News & Current Affairs
11 July 2014
Jonathan Moylan: crown lawyer tells court he will not press for jail time
Moylan’s barrister says environmental activist, who pleaded guilty to charges of disseminating false information, is remorseful
Crown lawyer David Staehli has told the supreme court he will not press for jail time for an environmental activist whose hoax Australian Stock Exchange email temporarily wiped $314m off the value of Whitehaven Coal.
In January last year, Jonathan Moylan issued a press release on ANZ letterhead saying the bank had withdrawn its $1.2bn loan facility from Whitehaven’s Maules Creek coal project in NSW on environmental and ethical grounds.
Whitehaven’s share price temporarily fell from $3.52 to $3.21, but quickly recovered, with the biggest shareholder being disgraced former mining magnate Nathan Tinkler.
Moylan, 26, pleaded guilty in May to charges of disseminating false information to the market and faced a possible fine of $495,000 or 10 years in jail.
Moylan's barrister, Robert Sutherland, told Justice Davies he intended to "explain not excuse" Moylan's actions. He said his goal was to keep him out of jail. Sutherland said Moylan was remorseful about his actions and apologetic towards shareholders who had lost money.
The court heard fellow activist Murray Drechsler was interviewed by Asic investigators and told them Moylan was surprised the media had reported the hoax media release as fact.
"I think he was surprised that the media released it as true – not as a hoax," Drechsler reportedly told investigators.
Moylan had only intended to draw attention to the environmental impact of the mine, the court heard. In a signed apology read out to the court on Moylan's behalf he apologised, in particular to those who had lost money as a result of the hoax.
"Those who traded on that day have every right to feel deceived and angry as a consequence of my actions," Moylan's apology said. Sutherland added that most journalists who received the hoax email took steps to verify it.
"There were some who did not," he said. "Most experienced business reporters weren't fooled."
Moylan had hoped the release would provoke journalists to inquire about the release, report it as a hoax and embarrass ANZ by forcing the bank to publicly admit that it was a hoax, Sutherland told the court.
"Some [journalists] chose speed over accuracy and to publish first," he said.
But Staehli argued that Moylan knew the information he disseminated was false and did things to make sure the release would be accepted as genuine, such as setting up the email address firstname.lastname@example.org to send the release.
It showed a degree of planning and expectation people would be deceived, Staehli said.
"I'm surprised that [email address] was so easy to obtain," Justice Davies responded.
Moylan also used the ANZ logo on the release, the Crown said, making it seem authentic. It ultimately led to a substantial increase in trading in Whitehaven shares, the court heard.
Staehli said the crown did not accept Moylan would not have known that a drop in Whitehaven shares and loss of money among shareholders may be a consequence of his actions, though he acknowledged it may not have been "at front of mind".
Pressure on the ANZ was, however, "high on Moylan's mind" on the day the press release was issued, he said.
Staehli said he was not suggesting ANZ had lost money as a result of the hoax, or that Moylan was seeking financial advantage. But he added emailing the press release to hundreds of people including media meant it would potentially lead to a "loss of control" of that information, with "significant potential for people to act on that information as if it was genuine."
Moylan had gone to Whitehaven's page on the Australian Stock Exchange website 14 times between August 2012 and January 2013, the court heard.
The crown asked Justice Davies to consider, in sentencing Moylan, that he knew the information was false and engaged in planning and deliberation of the hoax over four days to make it likely it would be accepted as genuine, including setting up a voicemail on his phone to make it seem like he was an ANZ staffer named Toby Kent.
Moylan had researched on the internet the consequences of identity theft prior to issuing the release, the court heard. That and other research indicated Moylan was "aware of what he was getting himself into to a point", Staehli said.
But Sutherland argued the fact Moylan had looked up the consequences of fraud and identity theft – but not the Corporations Act – showed he never considered disruption to shareholders to be a consequence of his actions.
The court also heard that previous cases under the Corporations Act involved a desire to manipulate the market, which Moylan did not appear to be motivated by.
Deterring others from engaging in similar hoaxes should be considered in sentencing, Staehli argued, because of the potential to cause widespread damage. But he added that given Moylan's guilty plea, and unusual motivation – to draw attention to financing of the mine by ANZ – the crown would not press for him to spend time in custody.
It appeared unlikely sentencing of Moylan would be handed down on Friday when the court adjourned for lunch.
The Australian Greens senator Lee Rhiannon attended the court ahead of the sentencing hearing with around 100 other Moylan supporters and said Moylan’s actions had helped draw attention to the controversial Whitehaven coalmine and ANZ’s ongoing finance of destructive coal projects.
“Jonathan is a principled young man,” she said. “He does not deserve to go to jail or face a heavy fine. His courageous actions have been of great significance to the growing movement for climate action and helped the campaign against coal mining.”
Maules Creek farmer Rick Laird fought back tears outside the court before the hearing. He spoke to Moylan on Thursday night and said the activist just wanted to know his fate.
“I suppose it's hard to support the actions of what he did, but I support his reasons for doing it," he said. "He did it for us in the community, to draw attention to the environmental impacts of the mine and the impact on people in the community."
"The community is divided over the mine – many are against it but there are those who work for the mine or who benefit from it, like the local chamber of commerce, who have sold out to the mine."
Simultaneous support rallies took place in Brisbane at King George square and in Tasmania at Parliament Lawns.
Fellow environmental activist Natalie Lowrey, who was detained in Malaysia last month during a protest there, said she was a former flatmate of Moylan. She was also at the Sydney court to support her friend.
"Corporate criminals get off with a slap on the wrist and just a fine all the time," she said.
"Jonathan should not be penalised at all."
But Moylan had powerful people against him too. At the time he was charged, former Commonwealth Bank chief David Murray said the hoax “is no different from robbing someone’s house”.
And Whitehaven chairman, Mark Vaile, said Moylan was “un-Australian,” and that many small investors had lost significant amounts of money during the period of the hoax.
It was reported by Fairfax that shareholders lost no more than $450,360 between them.