Sydney investment banker Oliver Curtis has been wrongly convicted of insider trading because the tip-offs he had may not have moved the price of contracts for difference, a court has heard.
Curtis, 31, appeared in prison greens via videolink from the Cooma Correctional Facility. Curtis is serving a minimum one year in jail after a jury found him guilty of conspiring with his then best friend John Hartman to trade highly leveraged contracts for difference (CFDs).
Curtis' parents, former chairman of rare earth miner Lynas Corp Nick Curtis and his wife Angela, sat through a three-hour appeal hearing on Wednesday as his legal team challenged the insider trading conviction.
Conspicuously missing from the courtroom was Curtis' wife and publicist Roxy Jacenko. She had faithfully accompanied Curtis throughout a three-week jury trial and sentencing hearing in designer outfits.
In an interview with 60 Minutes in August Ms Jacenko had said attending the jury trial put a spotlight on her. "It was like I was on trial," she said.
Curtis wants the NSW Court of Criminal Appeal to overturn the insider trading conviction and release him from jail.
As foreshadowed by his lawyers during the trial, Curtis' appeal focused on the question of whether Mr Hartman's tip-offs could have moved the price of CFDs. The pair allegedly traded CFDs using the inside information Mr Hartman had as an equities dealer at Orion Asset Management. Orion was managing up to $7 billion of funds at the time.
Curtis' barrister, Bret Walker, SC, said on Wednesday ASIC had failed to prove Orion's share intentions would have a material impact on the price of CFDs.
Mr Walker said it would be a "furphy" and "ridiculous" to suggest the trading intentions of Orion would have automatically a material effect on the price of CFDs, because its trading intentions included small transactions such as "topping up to keep the portfolio in a particular state of affairs".
"Topping up may be trivial. So no, trading intentions per se would never be material," Mr Walker said.
"Trading intentions of Orion will involve shaving a little bit off, or adding a little bit to it."
He said to convict Curtis of insider trading, ASIC had to prove he had entered into an agreement that "would be" insider trading, as opposed to one that "may be" insider trading.
Simply entering into an agreement that may be a criminal offence did not make Curtis guilty of insider trading, although it may reveal flaws in his character, Mr Walker said.
"You may be wicked but it's not an offence," he said.
But Crown barrister Wendy Abraham, QC, said a person could be guilty of a conspiracy regardless of whether they made a mistake about facts or whether it is possible to commit the crime in question.
For example, a person who agrees to import white powder, mistakenly believing it is cocaine, would be guilty of a conspiracy even if the powder turns out to be sugar, she said.
"If they agree to possess an item they believe to be cocaine, and it's sugar, it's still a conspiracy," she said.
"You can commit a conspiracy where the offence is impossible," she said.
Mr Hartman served 15 months in jail for his involvement in the crime and appeared as the key witness against his former best friend.
Mr Hartman said the pair used the $1.4 million profit to rent a beachfront apartment in Bondi, buy a Mini Cooper and a Ducati motorcycle for Mr Hartman and go on a luxury holiday in Las Vegas and Whistler.
Curtis had pleaded not guilty. He returned the $1.4 million profit to the Australian Federal Police before his sentencing hearing, without admission of guilt.
The insider trading trial generated headlines around the country and triggered a book deal on Ms Jacenko, to be released at the end of October.
The court will deliver its judgment at a later date.
