Riversgold whistleblower Allan Kelly faces jail, house sale for contempt of court in John Hilton legal battle

Former Riversgold chief executive Allan Kelly could be jailed for criminal contempt of court after being busted sending legally-protected documents to police, market regulators and former colleagues. Supreme Court Justice Fiona Seaward is deciding the freedom and financial fate of the Australian Securities and Investments Commission whistleblower after convicting him of 12 criminal contempt of court charges and six civil contempt counts. The charges were laid by the Perth-based lawyers for Cambodian tenement vendor John Hilton after they realised that Mr Kelly was sharing documents disclosed in a legal battle about Riversgold’s October 2017 float. Mr Hilton claims a prison sentence for Mr Kelly — the miner’s boss from 2016 to 2019 — is the best way to send a signal about the sanctity of court discovery processes. Mr Hilton’s barrister Darren Pratt said only fining Mr Kelly for criminal contempt could tell other potential offenders “that if it’s just a cost, it’s worth doing”. And Mr Pratt asked Justice Seaward to put the Supreme Court action that Mr Kelly launched in 2020 on hold until he pays $300,000 of legal costs and any fines. In hotly contested allegations of misleading and deceptive conduct, Mr Kelly claims a company Mr Hilton vended into Riversgold had never applied for its purported Cambodian gold tenements. Mr Kelly used documents obtained in this civil action to expand on those allegations in emails to WA Police, the ASX and ASIC in 2021 and 2022. His emails were based on documents disclosed by Mr Hilton and subject to court undertakings, including a letter from the Cambodian Ministry of Mines and Energy in April 2017 and a draft terms sheet from a proposed deal in March 2020. Another judge had decided in June 2023 that ASIC should hand over documents related to Mr Kelly despite the regulator saying he was eligible for whistleblower protection. Justice Larissa Strk ruled that Mr Hilton’s subpoena to ASIC fell within a loophole to whistleblower protections affecting matters judges deemed to be in the interest of justice. Finding Mr Kelly guilty of contempt in September last year, Justice Seaward found he knew confidentiality undertakings covering discovered documents applied to regulators such as WA Police, ASIC and the ASX. Justice Seaward found Mr Kellys’ criminal contempt started in October 2021 with an email sent to WA Police under the heading “John Hilton Fraud”. It included an email to police a year later claiming documentary vindication for his allegation that Mr Hilton sold Riversgold a non-existent project. Mr Kelly claimed the April 2017 letter showed the tenements had not been released by the Cambodian authorities and material from 2020 showed the tenements “were finally released . . . but they were finally granted to someone else” in July that year, he said in his email to WA Police. Claiming to have obtained documentary evidence of fraud, Mr Kelly sent three emails to the Australian Stock Exchange and two emails the Australian Securities and Investments Commission between July and October 2022. Meanwhile, Mr Kelly sent two texts to Mr Hilton’s Cambodian geologist Jay Klopper questioning his former university friend’s conduct while referring to the ministry letter and the terms sheet. Mr Kelly’s unlawful sharing of discovered documents came to an end after he sent Skype messages to Mr Hilton’s Cambodian lawyer Heng Pheng on October 21, 2022, attaching a screenshot of the ministry letter. Mr Pheng promptly alerted Mr Hilton. This triggered an investigation by the dealmaker’s lawyers and their laying the groundwork for the prosecution of Mr Kelly for contempt. Justice Seaward found Mr Kelly knowingly breached his court undertaking. The judge said he was “so angry and frustrated” with two advisers to Mr Hilton and former colleagues that “he could not resist” sending the messages showing he was aware of the documents. Arguing against imprisonment or a big legal costs order, Mr Kelly’s barrister Samantha Nadilo said he had only been concerned with reporting conduct to authorities. Mr Kelly, now the executive chairman of explorer Miramar Resources, had already spent about $450,000 fighting the contempt prosecution, and had insufficient income to fund his ongoing legal bills. To pay a fine and costs orders, he would likely have to sell his South Perth home. Justice Seaward reserved her sentencing decision. Mr Pratt said Mr Kelly had committed the offences over a sustained period and was “willing to engage in conduct he knew was wrong”. “We say the fact that Mr Kelly’s motive was anger, and for vindication, is not the least bit exculpatory,” he said.