruition, are an offence,” she said.

Curtis has been in jail since June, during which time his wife, Ms Jacenko, was diagnosed with breast cancer. The pair have two young children.

Jacenko visited Curtis in Cooma jail last month.

In her sentencing remarks, Justice McCallum said while Hartman had shown remorse, Curtis had not “embraced responsibility for his offending”.

“White-collar crime is a field in which, perhaps more than any other, offending is often a choice freely made by well-educated ­people from privileged backgrounds, prompted by greed rather than the more pernicious influences of ­poverty, mental illness or addiction that grip other communities,” she said.

“The threat of being sent to jail, provided it is perceived as a real threat and not one judges will hesit­ate to enforce, is likely to ­operate as a powerful deterrent to men and women of business.”