Reported Decision : [2000] 158 FLR 359 [2000] 36 ACSR 72 New South Wales Court of Criminal Appeal CITATION : REGINA v HANNES [2000] NSWCCA 503 FILE NUMBER(S) : CCA 60600/99; 60508/99 HEARING DATE(S) : 30 October 2000 31 October 2000 JUDGMENT DATE : 1 December 2000 PARTIES : Regina Simon Gautier Hannes JUDGMENT OF : Spigelman CJ at 1; Studdert J at 397; Dowd J at 485 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0562 97/11/0502 LOWER COURT JUDICIAL Backhouse DCJ OFFICER : COUNSEL : D F Jackson QC/M Wigney (Appellant) T Game SC/ D Hammerschlag (Crown) SOLICITORS : Phillips Fox (Appellant) Commonwealth Director of Public Prosecutions (Crown) CATCHWORDS : CRIMINAL LAW - summing up - adequacy and fairness - CRIMINAL LAW - non-consensual verdict - EVIDENCE - handwriting opinion evidence - Evidence Act 1995, ss55 and 56 - EVIDENCE - hearsay - "intended" representation, Evidence Act 1995, s59 - CRIMINAL LAW - direction given when accused does not give evidence - "Weissensteiner direction" - Evidence Act 1995, s20 Corporations Law Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) LEGISLATION CITED : Criminal Procedure Act 1986 (NSW) Evidence Act 1898 (NSW) Evidence Act 1995 Financial Transaction Reports Act 1988 (Cth) Jury Act 1977 (NSW) Adami v The Queen (1959) 108 CLR 605 Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 Cleland v The Queen (1982) 151 CLR 1 Connell v The Queen (No 6) (1992) 12 WAR 133 Domican v The Queen (1991-1992) 173 CLR 555 Jones v Dunkel (1958-1959) 101 CLR 298 KBT v The Queen (1996-1997) 191 CLR 417 Lee v The Queen (1998) 195 CLR 594 M v The Queen (1994) 181 CLR 487 Papakosmas v The Queen (1999) 196 CLR 297 Pollitt v The Queen (1991-1992) 174 CLR 558 R v Black (1993) 179 CLR 44 R v Browne-Kerr [1990] VR 78 R v Casey (1926) 26 SR (NSW) 189 CASES CITED: R v Fowler [2000] NSWCCA 142 R v Guerin [1967] 1 NSWR 255 R v Holden [1974] 2 NSWLR 548 R v Hong Jus Ten and Eng Chin Ei (Western Australian Court of Criminal Appeal, 6 November 1972, unreported) R v Ives [1973] QdR 128 R v OGD (1997) 45 NSWLR 744 R v Piazza (1997) 94 ACrimR 459 R v Sorlie (1925) 25 SR (NSW) 532 R v Zorad (1990) 19 NSWLR 91 RPS v The Queen (2000) 74 ALJR 449 Shepherd v The Queen (1990) 170 CLR 573 Spies v The Queen (2000) 74 ALJR 1263 Stoddart's case (1909) 2 CrAppR 217 Walton v The Queen (1988-1989) 166 CLR 283 Weissensteiner v The Queen (1993) 178 CLR 217 DECISION : 1 Appeal allowed; 2 Convictions quashed; 3 There be a new trial on all counts; 4 Crown appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60508/99 60600/99 SPIGELMAN CJ STUDDERT J DOWD J Friday 1 December 2000 REGINA v Simon Gautier HANNES The Appellant was convicted of one charge of insider trading under s1002G(2) and s1311 of the Corporations Law and two charges under s31(1) of the Financial Transaction Reports Act 1988 (Cth). The prosecution arose from circumstances in which a person who identified himself as "M. Booth" instructed Ord Minnett Brokers to acquire options to purchase shares in TNT Limited with a strike price of $2 maturing in November 1996. After these options were purchased an announcement was made that TNT would be taken-over at a price of $2.45 per share. This announcement resulted in a substantial increase in the price of the options which resulted in the contracts bought in the name of "M. Booth" returning a profit of over $2 million. The Appellant was an Executive Director of Macquarie Corporate Finance, a division of Macquarie Bank Limited which for some time had advised TNT. The key issues in the insider trading charge were whether or not the Appellant had access to and made use of information obtained at Macquarie Corporate Finance with respect to the prospect of a take-over of TNT and whether he had purchased the TNT options in the name of "M. Booth". The central issue in the Financial Transaction Reports Act charges concerned the circumstances in which the Appellant came to withdraw cash from his personal account, and the circumstances in which bank cheques were acquired and deposited into the account from which the purchase of the options was funded. Held Summing Up - Generally (Per Spigelman CJ, Studdert and Dowd JJ agreeing) 1 Discussion of appropriate approach to analysis of summing up on appeal. Jones v Dunkel (1958-1959) 101 CLR 298, R v Holden [1974] 2 NSWLR 548, R v Hong Jus Ten and Ing Chin Ei (Western Australian Court of Criminal Appeal, 6 November 1973, unreported), R v Piazza (1997) 94 ACrimR 459, R v Sorlie (1925) 25 SR (NSW) 532, R v Zorad (1990) 19 NSWLR 91, Stoddard's Case (1909) 2 CrAppR 217 referred to. ([106]-[110]) 2 Discussion of need for a trial judge to give fair and balanced directions to the jury. Cleland v The Queen (1982) 151 CLR 1, Domican v The Queen (1991-1992) 173 CLR 555, RPS v The Queen (2000) 74 ALJR 449, R v Guerin [1967] 1 NSWR 255 referred to. ([111]-[117], [175]) Appropriate directions on use to which the fact that an accused does not give evidence may be put (Per Spigelman CJ, Studdert and Dowd JJ agreeing) 3 Since the trial, the High Court has decided RPS v The Queen supra which confined the circumstances in which a trial judge should direct the jury that it can draw inferences more safely because of the failure of the accused to give evidence pursuant to the earlier High Court decision in Weissensteiner v The Queen (1993) 178 CLR 217. ([124]) 4 Before a Weissensteiner direction can be given, the prosecution must specify the particular evidence which could be expected to come only from the accused. RPS v The Queen supra considered. This requirement was not satisfied in respect of one of the inferences on which the trial judge commented - that "Hannes was Booth". ([163]-[164]) The appeal should be upheld with respect to all charges on this basis. ([170]) The appeal from the insider trading conviction should also be upheld by reason of the Weissensteiner direction with respect to knowledge of the take-over. ([167]) 5 It may not be appropriate to give a Weissensteiner direction when an accused faces multiple charges with different elements. However there was no relevant distinction between the charges in this case. R v OGD (1997) 45 NSWLR 744 distinguished. ([131]-[135]) Trial Judge's Directions 6 The trial judge's direction that it was irrelevant if "another person was involved" created a risk of confusion on the part of the jury. ([172]-[216]) 7 The appeal with respect to other directions of the trial judge concerning elements of the insider trading charge, not upheld. ([217]-[299]) Grounds of Appeal concerning Evidence 8 Grounds of appeal based on the rejection of a draft broker's report, the admission of conversations and the summarising of expert evidence, rejected. ([300]-[322]) Handwriting Evidence (Per Dowd J, Spigelman CJ and Studdert J agreeing) 9 There was evidence before the jury from which it could be inferred that all documents used as control documents for the purposes of the opinion evidence on handwriting were written by the Appellant. ([487]-[502]) (Per Spigelman CJ, Studdert and Dowd JJ agreeing) 10 The admissibility of a document tendered for the purpose of providing a standard for comparison for handwriting under the Evidence Act is determined by s56(1) which provides that evidence which is relevant is admissible. This approach differs from that previously existing under the common law. ([323]-[328]) Identification Evidence (Per Dowd J, Spigelman CJ and Studdert J agreeing) 11 There was no breach of s3ZO(2) of the Crimes Act 1914 (Cth) to enliven the exclusionary provision in s138 of the Evidence Act 1995 as at the time the photoboards were used, the investigators did not have a "suspect". ([520]-[534]) Admissibility of MFI 95 (Per Spigelman CJ, Dowd J agreeing, Studdert J contra) 12 The statements in MFI 95 were relevant because the circumstances in which the document was made - that it was a personal rumination and the that it was not retained - mean it is probative of the facts asserted. Papakosmas v The Queen (1999) 196 CLR 297 applied. ([331]-[337]) (Per Spigelman CJ, Dowd J agreeing, and per Studdert J) 13 The representations in MFI 95 are excluded by the operation of s59 of the Evidence Act. ([338]-[361]), [475]-[478]) (Per Studdert J, Spigelman CJ and Dowd J agreeing) 14 The document was not admissible under s72 of the Evidence Act because evidence of the Appellant's intention at the time that document was written was not relevant to a fact in issue. ([479]-[480]) 15 The document was not admissible under s81(2) of the Evidence Act because it did not contain representations that have a link sufficient for the purposes of s81(2) with any admission made by the Appellant. ([481]-[483]) FTRA Counts (Per Studdert J, Spigelman CJ agreeing with additional reasons and and Dowd J agreeing) 16 The trial judge's direction that it was sufficient for the Crown to prove that the Appellant was a party to two or more of the six withdrawal and nine payment transactions particularised, respectively, in the second and third counts, was in error as it failed to alert the jury to the need for unanimity on the two transactions selected. ([421]-[426]) 17 In respect of the second count there was no possibility of a miscarriage of justice because there was no rational basis for distinguishing between the withdrawals particularised. KBT v The Queen (1996-1997) 191 CLR 417 distinguished. ([429]-[436]) 18 In respect of the third count, there was no need, given the other directions that her Honour had given, for a specific direction that the jury had to be unanimous in their finding as to the same transaction. The jury could only find the Appellant was a party to seven of the payments particularised, if they were satisfied beyond reasonable doubt that the Appellant was "Booth". KBT v The Queen supra distinguished. ([437]-[458], [365]) Non-Consensual Verdict (Per Dowd J, Spigelman CJ and Studdert J agreeing) 19 There is no basis for concluding that the jury were pressured by the length of the trial or deliberations, or that the jury's verdict was other than consensual. ([535]-[548]) Unreasonable Verdict (Per Spigelman CJ, Studdert and Dowd JJ agreeing) 20 It was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of all of the offences. The verdict was not unreasonable with the meaning of that phrase in Criminal Appeal Act 1912, s6(1). ([367]-[388]) New Trial or Acquittal (Per Spigelman CJ, Studdert and Dowd JJ agreeing) 21 The strength of the Crown case and the public interest involved in the prosecution of this offence are such that the proper order is for a new trial. ([389]-[395]) Orders 1 Appeal allowed 2 Convictions quashed. 3 There be a new trial on all counts. 4 Crown appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60508/99 60600/99 SPIGELMAN CJ STUDDERT J DOWD J Friday 1 December 2000 REGINA v Simon Gautier HANNES JUDGMENT 1 SPIGELMAN CJ: This is an appeal from the conviction of the Appellant on 11 August 1999 of one charge of insider trading, under s1002G(2) and s1311 of the Corporations Law, and from his conviction on 6 August 1999 of two charges, under s31(1) of the Financial Transaction Reports Act 1988 (Cth) (the "FTRA"). On 17 September 1999, her Honour Judge Backhouse of the District Court imposed a sentence on the Appellant of two years and two months imprisonment and a fine of $100,000 for the insider trading charge. Her Honour imposed a sentence of four months imprisonment and a fine of $5,000 for each charge under the FTRA. The terms of imprisonment were to be served concurrently. Her Honour fixed a recognisance release period after eighteen months. The Crown has appealed against the alleged inadequacy of the sentences. 2 The trial was concerned with the circumstances in which a person, who identified himself as "M. Booth", instructed, on or about 17 September 1996, Ord Minnett brokers to acquire options to purchase shares in TNT Limited, a publicly listed company. The options had a strike price of $2, and matured in November 1996. Pursuant to this order, options were purchased between 18 and 20 September at prices up to 2c per option, until the total amount purchased equalled the amount in a cash management trust in the name "M. Booth". On 2 October 1996 an announcement was made that TNT would be taken over at a price of $2.45 per share. By reason of this announcement, the price of the November options increased substantially. The profit on the option contracts bought in the name of "M. Booth" was of the order of $2 million. 3 The Appellant was an executive director of the merchant bank Macquarie Corporate Finance ("MCF") a division of Macquarie Bank Limited, which had, for some time, been advising TNT. 4 The key issues on the insider trading charge were whether or not the Appellant had access to and made use of MCF information as an insider with respect to the prospect of a takeover and whether he had purchased the TNT options in the name of "M. Booth". The central issue on the FTRA charges concerned the circumstances in which the Appellant came to withdraw cash from his account and to acquire bank cheques, which cheques were paid into the account from which the options were acquired. 5 The three counts in the indictment were as follows: "… that SIMON GAUTIER HANNES 1 between 17 September 1996 and 20 September 1996 at Sydney in the State of New South Wales, contravened s1002G(2) of the Corporations Law in that he (a) being possessed of information that was not generally available but which, if it were generally available, a reasonable person would expect it to have a material effect on the price or value of securities of a body corporate, namely $2.00 November 1996 option contracts to buy shares in TNT Limited; and (b) knew or ought reasonably to have known that such information was not generally available and that if it were generally available it might have a material effect on the price or value of those securities purchased securities of TNT Limited namely 5000 $2.00 November 1996 option contracts to buy shares in TNT Limited. … that SIMON GAUTIER HANNES 2 on 9 September, 1996 at Sydney in the State of New South Wales was a party to two or more non-reportable cash transactions, as defined under the Financial Transaction Reports Act , 1988, and having regard to the manner and form in which those transactions were conducted, it would be reasonable to conclude that he conducted those transactions in that manner and form for the dominant purpose of ensuring that the currency involved in those transactions was transferred in a manner and form that would not give rise to a significant cash transaction as defined under the Financial Transaction Reports Act, 1988. … that SIMON GAUTIER HANNES 3 on 9 September, 1996 at Sydney in the State of New South Wales, was a party to two or more non-reportable cash transactions, as defined under the Financial Transaction Reports Act, 1988, and having regard to the manner and form in which those transactions were conducted, it would be reasonable to conclude that he conducted those transactions in that manner and form for the dominant purpose of ensuring that the currency involved in those transactions was transferred in a manner and form that would not give rise to a significant cash transaction as defined under the Financial Transaction Reports Act, 1988." 6 With respect to the first count the Crown supplied particulars of the Information as follows: "There was a prospect that shares in TNT would be the subject of a takeover. There was a prospect that the offer would be at a price in excess of $2 per share. The Corporate Advisory Division of Macquarie Corporate Finance (MCF) was advising TNT in connection with that possible takeover and had placed securities in TNT on an embargo list." 7 With respect to the second count, the particulars of transactions supplied were, six cash withdrawals all occurring on 9 September 1996, four of which were in the amount of $9,000, one in the amount of $9,900 and one in the amount of $6,000. The withdrawals were made from six different branches in different parts of Sydney. With respect to the third count, the particulars of transactions supplied were, nine bank cheques each acquired for cash on 9 September 1996 from nine different bank branches. Eight of the cheques were in the amount of $9,000 and one for $9,900. Each bank cheque was payable to Perpetual Trustee Co Limited - Ord Minnett Cash Management Trust. The cheques were paid into the account from which the TNT options were funded. 8 The trial was a long and complex one. It took 36 sitting days up to the time of the trial judge's summing-up to the jury. The Crown called 45 witnesses (including three expert witnesses) and the defence called two witnesses (one an expert). There were more than 200 exhibits, some voluminous. The closing addresses of the Crown and senior counsel for the Appellant continued over six sitting days. The trial judge's summing-up proceeded over four days. Further directions were given in response to questions from the jury. 9 On the eighth day of the jury's deliberations, a verdict of guilty was returned on the two FTRA counts. The jury then indicated that they had been unable to reach a unanimous verdict on the insider trading count. The trial judge gave the jury a direction of the character identified in R v Black (1993) 179 CLR 44. The jury deliberated for a further two days before returning a verdict of guilty on the insider trading count. 10 This appeal has been inordinately delayed to the extent that the Appellant has served all but three months of his recognisance release period. This delay is not attributable to the Crown. 11 Notice of Appeal against conviction was filed on 3 September 1999. The Crown lodged its appeal against sentence on 8 October 1999. Both appeals were listed for mention in this Court on 22 November 1999 and again on 13 December 1999. On these dates the transcript of the summing-up was not available. The matter was stood over until 7 February 2000. The transcript became available on 21 December 1999. On 7 February, the Appellant asked that the matter be adjourned to 10 April 2000. The Appellant engaged new counsel to prepare amended grounds of appeal and to appear. The amended Notice of Appeal was filed with the Court on 22 May 2000, subject to the Appellant's formal instructions. On 26 May 2000 the appeals were fixed for hearing at a date convenient for senior counsel engaged by the Appellant. 12 On a number of occasions the Crown expressed concern as to the delay. At the callover on 10 April 2000, senior counsel for the Crown asked the Court to note that the Crown would resist any submission that the Court not order a retrial as a matter of discretion, on the basis that the sentence had been served by the time the appeal was heard. 13 It can readily be seen that, for a person in Mr Hannes' position, the conviction itself is of great significance. He has, understandably, proceeded on the basis that he would accept delay in order to permit him to put forward the best possible case, with counsel of his choice. The Crown took appropriate steps to protect its position in the light of the delay so occasioned. The Statutory Provisions 14 The insider trading offence was constituted by s1311 of the Corporations Law, which relevantly provides: "1311(a) A person who: (a) does an act or thing that the person is forbidden to do by or under a provision of this law; … is guilty of an offence by virtue of this subsection …" 15 The forbidden act was found in s1002G(2), which relevantly provides: 1002G(2) The insider must not (whether as principal or agent): (a) … purchase … any such securities …" 16 The references in this paragraph to both "the insider" and to "such securities" relate back to s1002G(1) which is the subsection that identifies the additional elements of the offence by specifying each of the circumstances which, cumulatively, have the consequence that a purchase of securities will constitute a contravention and, accordingly, an offence. 17 That subsection provides: "1002G(1) Subject to this Division, where: (a) a person (in this section called the insider ) possesses information that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities of a body corporate; and (b) the person knows, or ought reasonably to know, that: (i) the information is not generally available; and (ii) if it were generally available, it might have a material effect on the price or value of those securities …" Each of the provisions are the subject of further definition. 18 By s1002A the word "securities" in Div 2A, entitled "Insider trading", is defined, inter alia, to include: "(e) an option contract under which a party acquires from another party an option or right, exercisable at or before a specified time, to buy from, or sell to, that other party a number of securities of a kind referred to in paragraph (a), (b), (c) or (d) at a price specified in, or to be determined in accordance with, the contract". 19 The definition of "securities" specifies that in relation to a body corporate that word means, inter alia, "shares in the body corporate". 20 There was no issue at the trial, or in this Court, that the options contract over shares in TNT were within the section. Issues did however arise with respect to other elements within s1002G(1). 21 First, "possesses information". The word "information" is defined inclusively in s1002A(1) to extend to: (a) "matters of supposition and other matters that were insufficiently definite to warrant being made to the public; (b) matters relating to the intentions, or the likely intentions, of a person." 22 Secondly, "not generally available". The positive form "generally available" is defined in s1002B(2) in the following terms: "1002B(2) Information is generally available if: (a) it consists of readily observable matter; or (b) without limiting the generality of paragraph (a), both the following subparagraphs apply: (i) it has been made known in a manner that would, or would be likely to, bring it to the attention of persons who commonly invest in securities of bodies corporate of a kind whose price or value might be affected by the information; and (ii) since it was so made known, a reasonable period for it to be disseminated among such persons has elapsed." 23 Furthermore, s1002B(3) adds the following: "1002B(3) Information is also generally available if it consists of deductions, conclusions or inferences made or drawn from either or both of the following: (a) information referred to in paragraph (2)(a); (b) information made known as mentioned in subparagraph (2)(b)(i)." 24 Thirdly, "material effect". The standard of what a reasonable person would expect is set out in s1002C: "1002C For the purposes of this Division and section 1013, a reasonable person would be taken to expect information to have a material effect on the price or value of securities of a body corporate if the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether or not to subscribe for, buy or sell the first-mentioned securities." 25 Fourthly, the mental element. The two factors which that person must know, or ought reasonably to know, are set out in s1002G(1)(b)(i) and (ii) as quoted above. 26 This outline of the statutory scheme establishes the central significance of identified "information" in any proceedings for an offence for contravention of s1002G(2). It is specific information which: (i) a person must "possess". (ii) must not be "generally available". (iii) if it were generally available, would have a material effect. (iv) the person knows, or ought to know, both that it is not generally available and, if it were, that it might have a material effect. 27 Accordingly, the particulars of Information supplied by the Crown, as quoted above, were a critical aspect of the Crown case and of the conduct of a fair trial. 28 The 'Information' on which the Crown relied for each of the purposes for which that term is material in s1002G of the Corporations Law, consisted of the cumulative effect of four separate elements: the prospect of a take-over, the price at which the take-over would occur, the fact that MCF was advising TNT in connection with that take-over and, finally, that MCF had placed securities in TNT on an embargo list. All four of these aspects were part of the Crown case. 29 The Crown did not seek to amend the above particulars at any time. The Appellant did not object to the particulars provided in any respect and did not seek further particularisation. The particulars were before the jury as the "Information" which it had to find existed in the respects for which the concept is used in the section creating the offence. 30 The relevant provisions of the FTRA are set out in the judgment of Studdert J. The Crown Case 31 As quoted above, between 18 and 20 September 1996 Ord Minnett brokers acquired, on behalf of a client, TNT November call options at a strike price of $2. The price of TNT shares at the time of the acquisition of the options was between $1.56 and $1.59. The brokers were acting on behalf of a client known to them as "Booth". The broker who conducted the transactions, Mr Andrew Staehli of Ord Minnett, never met "Booth". His communications with a person purporting to be "Booth" had occurred on the telephone and in correspondence. The account in the name of "M. Booth" had been opened on 17 September 1996. The standard form documentation required by Ord Minnett is in that name. The Cash Management Account was given Investment Number B3133. 32 Funds were placed in the Ord Minnett Cash Management Account between 6 September 1996 and 9 September 1996 by ten bank cheques. Each of the bank cheques had been acquired for cash at the bank branches, in the amounts and on the dates following: BANK BRANCH AMOUNT DATE CBA 48 Martin Place $9,000 6/9/96 CBA Camperdown $9,000 9/9/96 ANZ Camperdown $9,000 9/9/96 ANZ Leichhardt $9,000 9/9/96 NAB Leichhardt $9,000 9/9/96 CBA Leichhardt $9,900 9/9/96 Westpac Annandale $9,000 9/9/96 Westpac Roseville $9,000 9/9/96 NAB Roseville $9,000 9/9/96 CBA 200 George Street $9,000 9/9/96 33 The bank cheque acquired on 6 September 1996 was not provided as a particular of count 3, the FTRA payments charge. The Crown case was that it was on that date that Mr Hannes acquired information about the reporting obligations under that Act. 34 The Crown called evidence to show that the Appellant had access to the requisite amount of cash on the relevant dates. The Appellant conducted, in his own name, an account at the Commonwealth Bank of Australia, Wynyard branch. On 5 September 1996 the Appellant transferred to that account an amount of $200,000 from an account he controlled at Ord Minnett brokers. On 6 September 1996 three cash withdrawals were made from that account. An amount of $20,000 was withdrawn at the CBA Pitt Street/Martin Place branch; an amount of $10,000 was withdrawn at the CBA Chatswood branch; an amount of $10,000 was withdrawn at the CBA Circular Quay branch. 35 These three withdrawals on 6 September 1996 were not provided as particulars of Count 2, the FTRA withdrawals charge. As they were reportable transactions, they could not have been particularised. In any event, as noted above, the Crown case was that it was only after that date that Mr Hannes structured the financial transactions to avoid the reporting requirements under that Act. 36 The six withdrawals which were particularised for the FTRA charge were as follows: BANK BRANCH AMOUNT DATE CBA Neutral Bay $9,000 9/9/96 CBA Crows Nest $9,900 9/9/96 CBA Liverpool / Castlereagh St $9,000 9/9/96 CBA Park / Castlereagh St $9,000 9/9/96 CBA Town Hall $9,000 9/9/96 CBA Wynyard $6,000 9/9/96 37 All of the withdrawals and bank cheque acquisitions were relied on for purposes of the insider trading charge. 38 There was little dispute either at the trial or in the appeal, with respect to the basic steps taken that led to the acquisition of the TNT call options. The evidence of Vanessa Heperi, a cash manager at Ord Minnett, concerning the opening of an Ord Minnett Cash Management Trust Account B3133 was not challenged. The evidence of Andrew Staehli, a stockbroker with Ord Minnett, who received instructions to acquire the TNT options, with payment from the aforesaid cash management account, was also not challenged in any material respect. 39 An application form dated 1 September 1996 was used to open the cash management account B3133. The application was in the name of and signed by "M. Booth", with an address given as "Suite 140, 656 Military Road, Mosman, New South Wales, 2088". This is a mailbox. It was opened by "Mark Booth" who indicated that he had no identification with him at the time. The fee was paid in cash. The contact phone number and address given was the Intercontinental Hotel. The Crown proved that no-one of that name was a resident of the hotel at any relevant time. 40 The cash management account was opened with an initial deposit of $9,000. Each of the nine bank cheques referred to above were deposited in this account. The first deposit was the CBA Martin Place bank cheque. It was deposited on 6 September 1996. Under a covering note of 9 September, the other eight bank cheques were deposited on that day. 41 Ms Heperi said that she received a telephone call on 17 September 1996 from someone who identified himself as "M. Booth" requesting information on the cash management account and specifically the account balance. He said that he wanted to start trading with Ords and did not have an adviser at Ords. She transferred him to the switch and advised that he was a new trader. 42 Mr Staehli gave evidence that on 17 September 1996 he received a phone call from "Mark Booth" who wanted to trade in options. Arrangements were made for "Booth" to pick up an application from Ord Minnett reception. "Booth" asked for a quote on TNT November $2 options, Mr Staehli quoted between 1-2c and said it was a "fairly risky option to buy". "Booth" asked Mr Staehli to invest the $90,000 which was in "Booth's" cash management account in options. "Booth" said he was staying in a hotel and provided the phone numbers 9230 0200 and 955 7070, the former being the number at the Intercontinental Hotel and the latter having one digit less than a Sydney telephone number and not otherwise identified. 43 On 19 September 1996 Mr Staehli received an envelope with a letter of instructions, an Options Client Agreement, an Application for Individual Account and Sponsorship Agreement. Mr Staehli completed a form document entitled Record of Interview re Opening New Account. 44 The letter of instructions of 17 September 1996 was signed "M Booth". It confirmed that Mr Staehli should acquire TNT $2 November 1996 call options at a price of up to 2c per option. He should acquire such options up to the amount standing to the credit of the cash management trust account. The letter also asked if it was possible for the securities to stand in the name of the broker's nominee company. 45 The Options Client Agreement Form was set out in the name of "Mark Booth" and signed "M. Booth". The address given was the mailbox, Suite 146, 56 Military Road, Mosman, 2088. 46 The Application for Individual Account was also made out in the name of "Mark Booth" at the same address, with a business telephone number of 955 7070 and a private telephone number of 9230 0200, the latter was asterisked with the annotation "Currently staying in hotel. Do not leave private messages at this no." 47 The Sponsorship Agreement was also issued in the same name and with the same address, with a signature of "M. Booth" which purported to be witnessed by "Alexi Voltraint", who purported to give an address of "52 Railway Road, Petersham". 48 The Record of Interview re Opening New Account was filled out on the basis of the information supplied in the aforesaid documentation. 49 Thereafter the following purchases were made: · 2,500 contracts at 1.5c on 18 September 1996; · 910 contracts at 1.5c on 19 September 1996; and · 290 contracts at 2c on 19 September 1996 (recorded as 20 September 1996). 50 On 20 September 1996 "Booth" advised Mr Staehli by telephone that the purchase had been completed. "Booth" advised him of a new number 9902 8224. This number was a voicemail account opened on 19 September in the name of "Mark Booth". The account for the voicemail service was also paid in cash. 51 The withdrawals and the bank cheques were, respectively, the subject of counts 2 and 3. However, the flow of funds into the account from which the options were purchased, was also of central significance to the insider trading count. 52 There was no issue that the Appellant withdrew the funds in cash from his own account. The Crown case on count 2, i.e. the FTRA count with respect to six withdrawals, was that the Appellant had become aware of the FTRA obligations when withdrawing the three amounts of $20,000, $10,000 and $10,000 from, respectively, the CBA branches at Pitt Street/Martin Place, Chatswood and Circular Quay. These three withdrawals, together with the subsequent four withdrawals for $9,000, one of $9,900 and one of $6,000 - being withdrawals from the Neutral Bay, Crows Nest, Liverpool/Castlereagh Street, Town Hall and Wynyard branches, all on 9 September - were also relied upon as covert conduct in support of the insider trading charge, being particularly relevant to the element of possession of information and the mental element. Indeed, as noted above, Mr Hannes had transferred funds from an account he controlled at Ord Minnett to his CBA account. The Crown called evidence that by a single transaction, moneys could have been transferred from one Ord Minnett account to another. 53 The cash was withdrawn in $100 and $50 notes. Four of the nine bank cheques, being all the cheques about which such evidence was available, were purchased with a mixture of $100 and $50 notes. 54 Each of the cheques was payable to "Perpetual Trustee Co Ltd - Ord Minnett Cash Management Trust". Those cases which recorded the details of the customer were: CBA, George Street; ANZ Bank, Camperdown; NAB, Leichhardt; Westpac, Annandale; Westpac, Roseville; NAB, Roseville. In each such case the customer was identified as "M. Booth" and the address was given was "Suite 140, 656 Military Road, Mosman 2088". Two cheques from the Commonwealth branches at Camperdown and Leichhardt did not record any such particulars. 55 A number of bank tellers gave evidence about the appearance of the person who acquired the bank cheques. Some gave evidence identifying the customer from a photoboard of photographs of persons who attended the relevant branch on the day. Such evidence was also given by persons who attended to the opening of the mailbox and the voicemail account. This is the subject of a separate ground of appeal. There was handwriting evidence about the various application forms. This is also the subject of a separate ground of appeal. 56 It was, in my opinion, open to the jury to conclude that Mr Hannes had acquired all of the bank cheques and to draw that conclusion based solely on his own admissions during the Record of Interview. 57 When he was asked during that interview what he had done with the cash withdrawn from his account, he referred to the "general statement" he had earlier made. (AB3780). In that statement (commencing at AB3743) he had said that a syndicate partner: "… asked for a hundred thousand and he asked if I could get it in cash." (AB3747) 58 In a subsequent conversation with that person, Mr Hannes said: "… he told me that he needed cheques to put in an Ord Minnett cash management account." (AB3749) 59 Mr Hannes also said in his record of interview: "Well he asked me to get cash and then he asked me to get cheques for the cash management trust." (AB3757) 60 He also said: This individual … he had told me that he had - that there was a mail box, there was a mail box, we had a mail box and we were going to have a bank account which was going to be this Ord Minnett bank account. So ultimately I withdrew all this cash and made it out in cheques, as he requested, to this Ord Minnett bank cash management account or whatever it was. So that's the - reference to all this money being withdrawn and deposited. That's how I contributed my money." 61 The two references to withdrawing "all this cash and made it out in cheques" and to "all this money being withdrawn and deposited" could be accepted by the jury as an admission of two facts: · Mr Hannes obtained all the bank cheques. · He used the name "M. Booth" to do so. 62 He was asked to identify an ANZ Bank bank cheque application form. Mr Hannes said: "I may well have when I got the bank cheques for Ord Minnett, right, put it in the name of my sister." (AB3781) 63 His sister's name was Mignon Booth. Notwithstanding the use of the word "may", this statement could also be accepted by the jury, in a context where he had already referred to a request to obtain cheques up to $100,000, as an admission of two facts: · Mr Hannes obtained all the bank cheques. ("I got the bank cheques for Ord Minnett). · He used the name "M. Booth" to do so. 64 Immediately after this answer, Mr Hannes continued without a further substantive question: "A And not only that, I think they gave me a copy of this and I gave it to Mr X - I gave him the cheques. Q That's the paperwork. A I gave him the cheques and I gave him all the junk. He knew that I was investing in the name of my sister." These answers reinforce the admission of each of the facts outlined above. 65 Hannes was then shown the ANZ Camperdown branch cheque for $9,000 and he said: "Well you ask me to identify a specific cheque. I mean, what I said in my general statement - I don't recall it, but what I did say is I tracked - I was asked to get cash originally. He then told me he wanted cheques, he needed cheques made out to Perpetual Trustee, Ord Minnett Cash Management Trust and I obtained those cheques. I withdrew that cash and I obtained those cheques and then I gave that to him." (AB3782) 66 In a context where a total amount of $100,000 had been mentioned as required in bank cheques, each of the two references in that passage to "I obtained those cheques" is an admission with respect to all nine cheques. 67 When his attention was drawn to the address "656 Military Road", Mr Hannes said that that was the address given to him by "Mr X" (AB3783 and AB3785). That address only appeared in the application forms in combination with the name "M. Booth". 68 In the course of a question about the NAB Leichhardt branch bank cheque, which like eight of the nine cheques was in the amount of $9,000 (one was for $9,900), Mr Hannes said: "… I'm not denying that I went and got cheques, right, in these amounts and, as I say, it was to be in the name of my sister, Mignon Booth, I'm not denying that." (AB3785) 69 Again this reference to "got cheques … in these amounts", in the context, is an admission that he obtained all the bank cheques. This is reinforced by the fact that he admitted in a number of instances that the "M. Booth" name "may well be" his own handwriting. 70 Relevant to the two cases in which no name was set out in the application form; the following question and answer appears at A3286: "Q Did you write those words or those letters that comprise the word "M. Booth" on these application forms I've shown you? A If they asked me to - in some circumstances I might and some they - I might not have. Because I didn't - I recall I didn't write out - I don't recall filling out all these slips …" 71 The issue arose again later in the Record of Interview: "Q Why did you get a series of bank cheques to the value of $9,000 each from different banks. A What happened was first he initially asked for cash … He then changed his mind and said he wanted bank cheques right? So then I made out all these bank cheques - got all these bank cheques." (AB3796) 72 To similar effect Mr Hannes said: "And then I gave all those things to my partner my - Mr X, when I gave him - well we both needed the address, he knew that I was doing it in my sister's name; and I gave all those cheques and all the pieces of paper … to this guy." (AB3804-3805) 73 In the context of a request for $100,000 - to which Mr Hannes subsequently referred as a request for "roughly a hundred thousand" (AB3800) - each reference to "all these bank cheques" and "all those bank cheques" is a further admission by Mr Hannes that he obtained all nine bank cheques. 74 This conclusion is further reinforced by the following: "Q … the residual withdrawals add up to approximately either 81 or 91 thousand dollars. By coincidence, its a similar amount that was lodged at Ord Minnett cash management - A That's not a coincidence. That is the money." (AB3797) 75 What was lodged at Ord Minnett was nine bank cheques. The admission that his own cash withdrawals were "the money" so lodged is, in the context, an admission that he obtained all of the bank cheques. 76 It was open to the jury to conclude that there were actual admissions by Mr Hannes that he obtained a number of bank cheques in the name of "M. Booth" and that the admissions constituted an admission that he obtained all nine of the bank cheques that were deposited in the Ord Minnett account. That account had also been opened in the name of "M. Booth" and all transactions on it were conducted by a male person who used that name. 77 The conduct of the person (or, possibly, on the Appellant's contention in this appeal) the persons, who acquired the bank cheques to finance the acquisition of the bank cheques - small denominations in a number of different bank branches in different parts of the city - was capable of being accepted by the jury as constituting an attempt to ensure that it would be difficult to connect the transaction by documents and also to ensure that no bank officer had any reason to remember the transaction or the person conducting it. Furthermore, insofar as an obligation to report transactions under the FTRA scheme could provide regulatory authorities with information, there would, a jury could conclude, be no such trail. 78 The means by which Mr Hannes withdrew the cash and the means by which Mr Hannes (and/or another person) acquired the bank cheques, constituted a significant part of the Crown's circumstantial case on the insider trading charge. An attempt to make the flow of funds difficult to trace supports the Crown case on a number of elements of the offence, especially the possess information element and the mental element. To give only one example, an attempt at concealment appears to be the only reasonable explanation why one person - "M. Booth" - should, on the one day, attend at the Roseville branches of two banks, NAB and Westpac, to acquire for cash two bank cheques in the same amount payable to the same person. 79 At 9.00am on 2 October 1996 an announcement was made by the Stock Exchange that a take-over bid had been made for TNT by a Dutch company and the shares rose to $2.25. 80 By letter of 3 October 1996, signed by "M. Booth", Mr Staehli was instructed to hold the TNT options until 4 November 1996 and thereafter to begin to sell them for the best price obtainable. 81 The sale resulted in a sum of $2,039,710, which amount was transferred to Booth's cash management account between 25 and 28 November 1996. 82 At no time did Mr Staehli meet "Booth" face to face. 83 In a letter to Mr Staehli of 3 October 1996, "Booth" referred to a message about investigations into the trade in TNT options. The letter said "I assume this is standard practice here and if my permission is required you have it. Please contact me if more information is required." 84 By letter of 4 October 1996, also signed "M. Booth", the author expressed concern about the continued publicity and the suspicion about insider trading in the options. This letter said: "This is extremely disturbing, as even airing of such allegations would be professionally damaging to me." The author went on to express an intention to cooperate with the authorities and attached a statement of recollection of the events. That statement explained why he invested in those options and stated, in view of the newspaper articles about insider trading, that: "I had no knowledge whatsoever of a take-over bid of any sort for TNT was in prospect." 85 In mid October 1996 a further undated letter signed "M. Booth" was received by Mr Staehli. In that letter the author stated that he wished the investors from whom he acquired the November 1996 $2 call options "not to suffer loss". Accordingly, he instructed Ord Minnett and the trustee of the cash management fund to pay all of the monies in his cash management account as recommended by the Australian Securities Commission. 86 The Crown accepted an obligation to establish that Mr Hannes was "Booth" beyond reasonable doubt. Her Honour, as I will set out below, directed the jury in these terms on a number of occasions. This was, from one perspective, a necessary part of the Crown case. A number of acts constituting the actus reus of the offences - the instructions to acquire the securities and the applications for bank cheques - were carried out by a person identifying himself as "Mark Booth" or "M. Booth". 87 In certain respects the Crown referred to the identity of Mr Hannes as "Booth" as if it were an intermediate fact, which was an indispensable link in a chain of reasoning towards an inference of guilt in the sense described by Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 579. That may be appropriate with respect to some of the acts performed by "Booth". In critical respects, as I have noted, the proposition that acts were done by Mr Hannes in the name of "Booth" was not an intermediate fact. In those respects the acts constituted an essential component of the actus reus of the offence. 88 At the trial, and on the appeal, the Appellant abjured any suggestion that there was a person called "Mark Booth". The Appellant did state in his Record of Interview, which was before the jury, that he may have invoked the name "Mignon Booth", his sister's married name, for whose benefit he intended the investment to be made. Documents were signed, or purported to be issued, in the name of "M. Booth". Witnesses who had conversations with a person purporting to be "Booth", recalled the use of the name "Mark", which was recorded in contemporary documents. The Appellant's Case 89 The Appellant did not give evidence at the trial. Some explanation was given in the form of a Record of Interview between Mr Hannes and two officers of respectively, the Australian Securities Commission and of the Australian Federal Police. Further material was contained in the evidence of Mr Moss, the Managing Director of Macquarie Bank Limited, who recounted a conversation with the Appellant. 90 The key points that emerged were as follows: · The Appellant had entered into an investment syndicate with another person. Each would put in funds and the monies would be invested in securities (AB276-277; AB3743-3744). · The other member of the syndicate was described as an English friend, whom the Appellant would not name (AB276-277; AB3743). He was "quite sophisticated and quite wealthy" (AB3771). · The arrangements for transactions on the part of the investment syndicate was that the friend would make the investments after consultation with the Appellant (AB3750). · In breach of the obligation to consult, the syndicate partner had made an investment in TNT without the Appellant's knowledge (AB277; AB3750). · The friend had asked him to obtain about $100,000 in cash and subsequently had asked him to obtain bank cheques for the Ord Minnett Cash Management Trust. (AB3747; AB3749; AB3757). · The friend had no special knowledge with respect to TNT (AB277; AB3750). · When the Appellant indicated that he was upset that he had not been consulted beforehand about the investment, the syndicate partner indicated that he would reverse the transaction (AB3750). · Subsequently when allegations of insider trading became public the Appellant and his syndicate partner agreed that all the monies would be returned (AB3751). · The Appellant indicated that he had "agreed with him that I would not reveal his identity unless it was necessary and I may not adhere to that, but at the moment that's what I'm going to do" (AB3752). 91 With respect to the circumstances in which he came to withdraw a number of small amounts from his own account, the Appellant said in his Record of Interview: "I went to see the - my bank, which is the Commonwealth Bank in Roseville and filled out a withdrawal slip for $100,000 cash … I took it to the lady at the counter and asked for a cash withdrawal. She laughed and she said they don't have - they didn't even have $10,000 on the premises. I learnt something about banking. She said there is no bank in Sydney that would have that - that would give me - that would give me a cash withdrawal of that amount. So I said, 'What should I do?'" (AB3748) 92 The Appellant then indicated: "I think I rang the Wynyard branch and the woman there said, yes, they could get that amount of cash if I gave them something like two weeks notice. And so I asked her what she recommended I do and she said 'I suggest you'll have to go to a whole series of branches to get that amount of money out in cash' and so that's basically what I've proceeded to do." (AB3749) 93 The Crown led evidence in response to this case of the Appellant with respect to the availability of cash. It called the branch manager and three officers of the Roseville branch of the Commonwealth Bank, a supervisor and two tellers. They gave evidence that they did not recall receiving a request on 5 or 6 September 1996 from a customer seeking to withdraw $100,000. The branch manager indicated that any such request would have been directed to him or to the supervisor (who in turn gave evidence that she had no recollection of such a request). The branch manager indicated that if such a request had been made other branches of the bank would have been contacted and arrangements made for the customer to go there to collect cash. One of the bank tellers said that if she had received a request for $100,000 in cash she would have forwarded it to either the manager or the supervisor but would not have advised the customer to go to Wynyard. 94 The Crown called the manager of the Commonwealth Bank, Wynyard branch, together with the teller supervisor from that branch, the Operations Supervisor and, two Customer Service Operators. The manager indicated that in September 1996 incoming phone calls would go to the area of the office staffed by the Operations Supervisor and the two Customer Service Operators. The manager indicated that he did not recall receiving a request for $100,000 in cash in September 1996. If such a request had been made it would take two days to get the amount depending on what day of the week it was. He indicated that there were no restrictions on the drawing of that amount of cash, but such request would be referred to a supervisor and to him. He indicated that he would not recommend the customer go to several branches to obtain similar amounts. The teller supervisor at Wynyard said she did not receive a phone call with a request for $100,000 in cash. She indicated that she would not suggest to someone to go to other branches and take out smaller amounts. The operations officer and the two customer service operators who occupied the area of the office to which, the manager indicated, an incoming phone call would be diverted, said that they did not recall, and in one case denied, receiving a request from any person for $100,000 in cash. 95 No explanation was offered by Mr Hannes for obtaining a number of bank cheques from different bank branches. The Record of Interview records: "Q Why did you not just make out one bank cheque? A I honestly don't know, I could not - I don't know why I did that. Maybe he said - maybe he said get bank cheques, $9,000, I don't know. Maybe I did if off my own bat, I really - I mean, I'm not sure …" (AB3796) Grounds of Appeal 96 The amended grounds of appeal consist of eight numbered grounds. However, almost every ground has numerous paragraphs and sub-paragraphs many of which contain alternative formulations, and alternatives within alternatives, in the respective paragraphs and sub-paragraphs. Without attempting a precise calculation, there are probably in excess of 100 identifiably different grounds of appeal each said to constitute either an error of law or a miscarriage of justice. 97 The primary thrust of the grounds of appeal is directed to her Honour's summing-up, to which I will refer below. There are, however, a number of specific additional matters the subject of appeal. 98 The Appellant asserts that there was a risk of a non-consensual verdict with respect to the insider trading charge. This, it was said, arose when the jury indicated on the eighth day of its deliberations that it had been unable to reach a unanimous verdict on that count and the trial judge then gave a direction. After a further day and a half of deliberation application was made on the Appellant's behalf to discharge the jury but that was refused. 99 The Appellant appeals from the decision of the trial judge to reject the tender of certain written impressions, detected by mechanical process, on the document alleged by the Crown to be the Appellant's notebook, comprising part of MFI 95. 100 The Appellant also appeals from her Honour's rejection of a draft report of a stockbroker at Macquarie Equities Limited forwarded to a member of the Macquarie Corporate Finance Project Tennis Team. 101 The Appellant also challenges the trial judge's decision to admit into evidence three items of evidence: handwriting opinion evidence; photo boards and identification evidence particularly by two witnesses; and evidence of certain conversations held in the absence of the Appellant. 102 The Appellant also relied on two grounds - Grounds 7 and 8 - which, in large measure, depended on matters also relied upon as defects in the summing-up. Ground 8 asserts that the trial judge permitted the Crown to present a version of its case which was not presented in the indictment and the particulars as provided. Ground 7 asserts that the conviction was unreasonable or cannot be supported having regard to the evidence, because it was not open to the jury to be satisfied of the Appellant's guilt beyond reasonable doubt and a reasonable jury must have had a reasonable doubt about the Appellant's guilt. This is the ground which used to be referred to as the 'unsafe and unsatisfactory ground'. It is of particular significance on the issue of whether or not the Court should direct a verdict of acquittal or order a new trial. 103 It is not necessary to set out all the permutations of the separate grounds of appeal, some of them interconnected and others cumulative, directed at alleged defects in the summing-up. The principal matters are the following: (i) The giving of a Weissensteiner direction (Ground 4.5). (ii) The direction given by her Honour that it was "irrelevant" if "another person was involved" (Ground 4.1). (iii) Alleged defects in the directions on the "possess information" element of the insider trading count (Ground 2.1). (iv) Alleged defects in the directions on the "not generally available" element of the insider trading count (Count 2.2). (v) Alleged defects in the directions on the 'materiality' element of the insider trading (Count 2.3). (vi) Alleged defects in the directions on the two FTRA counts (Ground 3). (vii) The direction concerning expert evidence (Ground 4.3). (viii) The direction concerning identification evidence, both in terms of the general direction as to its unreliability and her Honour's response to a question from the jury on this evidence (Grounds 2.2 and 2.4) (ix) Failure to adequately direct the jury with respect to the control documents used for purposes of the handwriting opinion evidence (Ground 6.3). 104 The Appellant also relied on certain general grounds of appeal based, in large measure, on the cumulative effect of specific matters referred to above: (i) Inadequate directions concerning the elements of the offences (Ground 1.1(a) and Grounds 2.1.2, 2.2.2 and 2.4(a)). (ii) Inadequate explanation of how the law applied to the facts (Ground 1.1(b)). (iii) Inadequate directions as to the circumstantial nature of the Crown case, failure to identify the inferences for which the Crown contended and failure to relate those inferences to the elements of the offences (Ground 1.1(c)). (iv) Absence of a concise, accurate and understandable analysis of and summary of the evidence and, specifically, of the arguments put for the Appellant (Ground 1.1(d)). (v) Lack of balance and a failure to fairly and adequately put the defence case (Ground 1.2). 105 With respect to the lastmentioned ground, namely, the alleged lack of balance and failure to fairly put the defence case, in addition to a general assertion of that character, this is said to be a defect with respect to a number of matters about which specific complaint is made: "possess information" (Ground 2.1.2(d)); "not generally available" (Ground 2.2.2(d)); 'materiality' - particularly the expert evidence (Ground 2.3.2); and the FTRA counts (Ground 3.3(b)). 106 It has long been established that it is not appropriate to subject a summing-up to an excessively fine analysis. In particular, it is not appropriate to do so without reference to the context of the trial, including the detailed submissions that have been made by the Crown and the representative of the accused immediately before the summing-up. As will be seen, some of the grounds of appeal and the detailed written submissions trespass on these principles. 107 As Lord Alverstone CJ said in Stoddart's case (1909) 2 CrAppR 217 at 246 said: "Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice." 108 This passage was referred to with approval by Street CJ in R v Sorlie (1925) 25 SR (NSW) 532 at 539 where his Honour said: "The practice of subjecting a summing up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged. Such a practice does not in my opinion assist in the proper administration of justice, and this Court was not called into existence to wrestle with exercises in mental ingenuity of that kind. It exists for the purpose of rectifying injustice where there has been a miscarriage of justice, and it is important to bear in mind that the Legislature has expressly provided that, notwithstanding that it may be of opinion that the points raised on appeal might be decided in the appellant's favour, it may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." See also R v Casey (1926) 26 SR (NSW) 189 at 193. 109 The observations of Windeyer J in Jones v Dunkel (1958-1959) 101 CLR 298 at 314 are particularly apt: "It has often been said that to examine a summing-up, sentence by sentence, in search for a fault, is not the right way to see whether the judge put the case to the jury fairly and adequately. So much depends upon what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much, too, depends upon the judge's view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent to redress the balance. On top of all this, the summing-up has to be given promptly at the conclusion of the trial, without the opportunity for careful composition which a reserved judgment may get." 110 A number of authorities are collected in a joint judgment of Stable and W Campbell JJ in the Queensland Court of Criminal Appeal in R v Ives [1973] QdR 128 at 133-135. Furthermore, the principles are restated in the joint judgment of the Western Australian Court of Criminal Appeal in R v Hong Jus Ten and Eng Chin Ei an unreported judgment of 6 November 1973 (the relevant extract of which is set out in full in Connell v The Queen (No 6) (1992) 12 WAR 133 at 252-253) where their Honours said: "… the touchstone for the judgment of a Court of Criminal Appeal must reside in the answer to the question whether or not there has been a miscarriage of justice, and this question obviously must be answered by considering what was said, or, as complained of here, what was not said, in the context of the particular facts of the particular case under review. The question cannot be answered by a 'minute and textual criticism' of the summing up or without regard to the addresses made by each counsel to the jury which preceded it. … The cases reveal a uniform approach. In the present case the judge's summing-up followed full, and if we may say so, competent addresses by each counsel in the course of which all the evidence thought to be relevant on each side was canvassed. In this context having regard to the fact that the trial lasted for 13 days it would seem to us to be quite unreal to submit the summing up to a minute examination for the purpose of showing that certain evidence was not adverted to, or that the significance of certain evidence was not, or the lack of it was not, drawn to the jury's attention. As we have already said, the end question as it arises under this ground was whether there has been a miscarriage of justice." 111 Although these authorities indicate the general approach, nevertheless the summing-up, in its context, must give a fair and balanced set of directions to the jury. Specifically, the jury must be fairly directed to the matters raised in defence. As Gibbs CJ said in Cleland v The Queen (1982) 151 CLR 1 at 10: "It is clear in a principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence." 112 Furthermore, a six judge joint judgment of the High Court said in Domican v The Queen (1991-1992) 173 CLR 555 at 560-561: "In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (NSW), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarise 'the evidence given in a trial' if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine a case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way." 113 More recently, a four judge joint judgment of the High Court said in RPS v The Queen (2000) 74 ALJR 449 at [41]-[42]: "[41] … The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. [42] But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel." 114 At the time of the trial s405AA of the Crimes Act 1900 provided: "405AA(1) A Judge of the Supreme Court or District Court need not summarise, at the end of a criminal trial before a jury, the evidence given in the trial if the Judge is of the opinion that, in all the circumstances of the trial, a summary is not necessary." This section has now been re-enacted with slightly different wording as s99(1) of the Criminal Procedure Act 1986. 115 Before her Honour, the parties agreed that this was an appropriate case in which the whole of the evidence did not need to be summarised. Nevertheless, her Honour did refer to the evidence at different stages of her summing-up. First, when she outlined the particular elements of the offence, she referred to some of the evidence. Secondly, she made reference to some of the evidence in the context of summarising the Crown case and submissions. Thirdly, she made reference to the evidence relied upon by the Appellant in the course of summarising the submissions of Mr Robberds, who appeared for the Appellant at the trial. 116 The requirements of a summing-up in this respect were stated by this Court, referring to a long line of earlier authority, in R v Zorad (1990) 19 NSWLR 91 at 105: "A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence. … This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witnesses before turning to the next witness and so on. The idea of a summing-up is to present to the jury the issues of fact which they have to determine." 117 This approach continues to apply after the adoption of s405AA(1). As Hunt CJ at CL said in R v Piazza (1997) 94 ACrimR 459 at 459-460: "The section was inserted in the Crimes Act late in 1990, by Act 74 of that year, following repeated criticisms by this Court of trial judges who apparently believe that they were obliged to read out to the jury the evidence which had been given chronologically, starting with the first witness and going through the evidence in chief, cross-examination and then the re-examination of each witness before turning to the next witness and so on, and who also apparently believe that by doing so they had presented to the jury the issues of fact which they had to determine. Subsection (1) of s405AA relieve trial judges of any such perceived obligation to summarise all of the evidence. In truth, there never was such an obligation. The obligation has always been, and remains, that to which I have already referred, to present to the jury the issues of fact which they have to determine, and to do so with such reference to the facts of the case as is necessary to assist them in that task." The Weissensteiner Direction 118 Her Honour gave the jury directions as to the use to which they could put the fact that the Appellant did not give evidence. 119 Her Honour commenced this part of her directions by referring to the fact that the record of interview with the Appellant was in evidence and, although it had not been tested by cross-examination and was not sworn evidence, it was evidence which they were obliged to take into account. 120 Before she gave the Weissensteiner direction, her Honour directed the jury expressly that there may be reasons unknown to them why the accused does remain silent, even if he would otherwise be in a position to contradict or explain the evidence (AB2221). At the commencement and at the conclusion of the direction, her Honour emphasised (see AB2222 and AB2224) that an accused person is presumed to be innocent; that the burden is always on the Crown to prove the charges beyond reasonable doubt; that an accused is entitled to remain silent and that the jury cannot draw an inference of guilt from the accused's silence. 121 Her Honour's direction referred to the fact that the Crown had presented a body of circumstantial evidence, which she had earlier identified. Her Honour stated that there were only three respects in which the accused's silence could be taken into account, being three inferences which the Crown asked the jury to draw: first, that there was no syndicate partner, secondly, that Mr Hannes was "M. Booth" and thirdly, that Mr Hannes knew of the prospective take-over. There is a substantial overlap between the first and second of these matters. It was the second, i.e. that "Hannes is Booth", that the Crown expressly accepted an obligation to establish beyond reasonable doubt. 122 With respect to these three matters, her Honour set out in summary form the circumstantial evidence said by the Crown to entitle the jury to draw each inference and then said at AB2223-2224: "The prosecution says that the evidence is in itself sufficient to draw an inference of guilt because there is no other rational explanation consistent with innocence, it demonstrates that the accused has personal knowledge of the events in question and suggests that only the accused and nobody else can provide an innocent explanation. If you were to accept what I have just said to you you may take the accused's silence into account, for the sole purpose of drawing inferences otherwise available on the prosecution case, more safely. The operative words Members of the Jury are those last words 'more safely'. I repeat, if you accept what I have just told you, you may take the accused's silence into account for the sole purpose of drawing inferences. The critical thing about that is it is the sole purpose of drawing inferences, is - you cannot and I remind you you cannot draw any inference of guilt, because the accused has remained silent. I repeat that the accused is presumed innocent and is entitled to remain silent. The burden of proving the charges beyond reasonable doubt remains at all time with the prosecution. As I said, you could only take into account the accused's silence for the sole purpose of drawing inferences which the Crown would - the Crown says are otherwise available on the prosecution case, more safely, but I re-emphasise to you Members of the Jury, that you cannot draw any inference of guilt because of his remaining silent." 123 Her Honour had in mind the provisions of s20(2) of the Evidence Act 1995 which provides: "20(2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defender was, or believed that he or she was, guilty of the offence concerned." 124 Her Honour also had in mind and, indeed, was bound by, the authority of the High Court in Weissensteiner v The Queen (1993) 178 CLR 217, which authorised a direction of this character. However, subsequent to her Honour's direction in this case, the High Court handed down judgment in RPS v The Queen supra which restricts the circumstances in which a direction of this character will be appropriate. 125 There are difficulties in reconciling, in all respects, the reasoning and decisions in Weissensteiner and RPS. The High Court has heard argument in two cases which raise these difficulties. Nevertheless, at this stage, this Court must proceed on the basis that it is bound by both Weissensteiner and RPS. 126 The majority joint judgment in RPS acknowledges that there are circumstances in which a direction of this character is appropriate in a criminal trial, albeit the circumstances are to be more narrowly confined than may have been the practice in this State prior to RPS. 127 In a joint judgment, Gaudron ACJ, Gummow, Kirby and Hayne JJ said at [27]: "… it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion that the prosecution seeks. As was said in Weissensteiner v The Queen [(1993) 178 CLR 217 at 227-228 per Mason CJ, Deane and Dawson JJ]: '[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' (Italics added.)" 128 Their Honours also distinguished Weissensteiner in the following way at [35]: "The present case (and cases of a similar kind) must be contrasted with that considered by this Court in Weissensteiner . There the prosecution case was that the accused's guilt was to be inferred from circumstances, particularly the unexplained disappearance of those whom it was alleged he had murdered, and his possession of the boat and equipment which they owned and from which they had disappeared whilst on a voyage with the accused. The majority of the Court held that the trial judge in that case had made no error by directing the jury that they could more safely draw the inferences which the prosecution alleged should be drawn 'when the accused elects not to give evidence of relevant facts which could be easily perceived to be in his knowledge' [178 CLR 224] but as Mason CJ, Deane and Dawson JJ pointed out in Weissensteiner [at 228]: 'Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiar within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution's case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and the jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.' And as the other members of the majority in Weissensteiner [at 237-238] (Brennan and Toohey JJ) said: 'The facts from which an inference of guilt may be drawn are correctly identified [in the charge to the jury] as facts which the prosecution is able to prove. The use to which the appellant's failure to give evidence may be put is correctly restricted to a strengthening of an inference of guilt from the facts proved. And the jury is told not to use the appellant's failure to give evidence unless relevant facts 'can be easily perceived to be in his knowledge'. This additional requirement which follows a decision of the Court of Criminal Appeal of Queensland in R v Winfield , ensures that the drawing of an inference of guilt will not be assisted by an accused's failure to give evidence unless it is reasonable to expect some denial, explanation or answer by the accused to the prima facie case made against him.' " 129 In R v Fowler [2000] NSWCCA 142, Wood CJ at CL considered the implications of RPS upon the practice in this State of making a Weissensteiner direction. His Honour said: [159] "It remains possibly open to argument that a Weissensteiner direction should only ever be contemplated in a 'smoking gun' case, or to a circumstantial case dependent on inference from proved facts, the innocent explanation for which might only reasonably lie in the mouth of the appellant … … [163] … The occasion for such a [ Weissensteiner ] direction in my view must hereafter be confined to an exceptional case of the kind there involved, where the line of reasoning in question is compelling. [164] The present case was not to my assessment of that kind, particularly having regard to the circumstances that answers had been provided by the appellant in relation to at least some of the matters in his unsworn statement, that as to others his evidence could not have risen above a denial, and that tactical reasons were apparent to all as to why the appellant may have wished not to give evidence that were unassociated with fear of incriminating himself for the offence of murder for which he was on trial." 130 The decision in Weissensteiner was applied by this Court in R v OGD (1997) 45 NSWLR 744. In RPS at [30] the High Court doubted that OGD stood for a "general proposition" that a direction should be given "in cases like the present" - which encompassed sexual assault cases in which the accused does not respond to the complainant's evidence. The joint judgment in RPS expressly rejected any such "general proposition" referring, with approval, to Gleeson CJ's emphasis in OGD at 752, on the need for caution in giving such directions. 131 The passage in OGD to which the High Court referred with approval in RPS concerned the existence of multiple charges, a circumstance on which the Appellant relies in this case. In OGD there were ten charges of homosexual intercourse with a specific male person under the age of 18 years and one charge of sexual intercourse without consent, also with respect to the specified person. In his reasons for decision, Gleeson CJ emphasised (at 747E) the significant difference between the first ten charges and the eleventh charge, turning on the absence of consent for the last charge. His Honour said at 748A-B: "If one were to search for a possible explanation of the appellant's failure to give evidence there is, to my mind, one distinct possibility. It is that the appellant, if he had sought to defend himself against the final charge by asserting that the complainant consented to sexual relations, or that he did not know the complainant was not consenting, would have been forced to make admissions in relation to the other charges." 132 His Honour concluded that the appellant's dilemma in this regard emphasised the need for caution in making directions of this character (752F-G). The direction actually given did not distinguish between the different charges and was "dangerous and unfair" (753D). 133 In terms of the three specific matters to which the direction given in this case referred, there is no element distinguishing the insider trading charge from the FTRA charges, in the patent way that occurred with the issue of consent in OGD. Two of the three matters the subject of the direction do not arise in the FTRA charges - "no syndicate partner" (expressed in that form) and knowledge of the takeover. However, the use of the name "M. Booth" with respect to the bank cheques, overlaps with the use of that name in relation to the Ord Minnett accounts. There does not appear to be any material difference between these two situations. 134 The Appellant merely contended that, like OGD, there were multiple counts. However, no submission was made distinguishing any one of the three counts from the others. One possibility arises from the fact that count 2, the FTRA withdrawals charge, does not turn on the proposition that "Hannes was Booth". There is, for example, a theoretical possibility that Mr Hannes could not give evidence to identify "Booth", or otherwise establish that he did not know what shares his syndicate partner intended to invest in, without running the risk of admitting that he had, at least, collaborated in an evasion of the FTRA. However, in all the circumstances such a differentiation appears artificial in the extreme. 135 Plainly, the charges had different elements. However, no attempt was made to proffer any reasonable explanation for refusing to give evidence on one count rather than the others. In my opinion, unlike OGD, there was no relevant distinction between the charges of a character which rendered the Weissensteiner direction, if otherwise appropriate, unfair. 136 The primary submission of the Appellant in this regard, was that the circumstances of this case were not such as to constitute an exceptional case in which a direction of this character is permissible. The Crown submitted to the contrary. It is necessary to look separately at each of the three matters with respect to which her Honour directed, and confined, the jury in this regard. 137 The first matter referred to was that the jury could more safely draw the inference that "there is no syndicate partner". There was no submission that this negative proposition was not material and distinct from the inference that "Hannes was Booth". It is not entirely clear on what factual basis the Crown relied to ground the inference expressed in this negative form. One such consideration could have been the failure of Mr Hannes to identify the syndicate partner in the record of interview. Perhaps the Crown also relied on the evidence that "Booth" was an entirely fictitious character: there was no person of that name at contact points he nominated such as the Intercontinental Hotel; when asked for passport identification, he had forgotten to bring it; when asked for a tax file number, he said he was just applying for one. 138 In the context of the circumstantial case advanced by the Crown, the existence of a syndicate partner was a fact on the basis of which the jury could accept the existence of a hypothesis consistent with innocence, i.e. that the unidentified syndicate partner may have purchased the options. 139 The circumstance that a jury has in evidence the accused's version of the facts, often by an unsworn record of interview, may constitute a reason for refusing to draw the conclusion that an accused would be expected to give evidence. Wood CJ at CL took such a proposition into account in this way in Fowler supra at [164]. 140 However, in the present case the earlier revelations in the record of interview and the evidence of Mr Moss, had a particular characteristic. This was the refusal on the part of the Appellant to identify the syndicate partner or identify any fact, matter or circumstance which might suggest his existence. This refusal was maintained throughout the trial in circumstances in which the Appellant was at risk, a risk which eventuated, of imprisonment for a substantial period. 141 The statement he made in the record of interview was to the effect that he had agreed in late 1996 with a person, whom he would not name, to form an investment syndicate to which each would subscribe half the money. According to the Appellant, the arrangement was that the other party would make the investments but would consult the Appellant in advance. He said that after the options had been bought in TNT he had been informed by his syndicate partner that this had occurred. This caused Mr Hannes to become upset because he had not been consulted beforehand. The syndicate partner agreed to reverse the transaction. 142 In my opinion, the content of the record of interview is not of a character which would put before a jury anything other than the mere fact of the alleged existence of a syndicate partner. It is not evidence of a quality which detracts from an expectation that the accused in this case would give evidence. The identification of the syndicate partner is, in my opinion, of a sufficiently exceptional character to create an expectation that an accused would at least give some evidence to identify him or identify some other objective fact, matter or circumstance from which the existence and role of such a person could be inferred. On the submissions made in this Court, evidence on this matter could come from only two sources, the Appellant and the alleged syndicate partner. In the absence of any evidence from the latter, evidence in support of that proposition could come only from the accused. It was, in my opinion, of a sufficiently exceptional character to justify a direction of the kind which her Honour made. 143 The second inference which her Honour directed the jury they could draw more safely by reason of the failure of Mr Hannes to give evidence, was the proposition that "Hannes is Booth". There was some overlap with the first proposition, in the sense that if there was a syndicate partner, then that laid the foundation for an inference that some or all of the acts conducted in the name of "Booth" were conducted by that syndicate partner. Nevertheless, the inferences were, and are, conceptually distinct. 144 As noted above, with respect to this second inference to which the direction related, the Crown had accepted that it had to establish the proposition beyond reasonable doubt. 145 With respect to the insider trading charge, the accounts in which the options were bought and funded were opened and conducted in the name of "Booth". The first element of the relevant offence - namely that the Appellant had purchased securities - could not be established on the Crown case unless the acts of "Booth" were found to have been performed by the Appellant. With respect to count 3 the same proposition was true of the bank cheques obtained in the name of "Booth". 146 The decision in RPS emphasises that great caution needs to be displayed before giving a Weissensteiner direction. That must be particularly so with respect to an inference as critical to the Crown case as was the inference that "Hannes was Booth". I note that the Appellant did not, in this Court, submit that the direction constituted in some way a 'suggestion' of guilt, contrary to the second limb of s20(2) of the Evidence Act (c/f RPS at [20]). 147 Each of the two majority judgments in Weissensteiner states that there are circumstances in which it is appropriate to use the silence of an accused to support an inference of guilt. The directions given by the trial judge in Weissensteiner were expressly in such terms: "[The prosecution] asks you to infer guilt from a whole collection of circumstance. It asks you to draw inferences from such facts as it is able to prove. Such an inference may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts which it can easily be perceived must be within his knowledge." (224 and 237 emphasis added) and "… [the prosecution] seeks to have you infer guilt from such facts as it is able to prove to your satisfaction. Such an inference may be more safely drawn from the proven facts when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge." (224 and 237 emphasis added) 148 These directions were upheld by the majority (at 230-231 per Mason CJ, Deane and Dawson JJ; 237-238 per Brennan and Toohey JJ). The minority would have restricted the scope of the permissible inference to drawing an inference from unexplained facts more safely, not extending to an inference of guilt from the whole Crown case (at 242-243, 246, 247 per Gaudron and McHugh JJ). This Court is bound by Weissensteiner to accept that a direction can encompass an inference as close to an inference of guilt as was, in this case, the proposition that "Hannes was Booth". 149 In this case the trial judge's direction was not to the effect that there was an inference of guilt. Her Honour, on the application of the Crown, confined the directions to certain specific inferences of fact, even though one of them - the equation of "Hannes was Booth" - was essential in the sense that an element of the insider trading offence could not be made out, on the Crown case, unless the inference were drawn. 150 In her summing-up the trial judge gave directions on the first two, overlapping, but not equivalent, inferences in the one passage as follows (AB2222-2223): "Now the prosecution submits that these inferences may be more safely drawn, because of the following, and this relates to the first two matters which I have referred you to, that is that there is no syndicate partner and that Mr Hannes is Mr Booth. Firstly, the prosecution submits that these inferences may be more safely drawn because no syndicate partner has been identified and only Mr Hannes can identify him. Secondly, there is no such person as Mark Booth. Thirdly the Booth handwriting is that of Mr Hannes and fourthly the Booth indentations are in three of Mr Hannes' notebooks. Four, that the Booth documents are on the Hannes computer. That Alexi Voltraint is fictitious and connected with Hannes via the writing, the diary and the book club evidence. Sixthly, Mr Hannes admits obtaining cheques in the name of M Booth and signing for them, that is a reference to the record of interview, p57 to 68 and also the Crown relies on the bank photo evidence, which is exhibit EE." 151 In the case of the existence or non-existence of a syndicate partner the nature of the explanation that was called for - beginning with the identification of a person - was clear. This is not, however, so with respect to the second inference - that "Hannes was Booth". I find her Honour's directions difficult to follow in this second respect. 152 The sentence commencing "Firstly" with the reference that "only Mr Hannes can identify" the syndicate partner, is an appropriate direction with respect to the inference that "there is no syndicate partner". It is not clear what, if any, of the other matters set out in this passage are intended to relate to this first inference. 153 The balance of this direction gives the appearance of an abbreviated list of facts and circumstances on the basis of which the Crown asserted that the two inferences could be drawn. What the jury required, however, was guidance as to what evidence called for explanation by Mr Hannes, in the absence of which they could draw either inference "more safely". 154 The reference to "only Mr Hannes can identify him" is, in my opinion, sufficient with respect to the first inference. 155 However, with respect to the inference that "Hannes was Booth", her Honour's direction to the jury consisted of a mixture of matters only some of which could be said to have necessarily called for evidence on the part of the accused. 156 In the passage quoted above, the last two matters referred to an admission that Mr Hannes obtained cheques in the name of "Booth" and a reference to the photo evidence in exhibit EE. These are not matters which, on their face, called for any explanation or evidence from the Appellant. 157 It is not clear to me what her Honour intended to convey by the second proposition to which her Honour referred: "there is no such person as Mark Booth". Presumably it is a reference to the body of evidence that no person of that name was found, at or by reference to, any of the places at which he purported to reside or be contactable - the Intercontinental Hotel, the mailbox, the voicemail. This negative evidence called for no explanation by the Appellant who never contended that there was a person called "Mark Booth". 158 With respect to the third matter, namely the proposition that the "Booth" handwriting is that of Mr Hannes, it is difficult to know what evidence Mr Hannes could have given other than a denial. 159 The position may be different, however, with respect what her Honour refers to as the "Booth indentations" in Mr Hannes' notebooks and the existence of "Booth" document on Mr Hannes' computer. These are matters which, to some degree, may have called for an explanation, but whether they were so exceptional as to satisfy the RPS test is another matter. 160 Finally, the propositions that "Alexi Voltraint" is fictitious and connected with Mr Hannes via the writing in the diary and the book club evidence - which relate to the false address given for "Voltraint" - are matters which could have called for some form of explanation, but not necessarily on the RPS test. 161 It is not entirely clear how the jury would have construed her Honour's directions in this respect. It is likely that they were accepted as a list of matters, summarising her Honour's earlier directions on the Crown circumstantial case, on the basis of which the inference could be drawn, being the inference that the Crown said could be drawn more safely by reason of the failure of the accused to give evidence. 162 Encompassed within these propositions are a number of matters with respect to which it could be said that the accused alone could offer an explanation, e.g. the "Booth" indentations in the notebooks found beside his bed and on his desk and the existence of the "Booth" documents on the accused's own computer. However, the trial judge gave no indication to the jury as to which of the matters in this list were of a kind that the accused would be expected to give evidence about. This contrasted with the reference to the first inference - the existence of a syndicate partner - where the proposition her Honour put to the jury was that the inference could be more safely drawn "because no syndicate partner has been identified and only Mr Hannes can identify him". There is no equivalent guidance with respect to the notebooks, the computer or the diary. The other matters referred to could not, in my opinion, have qualified under the RPS test. 163 No attempt was made by the Crown in its written and oral submissions in this case to identify each of the matters about which it was submitted the accused could have given evidence so as to indicate why, in respect of each such matter, the case was so compelling that an explanation by the accused was called for in accordance with the strict test laid down in RPS. The Crown approached this matter on the basis that the relevant inference was of a higher level of generality, namely the equation between "Booth and Hannes". However, with respect to an inference at that level of generality, the only evidence that Mr Hannes could have given was a denial. In my opinion, it is necessary to analyse with care the evidence that the Appellant could have given with respect to the individual facts and matters on the basis of which the Crown submitted the inference could be drawn. In the light of the strict test required by RPS, I do not believe the direction given can be supported. 164 What was required was some specification of the particular evidence which could come only from the accused. The point of a direction of this character is to indicate to the jury a permissible course of reasoning, and, significantly, to stress the impermissible form of reasoning to which a jury may be prone, without direction. In view of RPS, it is not, in my opinion, sufficient to say that a jury may draw an inference more safely without some specification and restriction, by the trial judge, of the particular evidence with respect to which the absence of an explanation is of sufficiently compelling character. 165 This may have been the case in the present situation with respect to the notebooks and the computer and, possibly, the diary. No attempt was made to direct the consideration of the jury in this way. Indeed, the jury was instructed that the failure of the accused to give evidence generally, rather than with respect to specific identified matters, was such as to establish a basis for an inference that "Hannes was Booth". In my opinion this direction was in error. 166 The third inference which was the subject of the Weissensteiner direction was "that Mr Hannes knew of the prospective take-over". This was a matter which went to the element of the offence that the Appellant "possessed" the particularised "information". Her Honour also set out a summary of what she had already indicated to the jury earlier in her summing-up were the facts and matters on which the Crown relied as a basis for the drawing of the inference. In this respect, her Honour restricted herself to the proposition that the relevant inference of fact could be drawn more safely by reason of the failure of the Appellant to give evidence. 167 In my opinion, this particular matter does not satisfy the RPS test of a matter about which the Appellant could be expected to give evidence in a criminal trial. At the particular level of generality at which the proposition was expressed in the directions - that "Mr Hannes knew of the prospective take-over" - it is not readily apparent what evidence Mr Hannes could have given, other than a general denial or some form of explanation as to the limited quality of the information about that general subject matter of which he had become aware at a relevant time. 168 In one sense, the state of a person's knowledge is always peculiarly within that person's knowledge and, accordingly, can be seen to satisfy the requirements for a direction of this character. However, in the present case that is not the only source of information on this matter. The Crown relied on the circumstances: the late night visits by Mr Hannes to the premises of MCF where documentation was accessible. However, there was also actual direct evidence of communications between Mr Hannes and other employees of MCF working on the take-over itself, e.g. with Mr Hancock. 169 There are observations in RPS which suggest that the reasoning involved in the process of drawing inferences in the absence of an explanation, may not be applicable to a case based on direct evidence and not on circumstantial evidence. (See e.g. RPS supra at [23]). It is not necessary to decide whether or not such a differentiation is either required by RPS or should be drawn. It is sufficient for present purposes to conclude that with respect to the question of Mr Hannes' knowledge about the prospective take-over, this was not a matter of a character about which it could be said that evidence "could come only from the accused" (RPS at [27]). 170 Her Honour's error in making a Weissensteiner direction with respect to the inference that "Hannes was Booth" directly affects both count 1, the insider trading charge, and count 3, the FTRA bank cheques charge. However, the finding that "Hannes was Booth" was also directly relevant to count 2, the FTRA withdrawals charge. The conclusion that "Hannes was Booth" would have affected the jury in its consideration of whether Mr Hannes made the withdrawals for the proscribed "dominant purpose" of ensuring that there was no reportable cash transaction. Accordingly, the appeal should be upheld with respect to all three charges on this basis. 171 The centrality of the issue of "Hannes being Booth", and the significance of the "possess information" element for the insider trading charge, make it inappropriate to apply the proviso. Direction re - "Another person involved" 172 The Appellant submitted that her Honour had erred in acceding to the request of the Crown to give the jury a direction concerning the relevance of the proposition that another person was involved in the commission of the offences. Her Honour said: "The direction that I give you Members of the Jury is this, that it is quite irrelevant that another person, on Mr Robberds' scenario turns out to be involved, if it is established that the elements of criminal liability are established against Mr Hannes, even if some other person is involved, criminally or not. So that is the direction that I give you in relation to that matter." (AB2133) 173 Subsequently, her Honour reiterated this direction, again at the request of the Crown: "… I told you that I would remind you of the direction I had given you regarding the involvement of another person and that is this, the Crown does not have to establish that no other person was involved. It is quite irrelevant that another person on Mr Robberds' scenario turns out to be involved. If it is established that the elements of the criminal liability are established against Mr Hannes, even if some other person is involved criminally or not." (AB2270) 174 The Appellant objected to the directions on a number of different bases: · It represented a fundamental shift in the Crown case at a time when the Appellant had no proper opportunity of responding to it. · It related to, or was capable in the minds of a reasonable jury of relating to, the central issue of the case as to whether or not there was another person who committed the acts which constituted the actus reus of the offences. · Her Honour failed to relate this direction to the elements of the offences, the evidence and issues at the trial or to the directions that were made with respect to other matters. 175 The determination of questions of fact is a matter for the jury. It is not appropriate for a trial judge to indicate that a jury ought not have regard to evidence for any such purpose. As Moffitt AJA said in R v Guerin [1967] 1 NSWR 255 at 273: "A judge is entitled to express his opinion of any of the facts provided he makes it clear to the jury that it is their province to decide the matter. Even if he does so, however, there are limits as to how far the judge should go … . In some cases a judge may properly feel it is his duty, acting judicially, to express his opinion and in others, acting judicially, not to express his opinion, but if he does he should not use such language as leads the jury to think that he is directing them that they must find the facts the way that he indicates … . Whether he expresses an opinion may depend on the conduct of the trial, including what counsel say in their addresses, and consequently the judge who presides at the trial (and he alone is fully seized of these matters) has a wide discretion. If some matters have not been really contested it may well be not only proper, but in the interests of bringing the jury to the substantial issue in the case, for the trial judge to indicate to the jury that they should not have much difficulty in finding various matters." 176 In the present case the matters to which objection is taken on appeal, as quoted above, are expressed in terms of a "direction". They are not and do not purport to be an expression of opinion as to findings of fact open to the jury. In my opinion, the primary issue that arises on this ground of appeal is whether or not there was a risk that the trial judge's directions would be seen by the jury to have been a direction on an issue of fact. 177 The problem arises because of the use of the word "irrelevant". This word is curt and all-encompassing. It suggests that the jury should put this matter entirely out of its mind for any purpose. The subsequent reference to "if it is established that the elements of criminal liability are established against Mr Hannes", may not have been understood as words which strictly limit the circumstances of 'irrelevance'. 178 The most important issue of fact in the case was whether or not "Hannes was Booth". It was an essential aspect of the Crown's case that certain critical acts performed in the name of "Booth", by a person purporting to be of that name, were in fact acts performed by Mr Hannes. If there was any real risk that the jury understood the trial judge's direction to the effect that it was "irrelevant" that another person was "involved", as requiring the jury to ignore some piece of evidence capable of being weighed in the balance by them in determining this basic issue, then there can be no doubt that the trial has miscarried. 179 On its face, the direction does not purport to be a direction with respect to facts. It purports to be a direction with respect to the law. The reference to the relevance of the involvement of another person is related to the proposition "if it is established that the elements of criminal liability are established against Mr Hannes". As a proposition of law, this is correct and the Appellant did not challenge it. The issue is whether or not there was any real risk that the direction could have been understood to go beyond a direction of law in this sense. 180 It is of significance that Mr Hannes was represented by very experienced counsel at trial who did not object to the direction on the basis now under consideration in this Court. That in itself is indicative that there was unlikely to be misunderstanding on the part of the jury. Nevertheless, it is necessary to look at the whole of the circumstances in order to assess whether or not a risk of the relevant character could be said to exist. 181 The first occasion on which the direction was given was towards the beginning of her Honour's summary of the submissions made on behalf of the defence. It was to these submissions that her Honour would have been understood by the jury to be referring when she mentioned "Mr Robberds' scenario". Her Honour had said on the previous page that the first proposition in the defence case was: "Mr Robberds told you that it is the Accused's case that he did have a syndicate partner and that that person does exist. He told you that for the purposes of these submissions he would call him Mark Booth. His submission to you was that it was Mark Booth and not the Accused who purchased the November $2 options." (AB2132) 182 The subsequent passage in which the 'irrelevance' direction was given commenced with her Honour saying: "The first matter that Mr Robberds took you to was this question of the existence of another person. What I am going to do now Members of the Jury is to give you a direction in relation to this question of whether or not there were two people involved. You may or may not recall that the Crown raised that this was a possibility in his opening address, pointing out to you that there - well he pointed out to you that so long as the elements of criminal liability could be established against Mr Hannes, then any involvement, criminal or otherwise, of another person does not affect Mr Hannes' liability." (AB2133) 183 The second occasion on which her Honour made the direction was in response to a question from the jury with respect to simultaneous phone calls, namely the evidence that on 27 September 1996 a call was made on Mr Hannes' mobile phone at precisely the same time as someone obtained access to the voicemail of the account opened by "Booth". Her Honour outlined the various arguments of the Crown which could explain the purported overlap in time between the two calls. It was in that context that her Honour repeated her earlier direction. 184 At the trial, the first reference to the formulation "no other person involved" occurred in Mr Robberd's address to the jury, towards the conclusion of which he said: "In order to accept the Crown case, the Crown has to satisfy you, beyond reasonable doubt that there was no other person involved and for the reasons which we gave to you in detail the other day we submit that there is a reasonable doubt about this …" (AB1885 line 30) 185 Counsel proceeded to refer to some of the points that he had made in greater detail the previous day. He specifically mentioned the evidence of two witnesses, Mr Brear and Ms Wilkins, who gave the description of a person who attended upon them as having a crewcut; the fact that twelve important calls were not made on Mr Hannes' mobile phone; the existence of two simultaneous phone calls on 27 September; and the evidence of another witness, Mrs Pollard, that the person with whom she dealt was not the same as the photograph of Mr Hannes in the newspaper. After summarising these points, Mr Robberds concluded: "… so that is a brief summary of the reasons why we submit that the Crown will not satisfy you beyond reasonable doubt that there was no other person involved." (AB1885 line 52) 186 On two occasions, counsel for the Appellant told the jury that the Crown bore an onus of establishing that "there was no other person involved". 187 This submission on behalf of the Appellant evoked the following response from the Crown at AB1894 line 1: "The submission made this morning that the Crown must establish that no other person was involved is quite misleading and I opened on this basis your Honour. The Crown doesn't have to establish that no other person was involved, the Crown has to establish that Mr Hannes was himself criminally involved. If it turns out that he had a partner who was criminally involved or not criminally involved it makes no difference and I don't want to get into questions of joint criminal liability Mr Robberds seems bent on it." 188 The Crown reiterated its position at AB1902 lines 6-20: "I come to this proposition about a submission was made that repeatedly the two people were involved with the suggestion that this would exclude the liability of Mr Hannes. It makes no difference … so long as Mr Hannes' criminal liability is established in respect of him transacting the purchases with Mr Staehli it makes no difference if somewhere or another lurking in the background, he had a syndicate partner involved or not involved, that is to say criminally or otherwise." 189 I emphasise one part of this Crown submission - "so long as Mr Hannes' criminal liability is established in respect of him transacting the purchases with Mr Staehli". I note that the reference in her Honour's direction to establishing "the elements of criminal liability" did not specifically identify the continuing necessity to establish that the Appellant purchased the options, i.e. "transacting the purchases with Mr Staehli", to use the terminology of the Crown submissions. 190 The proposition originally advanced to the jury by counsel for the Appellant was a legal proposition, to repeat: "… the Crown has to satisfy you, beyond reasonable doubt that there was no other person involved …" 191 Her Honour was entitled to give the jury a direction of law that the Crown was not subject to any such obligation. However, the terminology her Honour adopted in this respect employed the word "irrelevant". The issue is whether in doing so her Honour went beyond correcting the error of law in the address by counsel for the Appellant. 192 The Appellant submitted that the direction with respect to "another person involved" constituted a fundamental shift in the Crown case at a time when the Appellant had no proper opportunity of responding to it. However, as her Honour said in the course of her summing-up, and as the Crown reiterated in this Court, the Crown had opened with the proposition that if it turned out that some other person was involved, even criminally, this did not make a difference so long as the elements of liability asserted by the Crown against Mr Hannes were established. The direction of which complaint is made does use such terminology. 193 The Crown made it clear throughout its submissions that it was Mr Hannes, using the persona "Mark Booth", who purchased the securities and that it was also Mr Hannes who acquired the bank cheques. There was not, in my opinion, any change in the Crown case in this respect. 194 The obligation assumed by the Crown to establish beyond reasonable doubt that the critical acts performed in the name of "Mark Booth" were in fact performed by Mr Hannes, was referred to by her Honour on a number of occasions. 195 Early in her directions to the jury her Honour explained that she would identify the essential elements of the insider trading charge and relate the evidence to those elements. Her Honour commenced with the first element being that the accused purchased securities, namely 5,000 $2 November 1996 option contracts. With respect to that first and basic element - that it was the accused who effected the purchase - her Honour described the Crown case in the following way: "The Crown case is that Mr Hannes purchased those 5,000 contracts, the two dollar November options, between 17 and 20 September 1996 in the name of M Booth." (AB2016) Her Honour reiterated the point: "… the Crown case is that Mr Hannes purchased those two dollar options using a false name, M Booth." (AB2016) 196 Her Honour went on to indicate the degree to which the Crown regarded the identity between Mr Hannes and "Booth" as essential to its case in the following way: "The Crown has accepted that as part of its reasoning, in fact an indispensable step in respect of this offence, is that Mr Hannes conducted those transactions as Mr Booth, and that is put in issue by the defence. The Crown must satisfy you beyond reasonable doubt that Mr Hannes is Mr Booth. If the Crown has established to your satisfaction beyond reasonable doubt that Mr Hannes is Mr Booth, I suggest that you would not be troubled in concluding at that point that Mr Hannes purchased those option contracts." (AB2016-2017) 197 After her Honour's outline of the elements of the offence, immediately before turning to the elements of the offences under the FTRA, her Honour summarised the position in the following way: "So, members of the jury, you need to be satisfied in respect of each of those elements beyond reasonable doubt, and right at the forefront of what I have said in respect of each of those elements is that the Crown has got to satisfy you that Mr Hannes is Mr Booth, and that beyond reasonable doubt." (AB2084) 198 With respect to the third count in the indictment, namely the purchase of the bank cheques, her Honour said: "So members of the jury, you have to be satisfied beyond reasonable doubt that the accused Mr Hannes was the person who entered into the transactions, that is each of the nine transactions which are particularised in the indictment. The Crown case is that Mr Hannes purchased those cheques, using a false name, that is the name of M Booth and again you will need to be satisfied by the Crown that the person referred to as Mr Booth is in fact Mr Hannes." (AB2096) (A subsequent correction to this direction is not material for present purposes.) 199 The point was reiterated in the context of the jury turning to the mental element of the FTRA offences, when her Honour commenced her remarks with the observation: "… if you have been satisfied by the Crown that Mr Hannes is Mr Booth …" (AB2106) 200 When her Honour came to summarise the submissions made on behalf of the Crown, her Honour commenced with the following: "The Crown submitted to you that Mr Hannes is Mr Booth and once you reach that point, which he submitted to you one reaches in a couple of very short steps in this case, that Mr Hannes is Mr Booth, it is really a couple of more short steps to be satisfied beyond reasonable doubt in respect of each of the offences. He submitted to you that Mr Hannes is the person M Booth who transacted not only the purchase of the bank cheques but transacted the purchase of the options from Mr Staehli, he opened the mail box and did all of those other things in the name of M Booth or Mark Booth." (AB2122-2123) and "The Crown case is that the Accused, Mr Hannes, used a false name, false identity of M Booth or Mark Booth, spent the $90,000 buying $2 November call options in TNT …" (AB2123) 201 When her Honour came to summarise the Crown submissions with respect to the FTRA counts her Honour said: "… the Crown has submitted that in respect of the insider trading the Crown has established its case in respect of each of the elements contained in that offence and that of course includes establishing that Mr Hannes is indeed the person Mr Booth." (AB2131) 202 In the context of giving the Weissensteiner direction her Honour made a further reference to this issue in that one of the inferences which could be more safely drawn, by reason of the absence of evidence, is that "Mr Hannes is Mr Booth" (AB2222). 203 Her Honour's references to this matter in the context of the Weissensteiner direction occurred after the first direction concerning the 'involvement' of another person was given to the jury. 204 It is also material to note, that after both directions now complained of were given to the jury, the jury asked a further question seeking a definition of reasonable doubt. In the context of answering that request, by reiterating the standard of proof, her Honour said: "The Crown must satisfy you, you the jury, beyond reasonable doubt of the guilt of the accused by establishing each of the essential ingredients of the charge to that standard." 205 The critical issue, in my opinion, is whether the direction, albeit framed as one of law, could have been understood by the jury to constitute a direction with respect to a finding of fact on one of the matters which constituted, or was relevant to, element of the offences, specifically with respect to the insider trading charge, the purchase of the securities and, with respect to the second of the FTRA counts, the acquisition of the bank cheques. 206 In the light of the frequent reiteration of the Crown case that "Hannes was Booth", I do not believe that the jury would have had any confusion that they had to find Mr Hannes purchased the securities and acquired the bank cheques. Nevertheless, the terminology employed that it was "irrelevant" that "another person was involved", was capable of misleading. There may have been a possibility that it suggested to the jury that the evidence, such as it was, of 'involvement' - whatever that ambiguous term may have been taken to mean - was not evidence that they should take into account or give weight to in determining some issues of fact. 207 In this respect, of particular significance is a passage in her Honour's first direction to the jury (AB2133-2134), where her Honour sought to explain the purpose for which she had given the direction. She did so by referring to the submissions of Mr Robberds concerned with the fundamental issue of whether or not "Hannes was Booth". 208 Towards the beginning of these submissions by Mr Robberds, after noting that the accused's case was that he did have a syndicate partner, Mr Robberds had addressed the jury in the following terms (AB1789 line 39-44): "Now does Mark Booth exist. I want to address you on the question of whether the Crown has proved whether the accused syndicate partner exists. This question was addressed by the Crown with a submission that the accused is Mark Booth, which in effect meant that he did not have a syndicate partner." 209 Her Honour plainly regarded this submission as pertinent to the direction she gave on the 'irrelevance' of the 'involvement' of another person. Immediately after the first occasion on which her Honour gave the direction she said the following at AB2133-2134: "Now I will take you to those - that part of Mr Robberds' submissions where you may recall that he framed his submissions in terms of putting matters to you and then asking you as it were, 'does Mark Booth exist' and that is why I have given you that direction at this point of time. Mr Robberds went on to say to you, 'I want to address you on the question of whether the Crown has proved whether the accused's syndicate partner exists' and reminded you that the question was addressed by the Crown with a submission that the accused is Mark Booth, which in effect means that he did not have a syndicate partner. So again I just make it clear that that is the reason why I have given you the direction at this point of time on the question of the involvement of another person." 210 As can be seen, her Honour referred to the earlier submission of Mr Robberds on the issue expressed by him in terms of the Crown proving some element. The submission was not clearly expressed and the infelicity of language is repeated in her Honour's direction. However, it is, in part, by reason of that submission that her Honour explains the need for the direction which she has given. 211 Considering the summing-up as a whole, in the context of the submissions made, I conclude that there was little risk that this direction would have confused the jury on the issue of whether Mr Hannes committed the key acts in the name of "Booth". 212 However, two other factual issues before the jury may have been confused by the bluntness of the terminology employed in this direction. The Crown asked the jury to find that there was no syndicate partner. Indeed, this was one of the three inferences about which the Crown successfully sought a Weissensteiner direction. 213 The Crown also contended that "Hannes was Booth" and successfully sought a Weissensteiner direction in those terms. That proposition went beyond what was necessary for the Crown to prove its case: namely, that Mr Hannes was the person who acquired the bank cheques and purchased the securities. The contention was that every act done in the name of Booth was done by Mr Hannes and, indeed, that there was no such person as "Mark Booth", and no syndicate partner. 214 Considerations of this kind are the foundation of the Appellant's submission that there was a fundamental shift in the Crown case. The Appellant's submissions do not identify how the case would have been differently presented if this "fundamental shift" had not occurred. In any event, the Appellant did not challenge the suggestion that the legal proposition to similar effect had been referred to by the Crown in its opening. The prejudice, in my opinion, was not to the presentation of the defence case. There may have been prejudice, however, by confusing the jury. 215 Whether or not another person was "involved" - in the sense of whether or not a person other than Mr Hannes had any interest in the investment in TNT options or had taken any step in the process of investing - was plainly relevant to the two issues posed by the Crown: "there was no syndicate partner" and "Hannes was Booth", insofar as the latter proposition went beyond the acts of Booth that constituted part of the actus reus of the offences. Although her Honour qualified her direction that any involvement was "quite irrelevant" by saying that it was irrelevant "if … the elements of criminal liability are established against Mr Hannes", there was, in my opinion, a risk of confusion. 216 Some of the "elements" of criminal liability against Mr Hannes were, in the context of this case, said to be established in part on the basis of the lack of "involvement" or another person, i.e. "no syndicate partner" and "Hannes was Booth". The direction has a circularity which a jury could well have found confusing. Elements of the Insider Trading Offence 217 Towards the commencement of her summing-up to the jury, her Honour gave directions to the jury based on a structure of four elements of the offence: (i) Purchase by the Appellant (at AB2015-2018). (ii) Possessed of information that was not generally available (at AB2019-2025). (iii) Materiality (at AB2025-2026). (iv) The mental element (at AB2026-2029). 218 In this Court, the Appellant's submissions proceeded on the basis of distinguishing, as separate elements, the issue of "possession of information" and the issue of "general availability". Her Honour had introduced the relevant part of the summing-up by combining these two factors when she said: "… I move on to tell you about the second element in this offence, and that is that the accused was possessed of information that was not generally available." 219 Her Honour quoted to the jury the definition of "information" found in s1002A(1). Her Honour also quoted to the jury the definition of "generally available" in s1002B(2). 220 In terms of identifying the information for the purposes of what her Honour was then dealing with, i.e. both issues of "possession" and of "general availability" her Honour first described the information in general terms as: "… the information that the Crown relies on here is the information relating to the possible take-over of shares in TNT." (AB2019) 221 Her Honour went on to identify the information precisely in accordance with the particulars supplied by the Crown at AB2019-2020: "The Crown case is that there was a prospect that shares in TNT would be the subject of a take-over and that there was a prospect that the offer would be at a price in excess of $2 per share. The Corporate Advisory Division of Macquarie Corporate Finance was advising TNT in connection with that possible take-over, and it placed securities in TNT on an embargo list. That is the way the Crown particularised the information with which Mr Hannes was alleged to possess, which information which was not generally available. That is to say that was information, that information was not in the market place." 222 Thereafter although her Honour made a number of references to aspects of the take-over and to "information" her Honour did not again reiterate in full the particulars as supplied. The Appellant submitted that her Honour's failure to subsequently refer the jury to the specific "information" particularised was a defect in the summing-up. 223 The summing-up was, necessarily, a long one. The jury needed to keep prominently in mind, the specific "information" which it had to find beyond reasonable doubt, to satisfy the various respects by which the "information" must exist in a number of elements. It would have been preferable if they had been reminded of the particulars more than once. On its own, I would not have been prepared to find that this failure constituted an error of law. However, it reinforces the conclusion I have drawn on the basis of other grounds of appeal. "Possessed Information" 224 At AB2019 and following, her Honour addressed what she described as the second element in the offence, namely, "that the accused was possessed of information that was not generally available". To some extent her Honour dealt separately with the issue of "generally available", though the evidence did overlap in this respect. As noted above, the submissions in this Court addressed the question of "possession" separately from that of "general availability" and it is convenient to do so. 225 Her Honour referred to the evidence on which the Crown relied in this respect, evidence to which the jury had recently been taken in the addresses of counsel in some detail. This included the evidence of directors and employees of Macquarie Bank and, particularly, of MCF. Her Honour referred to the evidence that MCF was retained to advise TNT and described generally the functions they performed in this respect. She referred to documents that had been brought into existence in connection with this retainer. She referred to these documents being "accessible in the offices of Macquarie Corporate Finance". Her Honour also noted, what the Crown said were admissions made by Mr Hannes in his record of interview and in his conversations with Mr Moss. The 'admissions', to which her Honour would later take the jury in some detail when summarising the respective cases, were admissions relating to the state of knowledge of Mr Hannes. 226 In the course of summarising the evidence pertinent to this particular element of the offence, her Honour emphasised (AB2024 and AB2025), that the defence disputed that the Appellant "had any knowledge of a possible takeover of TNT". 227 The Appellant submitted that the trial judge's direction to the jury in this respect were open to the interpretation that it was sufficient if the Appellant "knew something about Tennis", the MCF codename for the TNT retainer, and that it was enough for the Crown to prove that the Appellant merely had access to the internal documentation. The Appellant also submitted that the trial judge did not direct the jury as to the meaning of "possessed information". He submitted that the jury should have been specifically directed that this concept contained an element of awareness so that a mere physical relationship, e.g. the existence of a document in the same office, would not be sufficient. It was further submitted that in the light of her Honour's summing-up, the jury may not have comprehended the difference between the mere existence of the Information and the Appellant's alleged possession of it. 228 Reading the summing-up as a whole, I have no reason to doubt that the jury understood perfectly well that they had to find, to use the Appellant's terminology, an 'awareness' of information and that there was a distinction between the mere existence of certain information in the offices of Macquarie Corporate Finance and whether or not that information came to the knowledge of the Appellant. 229 There was no direct evidence that the Appellant ever had the internal documentation in his possession. Nevertheless, there was a considerable body of evidence about the accessibility of that information in the offices of MCF. The evidence of late night visits by the Appellant to his office was directed to establishing that there were occasions on which the Appellant could have availed himself of the opportunity of accessing the documentation without members of the team working on the project knowing about it. 230 There was direct evidence of the Appellant's awareness. Mr Murdoch, a member of the Tennis team, gave evidence of a conversation with the Appellant. He said that in the week preceding 15 July 1996, Mr Hannes approached him and asked "What valuation have you come up with" referring to TNT. Mr Murdoch responded by informing him that the range was between $2.25 and $3.27. 231 Furthermore, in his record of interview Mr Hannes said that he knew "there was this transaction going on for TNT". Mr Moss gave evidence that Mr Hannes said that he knew that the Corporate Advisory Division was "working on a possible acquisition of TNT" (AB279 line 25) 232 The course of the Crown's submissions made it perfectly clear to the jury that the Crown case was that Mr Hannes had actual knowledge of the information as particularised and that that knowledge was, to a substantial degree, based on access to MCF information, including that contained in internal documentation. 233 After referring to Mr Murdoch's evidence, the Crown addressed the jury in the following way: "And what does that tell us about Mr Hannes' knowledge. Well he knew about 'Tennis' he knew a valuation was being done. He knew that Mr Murdoch was working on the valuation. He knew the valuation was high, maybe very high and maybe most importantly, he was interested to know and he got a response, $2.25 to $3.27 … what has happened here is that Mr Hannes has chosen the most junior member of the team, the business analyst to ask about the valuation. Once again, when all the circumstances of the case are looked at together, there is nothing particularly innocent or accidental about this conversation and it puts Mr Hannes in a position of knowledge of what's going on with the valuation." (AB1734 lines 35-55) 234 Earlier the Crown had indicated this to the jury in the context of what it submitted was covert action by Mr Hannes in employing the pseudonym "Booth": "Members of the jury the Crown would and does say to you that that says a great deal about his state of knowledge about what was going on in [Macquarie] Bank. He was doing this secretly so that he could get away with it as it were, but a false identity of M Booth." (AB1724 lines 55 to 58). 235 The Crown also told the jury: "Let's just recap for a moment on what we've proved directly in respect of Mr Hannes' knowledge. He knew that investing in TNT securities was against the rules. He knew that there was working going on for TNT. He knew that there was a takeover in this transaction as he said in the record of interview. He referred to this transaction or the acquisition in his conversation with Mr Moss. He knew there was a valuation. He knew Mr Murdoch was working on it. He knew the valuation was high - $2.25 to $3.27. He was probing for information. He acted alone and not through some investment syndicate as he said. He knew as we've heard already that TNT Securities were on the embargo list. He signed a piece of paper on 16 July which confirms that. He knew who was on the team. He knew that Mr Murdoch was doing the valuation or was working on the valuation. He knew the fee was high. … He knew that large fees were being charged. He knew about the state of the nation. … By inference, members of the jury, through the material that I've you through - and we say that that material that I've taken you to directly, including the admissions, goes to establish the crown case and more but we say by inference that Mr Hannes from the material I've taken you to in respect of the documents available and the late night visits and what one infers from all of the circumstances including the trade itself that Mr Hannes actually put himself in a position to know everything that he needed to know about the TNT takeover. I won't take you through the documents again but we had the project tennis valuations of 11 and 12 July. We had the update of 15 July. We had Mr Poole's files that were available, Susan Martin-Rousselot's files, Mr Murdoch's files, the late night visits we've been through, access to the computer, access to the library, the purchase themselves of the $2 call options in circumstances that this would be quite irrational otherwise. I think you'd accept, members of the jury, that the effect of the evidence is that Mr Hannes is a careful type of person … [h]e's a careful type of person, not the kind of person who's going to throw away $90,000. So we have direct evidence and evidence by way of the drawing of inferences from what occurred and you are entitled to reason in that way. You're entitled to reason from the use of the false identity that he did so because he was in a state of knowledge." (AB1762 line 11, AB1763 line 10). 236 The Crown directed the jury's attention to the specific elements of the offence including the element of "possess information". It identified precisely the particulars, as supplied, to constitute "the information that we say Mr Hannes was possessed of" (AB1771 line 41). 237 In this context the Crown referred to the evidence about "whether or not Mr Hannes had information" (AB1773 line 50) and added: "… it is the Crown case that to buy $2 call options for November you would have to have very specific knowledge because as Mr Smith said they're just a waste of money if you buy them without that information." (AB1773 line 52-56) 238 The Crown returned to the issue of "what Mr Hannes knew" and outlined the evidence again: "You've heard that he was an executive director of the very bank advising TNT; that he himself was experienced in takeovers; he knew all about project tennis and the fact that there was a team working on it; asked those very specific questions and indicated a knowledge to Mr Murdoch; knew there was a big fee; admitted in the record of interview … 'I was aware there was work going on for TNT, I never on any occasion talked to him about the work that Macquarie Bank was doing for TNT' … We see so too in respect of Mr Moss that it's a direct admission. He knew all he needed to know, he knew all about the transaction, he knew TNT was embargoed and he signed that document on 16 July. He knew he wasn't permitted to deal in TNT shares, he had access to, and I've already taken you to the evidence, he helped himself to the information that we ask you to infer on those days when he went into the bank. He made those unexplained phone calls at crucial times. I've already put to you that he bought the $2 call options in circumstances in which we submit it would be entirely irrational for him to do it, if he did not have inside information. He went to extraordinary lengths to conceal his actions, using false names, false documents, engaging in an elaborate charade. The documents contained on the search warrant show elaborate planning. When you put it altogether, there is only one inference to be drawn, and that inference is an inference of guilt in our submission. Now that addresses the question of whether or not Mr Hannes had the information." (AB1778 line 44, AB1779 line 18) 239 Counsel for the accused at the trial approached the case on the basis that the issue which the Crown had tendered for determination was whether or not Mr Hannes had acquired an actual state of knowledge by means of accessing documents within MCF. Mr Robberds commenced addressing the jury on this issue of 'possessing information' as follows: "The Crown case against Mr Hannes concerning knowledge is two-fold. It is alleged that he had access to the documents and I will be dealing with that further in this address and it is also alleged that as result of a number of conversations that he had with people or at meetings at which he was present he became aware of relevant details concerning Project Tennis." 240 He indicated that, in his submission, the evidence does not "indicate that he obtained any relevant information which would give him any inside information at all". 241 In the course of his submissions to the jury, Mr Robberds turned specifically to the issue of "possess information", being information in the form of the particulars (AB1877). He referred to the evidence relied upon in this respect by the Crown and indicated that the issue was whether actual knowledge had come to Mr Hannes' attention, inter alia, by access to documents. In the course of his submissions, Mr Robberds said: "So a fundamental question which arises in the Crown case is this, are you satisfied that on 21 August when Mr Hannes visited the office of Macquarie Corporate Finance late at night he accessed the project Tennis documents and obtained information which showed that a takeover was on the cards." (AB1878 lines 17-21) And for reasons he indicated to the jury: "… it follows that the Crown will have to satisfy you, in our submission, that it was on 21 August that Mr Hannes accessed the documents and obtained the information." (AB1878) 242 In conclusion he submitted: "We therefore submit to you that you will not be satisfied beyond reasonable doubt that Mr Hannes accessed any Tennis information when he called late on that night and we submit to you that you would not be satisfied that Mr Hannes did have information at any time that there was a prospect that shares in TNT would be the subject of a takeover, but there was a prospect that the offer would be at a price in excess of $2 per share." (AB1881 lines 11-19) 243 It was in the context of these submissions, that her Honour came to make the relevant directions to the jury. Her Honour read to the jury the specific particulars relied upon by the Crown and immediately said: "That is the way the Crown particularised the information with which Mr Hannes was alleged to possess, which information was not generally available." (AB2020) 244 Her Honour referred to the fact that certain documents were "accessible in the offices of Macquarie Corporate Finance" (at AB2024), noting that the defence disputes the contentions in this regard (AB2024) and added: "… in its defence the accused denies that he had any knowledge of a possible takeover of TNT and the accused puts in issue that a purchase of two dollar November call options on 19 September 1996 can only be explained by a purchaser having insider information." (AB2024-2025) And her Honour added: "… he denies that he had any knowledge of a possible takeover of TNT and he puts in issue that a purchase of the two dollar November call options on 18 September 1996 can only be explained by a purchaser having insider information." (AB2025) 245 In the course of her summary of the evidence, her Honour referred to the conversation with Mr Murdoch, the conversation with Mr Moss, identified the documentation located within MCF, referred to the late night visits and telephone calls to the office and also to the inference available from the fact, if the jury accepts the proposition, that Mr Hannes actually made the investment in the name of "Booth". Her Honour noted: "… what the Crown puts to you that Mr Hannes would not have entered upon this particular transaction unless he had specific knowledge." (AB2058) 246 In the context of referring to the case for the accused her Honour said that Mr Robberds told them that they would not be satisfied that "Mr Hannes accessed the documents" or that "he did have information at any time" about the prospect of a take-over (see AB2172). 247 Finally, it should be noted that one of the three matters specifically referred to in the context of the Weissensteiner direction, being an inference which the jury could draw more safely, was that "Mr Hannes knew of the prospective takeover" (AB2222). 248 This review of the addresses to the jury, places her Honour's summing-up in its context. There is no basis for the suggestion that the jury might have been confused in any pertinent respect. 249 The submission that the jury may have been confused into believing that it was sufficient if he merely "knew something about Tennis" or if the information simply existed in the offices of MCF and that the mere ability to access the documentation may have been sufficient to constitute this element of the charge, should be rejected. The submission that there was an error of law in failing to distinguish between physical possession and awareness of information should also be rejected. "Generally available" 250 Her Honour read to the jury the whole of s1002B(2) on two occasions. (AB2019, 2059). She did not at any stage read to the jury s1002B(3), nor was she requested to do so by counsel representing the Appellant at trial. 251 As I have also noted above, her Honour read to the jury the three sentences of the particulars as supplied by the Crown. Her Honour then added: "That is the way the Crown particularised the information with which Mr Hannes was alleged to possess, which information which was not generally available. That is to say that was information, that information was not in the market place." (AB2020) 252 Her Honour outlined some of the evidence relevant to this issue and added: "So the next question then is in terms of the elements, or ingredients, of this offence, is whether or not that information, the actual part of the charge, is the accused has possessed at the relevant time information that was not generally available, and in relation to those words 'not generally available' I have given you the definition what is provided in the Act itself as to 'generally available information' and what I direct you is that in that phrase that it was not generally available means that it was not, not available in the marketplace." (AB2023) 253 Her Honour returned to the issue of general availability at AB2082-3 when she said: "I read you the definition in the section this morning, and I do not think that you will be troubled with the words 'it consists of readily observable matter', I think that is reasonably plain English. And the next matter that is provided for is (b)(i) 'It has been made known in a manner that would, or would be likely to, bring it to the attention of persons who commonly invest in securities of bodies corporate of a kind whose price or value might be affected by the information'. That is price sensitive, that is what that means, and where would you be likely to find that out, and where would people who commonly invest in securities to find out information of a kind which may affect the price of the particular security, and that is in the market place. There is the final leg to that is that since that information has been made known, that there has been a reasonable period of time for it to be disseminated, that is to become known among such persons that a reasonable period of time for that to happen has in fact taken place." (AB2082-2083) 254 In his submissions to this Court, the Appellant identified a body of evidence which, he submitted, was relevant to the issue as to whether or not the information particularised was "generally available". He referred to the expert evidence given, on behalf of the Crown, by Mr Smith and, on behalf of the accused, by Mr Rhead. He also referred to exhibits which were tendered in the trial which referred to contemporary brokers' reports and newspaper articles on TNT. 255 It was a feature of this entire body of evidence that it did not encompass all of the material contained in the particulars as the relevant "information". This evidence related only to the first two of the four elements namely, the possibility of a take-over and the price at which such a take-over might occur. None of the evidence to which the attention of this Court was directed focused in any way on the last two elements of the information particularised namely, the proposition that MCF had been appointed to advise TNT with respect to this matter and that Macquarie had placed TNT on an embargo list, so that Macquarie employees could not deal in the shares. 256 The fact that the company was seeking advice with respect to these matters and the further fact that that advice was of sufficient significance to warrant an embargo of this character, was an important part of the insider information contained in the particulars. At whatever level of probability the prospect of a take-over at a price could be seen to exist at any relevant time, these further factors increase the quality of that information in a manner which is plainly of significance. 257 The content of the brokers' reports was of a character which was appropriately described in the Crown submissions as "speculative". On this appeal these reports were treated as relevant to the issue of whether or not the information particularised had become "generally available". No doubt if information had become "generally available" one would expect to find it in documents of this character. However, nothing in these documents went beyond market consideration of TNT's vulnerability to a take-over, accompanied by some valuations in excess of $2 per share, in accordance with the diversity of techniques that are used by brokers to value shares. 258 It is not necessary to express a final opinion as to whether material of this character is at all relevant to the issue of a "general availability". The "information" which the jury had to consider was whether or not there was a "prospect" that shares in TNT "would be the subject of a takeover" and whether or not there was a "prospect" that an offer "would be at a price in excess of $2 per share". References in the brokers' research were of the following character: "TNT as a take-over candidate" and "We currently value TNT at $2.20/share" (AB4546); "Takeover Value Estimated At $2.21" and "Takeover Value $2.21" (AB4689). Such references are of little, if any, assistance on the issue whether or not the information in the particulars was "generally available". However, the evidence was before the jury without objection and the jury was entitled to give it such weight as it thought it should receive. 259 The Appellant submitted that her Honour erred in not directing the jury as to the meaning of the words "not generally available". He submitted that twice reading out the definition was not sufficient. 260 Specifically, her Honour should have directed the jury as to the meaning of "readily observable matter". Her Honour had said that that phrase contained ordinary English words and there was no need for any direction. The thrust of this submission was that it does not appear from the terminology of "readily observable matter" in s1002B(2)(a) as to the persons to whom the relevant "matter" should be understood as "readily observable" and as to how such "matter" should be "readily observable". 261 On the issue of "to whom", the submission made to this Court was that unlike the second limb of the definition which refers to a limited class of person, i.e. persons who commonly invest in securities, no such limitation appears in the first limb. The submission was that the relevant "matter" need only be readily observable by the public at large. 262 On this basis no purpose would have been served by a direction from her Honour to identify "the public at large" as the relevant group conducting the observations. If the jury proceeded on such a wide basis then, on the submissions made in this Court by the Appellant, they were entitled to do so. If they proceeded on some narrower basis, then that was unnecessarily advantageous to the Appellant. 263 With respect to the second aspect as to "how" the relevant "observation" was to be made, the submission was that the ordinary meaning of the words was that matter had to be "easily able to be perceived by the senses in some way". This is also as broad a definition as one could conceive. Again if the jury proceeded on some narrower basis, then that was unnecessarily favourable to the Appellant. 264 I agree with her Honour that these plain English words required no elaboration on her part. 265 The submission was also made that the jury required further assistance with respect to the second limb of the definition. In his written submissions the Appellant submitted that the jury was not told that the "focus" of this limb of the definition was on "whether the information had been known in a particular manner". It was then asserted that the "focus" of the "focus" was "whether or not the information has been the subject of some report or release" which would or would be likely to bring the information to the attention of persons who commonly invest in securities. 266 The first "focus" is no more than a paraphrase of the definition which her Honour read to the jury on two occasions. The second alleged "focus" is also a paraphrase, save in so far as it restricts the "manner" by which information has been brought to the attention of such persons to a "report or release". No such restriction appears on the face of the statute. No restrictive direction in this regard was permissible, let alone required. 267 Finally, it was submitted that the jury should have been assisted by an explanation of the kinds of securities that might be affected. The Appellant's submissions posed the question whether or not securities that might have been affected were "securities of large public companies, or large transport companies, or some other type of company". Nothing in the section, or the circumstances of the case, suggests that any restriction to a particular category of securities was either pertinent or permissible. No issue arose in the conduct of the case that the options in question were not securities for the purposes of the application of the section in the particular context. No explanation of this character was called for. 268 The Appellant also submitted that her Honour erred in the references her Honour made, on at least two occasions, when identifying the general availability of information with information known in the "marketplace". There are dangers in substituting a popular phrase for a statutory formulation, particularly if the jury is directed, as it was here, that that is the 'meaning' of the statutory formulation, rather than by way of example or explanation. Nevertheless, a miscarriage of justice does not automatically follow. 269 The first submission made in this respect was that "the 'matter' need only to be readily observable by the public at large, as opposed to investors in the 'marketplace'", and that the reference to it "bore no relationship to the first limb of the definition of "generally available", which is not limited to the marketplace." The availability of such information to the public at large would encompass persons described as "investors in the marketplace". Accordingly, the submission appears to be that her Honour identified a narrower category than the statute permitted. If, without deciding, that is the proper construction of the provision, then her Honour's directions were unnecessarily advantageous to the Appellant and there was no error of law, let alone a miscarriage of justice. 270 It was then submitted that the words "in the marketplace" were "vague and ambiguous and misleading". If they in fact operated as words of restriction, again there would be no relevant error. This is made apparent by the Appellant's identification of the range of possible meanings in its submissions in the following terms: "Was 'the marketplace' the market for all shares in Australia, or the market for options or derivatives, or just the market for shares or options in companies of a similar nature to TNT." 271 All of those matters are capable of constituting matter that is "readily observable" or as defining the scope of the phrase "persons who commonly invest in securities". These are not alternatives which her Honour was obliged to direct the jury to consider. 272 This submission is of the character to which this Court referred in a joint judgment of Street CJ, McClemens CJ at CL and Slattery J in R v Holden [1974] 2 NSWLR 548 at 551F where their Honours said: "The criminal law should not be complicated by refined dissections of issues that must ultimately be presented to twelve laymen for their decision." 273 In the normal case it is inadvisable for a trial judge to substitute a different formulation for a statutory form of words, particularly when that is done not in a form of an explanation, but by way of direction as to the meaning of the word or words. Nevertheless, in the circumstances of this case where, it appears from the submissions of the Appellant in this Court, the direction had the effect of a narrowing the statutory formulation in a manner favourable to the Appellant, no error of law or miscarriage of justice of a character justifying the intervention of this Court has occurred. 274 The Appellant also submitted that her Honour erred in failing to specifically direct the jury's attention to the provisions of s1002B(3) which expand the scope of information being "generally available" to "deductions, conclusions or inferences" drawn from other matter. It was submitted that this was an important aspect of the definition because part of the information in the particulars could have been deduced or inferred from the information that was available. In this respect the Appellant relied on the brokers' reports which referred to TNT as a take-over target and submitted that it was reasonably open for the jury to conclude that this material consisted of "deductions, conclusions and inferences" which was drawn from information which was generally available in accordance with both limbs of the definition in s1002B(2)(b). 275 No doubt the analyses were "deductions, conclusions, and inferences" from matter that was "generally available". However, none of it is of the character of the "information" particularised. It is not about the "prospect" that there "would be" a take-over at a price above $2. Nor, obviously, is it about the fact that TNT had appointed MCF as advisers and MCF had placed TNT shares on an embargo list. 276 In my opinion, the information specified in the particulars was not of the same character as that contained in the brokers' reports. Those reports deduced from the objective circumstances of the company the possibility of a takeover. The brokers' reports also computed, on a variety of bases, the brokers' valuations, some of which were in excess of $2. 277 The "information" particularised, although it could have been more felicitously expressed in this respect, has an element of probability which is not present in any of the brokers' reports. Both of the first sentences as to the prospect of a take-over and of the price use the word "would". The reference to "prospect" indicates an element of indefiniteness. However, an element of "probability" rather than mere "possibility" is contained in the word "would". This element is emphasised by the third sentence of the particulars, referring to the involvement of MCF as an adviser and the embargo list. In my opinion, nothing in the nature of the "deductions, conclusions or inferences" contained in any of the brokers' reports suggested that it was based on information of the same character as that contained in the "information" as particularised. 278 In any event, even if I were wrong about the above, no complaint was made at trial for a further direction in this respect. Experienced trial counsel was of the view that the combination of his own address to the jury, together with her Honour's reference to the evidence in this respect, was sufficient to leave to the jury such material as he wished the jury to consider on the issue of "general availability". 279 I note that with respect to the third sentence of the particulars - the sentence which refers to the fact that MCF was an adviser and that it placed TNT shares on an internal embargo list - there is no evidence that anything of that character was "generally available". This is an essential aspect of the particulars on which the Crown relied. In the absence of any suggestion that this material was in any way available, and in the face of uncontested evidence that it was not available, I would not have found there to have been any miscarriage of justice if error in this respect had been shown. Materiality 280 In the section of her Honour's judgment where her Honour was outlining the elements of the offence, her Honour identified the element of "materiality" in the relevant part of s1002G(1)(a) and read s1002C to the jury. At this point of her summing-up her Honour referred to the Crown witness Mr Smith who gave evidence on this matter. 281 Her Honour then went on to identify what she described as "the final element" in the offence - the mental element - and read to the jury s1002G(1)(b). 282 Subsequently in her summing-up, after referring to evidence which went to the issue of "possession of information" (at AB2049-2059, making a further reference to the issue of general availability at AB2059-2060), her Honour referred again to the issue of materiality, introducing a paraphrase of the definition in s1002C as follows: "Then I wanted to say something about the evidence on this question of knowledge so far as it would influence somebody to invest or not to invest in this particular type of investment." 283 Her Honour referred in this context to the evidence of Mr Smith and, to some extent, that of Mr Rhead at AB2060-2061. Her Honour then said at AB2061-2063: "On the question of the share movements, the evidence is that when in fact the take-over took place on 1 October the fact was that the sales that occurred on that day were something like seventy million shares were sold in a matter of hours. That was after the announcement of the take-over, I should say, and that evidence is before you. … On 2 October, in terms of volume of shares traded seventy-four million odd shares were traded. That is on the day of the announcement itself. That is the document which is exhibit ES in the trial and which you have together with all the other documents giving details in relation to the sales, not only of the shares, the options. You will remember the various options, they ran through from amounts to a dollar through two dollars fifty and they are exhibits FA1 through to, I think FA6 or could even be more than six of them. But in any event they are there for you to see the various movements both in the shares. The first list is ES, that gives you the, in fact, the dealings in the shares themselves between 2 January 1996 right up until the calender year, 30 December 1996 and the sales that have been pointed out to you during the course of the trial was as at 12 July 1996 the shares were selling for round about the dollar twenty. Then when the shares at the time of the purchase of the shares by Mr Booth on 18 September 1996 the shares were then being traded around about a dollar fifty-seven, a dollar fifty-six, of that order. On 30 September 1996, that is one day before the take-over was announced they were trading at between one sixty-one and one sixty-three and you have the graphs which show the movements too." 284 Counsel at the trial objected to her Honour's reference to what had happened when the actual take-over occurred. He submitted that the take-over which in fact took place was irrelevant on the basis that the information that was in the marketplace on 2 October was not the information that the Crown relied upon, i.e. the particulars referring to the prospect of a take-over (see at AB2071-2072). 285 Her Honour later returned to the issue of "generally available" and "materiality" and provided the jury with a further paraphrase of the terms in s1002G(1)(a) and the definition of that phrase in s1002C (at AB2083). Finally, her Honour reiterated the second reference to the fact of materiality in the mental element of the offence (AB2083-2084). 286 Her Honour returned again to this issue, after further submissions. She again set out s1002C in full and reiterated that the first step was to identify the information which was "in the possession" of Mr Hannes, indicating that information to be the information which had to be assessed in terms of materiality. She then said: "… if you make a determination, as to what information that he did have available to him, then you move on and you have to have regard to the evidence, as to the quality of the information and it is then and only then that you then turn to the question of whether or not that quality of information is such that a reasonable person would be taken to expect that it would have a material effect on the price or value of the securities." (AB2209-2210). 287 The first submission made by the Appellant in this regard was that her Honour failed to explain the requirement of materiality other than in terms of the statutory definition and in particular, it was submitted, her Honour failed to emphasise and explain the objective nature of the test for "material effect". The statutory definition is in perfectly understandable language and, in my opinion, required no explanation in the circumstances of this case. I would also reject the submission that her Honour failed to explain or emphasise the objective nature of the test. On no less than six occasions her Honour either read or paraphrased the statutory definition in terms which employed the formulation of what "a reasonable person would expect". The jury could have been in no doubt as to the objective nature of the test which they had to apply. 288 It was also submitted that her Honour erred in directing the attention of the jury to a need to assess the "quality" of the information. As noted above her Honour said that the jury, after identifying the information that was in the "possession" of Mr Hannes, should identify the "quality of the information" and then turn to the question of whether or not "that quality of information is such that a reasonable person would be taken to expect" etc. A further reference, on the next page, was to similar effect: "… if you are satisfied about the quality of the material that you have found he was in possession of, then you may, or may not be satisfied that that was information of such a kind that it would have a material effect on the price or value of the securities." (AB2210) 289 The submission made to this Court was to the effect that her Honour introduced some form of "intermediate step" requiring the jury to assess the quality of the information before applying the test of materiality in s1002C. 290 The issue of "quality" of the information had arisen in the course of the examination and cross-examination of the experts. Mr Smith the expert called for the Crown had given evidence that if information about a transaction which might be a take-over had been generally available, this would have had the effect of dramatically increasing the price of TNT shares (AB1520-1521). In the last question and answer of the examination in chief of Mr Rhead, the Appellant's expert, he was asked about Mr Smith's evidence. He was asked to agree that such information would have an effect of the character to which Mr Smith had referred. He answered: "Depends on the quality of the information for openers …" 291 The issue of the quality of information was then taken up in cross-examination. (See AB1560) 292 In the course of the submissions by Mr Robberds on behalf of Mr Hannes, the reference to "quality of information" was expressly linked to the issue of materiality. He had earlier read the evidence of Mr Rhead to the jury (see AB1882 line 15 and AB1860 lines 12-18). 293 In the course of drawing an invidious comparison between the evidence of Mr Rhead and that of Mr Smith, Mr Robberds told the jury: "Mr Rhead correctly acknowledged that ultimately the materiality of the scenarios depends upon the quality of the information …" (AB1882 line 49-51) 294 Her Honour picked up this reference in the course of summarising Mr Robberd's submissions and said: "As to the scenario put to Mr Rhead he accepted that materiality depended upon the quality of the information which the Crown submits was good." (AB2174) 295 In this context, it does not appear to me that the jury would have been misled into approaching its task in any way other than in accordance with the statutory test, by introducing extraneous considerations into the application of s1002C to the facts of the case. The references to "quality" of information simply directed the attention of the jury to some aspect of its content or reliability of a character which it would be necessary for the jury to consider when deciding whether or not information of that kind would be likely to influence persons when deciding whether or not to buy or sell securities. 296 The next submission made with respect to this aspect of the directions was that at the various times that her Honour addressed the question of materiality she did not reiterate that the "information" which had to be assessed on this point was the "Information" as particularised. Her Honour had identified, and precisely quoted, those particulars at the very commencement of the passage of her summing-up in which she identified for the jury the various elements of the offence. Her Honour did not, however, reiterate the particulars on the subsequent occasions when she made reference to "information". It would have been preferable for the jury to be reminded of this, by reason of the length of the summing-up. I would not, however, have been prepared to hold that in all the circumstances, this constituted an error of law or miscarriage of justice. 297 The next challenge to this aspect of the directions concerns the references that her Honour made in the context of materiality to the events which actually transpired upon the announcement of the actual take-over. The Appellant submitted to this Court that the information which was available to the public at the time of the actual take-over was of a qualitatively different nature from the information that was particularised which referred to a mere "prospect of a takeover". 298 The submission made by counsel for the Appellant was that the events that actually transpired when the take-over was announced were irrelevant as it was not based on "the information" as particularised by the Crown (AB2071). Plainly this submission must be right in the sense that an actual announced take-over must have an effect on the price of securities of a different quantum from that of the "prospect" of a take-over. That does not however mean that what actually happened was irrelevant to a consideration of materiality with respect to the information as particularised. 299 No doubt the effect on the price of securities of a mere "prospect" was less than the actuality, but that does not mean that what actually happened was irrelevant to an assessment of the materiality of the prospect. Rejection of Draft Report 300 Her Honour rejected the tender of MFI 21 which was a draft research report prepared by Mr Myles, a research analyst with Macquarie Equities Limited. The final version of the document was tendered. It appears that, following a discussion between Mr Myles and Mr Poole, the head of the internal MFC team on the Tennis project, certain changes were made to the draft. Specifically, the take-over value was amended from $2.05 to $2.25, the words "TNT is vulnerable to a take-over" and "Companies who may be interested include - United Parcel Service, Federal Express, Dutch Post Office" - the Dutch Post Office being the ultimate successful bidder - were removed and a detailed section on "Looking at the Candidates", referring to the Dutch Post Office, was removed. 301 Her Honour rejected the tender. There were no reasons published for this decision but it appears from the submissions that the rejection was based on the ground of relevance. 302 In this Court, the Appellant asserted that the draft was relevant to whether the "information" was generally available and also to whether it was material to the price or value of the securities. It was also said that, as it appeared that Mr Myles had discussed the issue with Mr Poole, this was a contravention of the embargo system. Why this latter point is at all material to the admissibility of the document does not appear clearly from the submissions. Mr Poole gave evidence. He was not cross-examined with any suggestion as to the contents of the conversation he may have had with Mr Myles. In any event if, which does not appear on the evidence, there was some form of contravention of the "embargo system", that is not of any material relevance for this case. It is irrelevant to the issue of 'general availability'. 303 The primary submission put in this regard was that: "The fact that an analyst such as Mr Myles had deduced or concluded that TNT was a takeover target was a fact upon which the defence placed considerable reliance. It was immaterial that the document was only a draft and it was never disseminated. The point was that Mr Myles had been able to deduce this from information which was generally available. At the very least it raised doubts about whether the Information was not generally available and material to the price or value of the securities." 304 In my opinion in circumstances where the final draft report was tendered, with a take-over value of $2.21 (AB2689), such advantage as the defence could claim to receive from Mr Myles' analysis was available to them from the final report. In any event, for reasons I have identified above, I do not believe that analyses concerning the vulnerability to a take-over or brokers' valuations of a share, are of significance, if relevant at all, to the issue of general availability of the information particularised, or the issue of the materiality of the information particularised to the price of the securities. There was no error of law or miscarriage of justice in this respect. Objection to Other Evidence 305 The Appellant appealed against the admission, over objection, of evidence of conversations between MCF employees and officers who worked on the Tennis project. This ground particularly referred, as a separate category, to such evidence with respect to the period after 17 September 1996, being the date upon which instructions to acquire the options were given to Ord Minnett. The Appellant submitted that this evidence should have been rejected because it was either entirely irrelevant or its probative value was outweighed by potential prejudice to the Appellant including an alleged tendency of such evidence to be misused or to confuse. The submissions do not indicate why it was of any particular prejudice or why there was any tendency to mislead or confuse, save with respect to the evidence in the period after 17 September. In that respect the Appellant submitted that there was a real risk that an uninstructed jury would erroneously regard this evidence as evidence that the Appellant possessed the information at the relevant time, namely when the options were ordered. 306 The passages to which particular objection was taken included the following evidence: · Mark Johnson, a Director of Macquarie Bank, gave evidence over objection at AB326 concerning the structure of Macquarie Corporate Finance. · At AB329, Johnson gave evidence concerning what he learnt from Mr Poole in May 1996 about the retention of Macquarie Bank by TNT. · At AB329, Johnson gave evidence that he was told by either Mr Poole or Mr Mortimer that there had been a serious approach made to TNT by KPM who were interested in making an offer to acquire TNT subject to a number of matters. · David Poole, Executive Director of Macquarie Bank, at AB389 gave evidence concerning what he knew of project Tennis. · At AB451, Poole gave evidence that he knew from approximately 18 September that the price had been settled at $2.45. · Geoffrey Joyce, a Manager in Corporate Advisory, gave evidence at AB623 that on around 29 May or 30 May he learnt from TNT that KPM had indicated that they may be prepared to make a take-over bid for TNT. He gave further evidence that at that point the range mentioned was between $2.20 to $2.40. His evidence was that he gained this understanding from Con Green who was the Chief Financial Officer of TNT at that time. He gave further evidence concerning the formulation of the project Tennis team. · Joyce gave evidence at AB638 concerning various meetings with Goldman Sachs in September 1996. He said that the purpose of the meetings was to discuss or negotiate the basis on which KPM would be prepared to proceed to make a take-over offer. He said that to his knowledge, the negotiations concluded on 18 September. That was the point, he said, at which TNT management proposed to take a take-over price of $2.45 to their board. · Susan Rousselot, a manager in Corporate Advisory, gave evidence at AB659 about what she had been told concerning the take-over and the work she was asked to do. She gave further evidence that she understood from Mr Poole that the matter was to be treated very confidentially. · Alistair Lucas, an Executive Director at Macquarie Bank and head of the Corporate Advisory Division based in Melbourne, gave evidence from AB1002 that after the Ansett sale was announced, his understanding of what occurred in relation to TNT and KPM was that "there was a prospect that Tennis could proceed and David Poole informed me that it was proceeding." He said this would have been in late August or early September. 307 Some of the material, such as Mr Johnson's evidence about the structure of MCF, was plainly directly relevant so the jury could have an appreciation of the background circumstances and the context in which access to information was allegedly obtained. Some of the conversations refer to the confidentiality of the information and that was directly relevant to the issue of "general availability". 308 It may have also been the case that some of the conversations, or evidence as to the state of mind of the particular Macquarie officer, was relevant to an understanding of the context, and perhaps the contents, of documents held by, and material stored in the computers used by, these officers. However, the Crown made no attempt to justify each of the matters objected to in the Appellant's written submissions in this manner. Nor was there any suggestion that the state of mind and knowledge of the officers, of the character contained in the evidence to which objection was taken, may at some stage have been contained in some documentary or electronic form - and therefore accessible by Mr Hannes - but was no longer in such a form. 309 The state of knowledge of officers of Macquarie Corporate Finance was relevant primarily, and to a substantial extent solely, to the issue of whether or not Mr Hannes possessed the information at the relevant time. In this respect there had to be some evidence concerning the actual or possible recording of the information in a form capable of access by Mr Hannes. With respect to many of the conversations objected to, there does not appear to be such evidence. 310 It may be that at least some of the material could be of significance to explain the context within which officers appreciated the significance of the confidentiality requirements and that would, as I have indicated above, be relevant to the issues of general availability and materiality. The Crown did not seek, in this Court, to address the particular matters about which complaint was made in this way. 311 With respect to those conversations which occurred in the absence of the Appellant, her Honour gave the jury clear directions as to the limited use to which they could be put. With respect to the evidence of Mr Johnson about his conversation with Mr Poole, the subject of the second bullet point above, her Honour indicated to the jury that that evidence could not be used to show that Mr Hannes had that knowledge at that time (AB329 line 15). Her Honour returned to this matter in the summing-up when she told the jury: "… I did give you a direction along those lines, but I repeat it because it is of importance that you understand that any of that material, you cannot use that as evidence against Mr Hannes that he had knowledge of those matters at that time." (AB2060) "You will remember this morning, members of the jury, that I did give you a direction about conversations, or discussions that Mr Poole and Mr Johnson had had with other people at which they learnt certain things about the possibility of this take-over, but I want to extent that to not only conversations that occurred between Mr Johnson and Mr Poole, and between Mr Poole and people that he spoke to at Hong Kong at the meeting you have heard about, but there are discussions took place later, you may remember those from evidence that representatives of the KPN, or Dutch post office people came to Australia, they were here during the period, a few days before the week commencing 16 September 1996. What I direct you in relation to any discussions of conversations taking place at those meetings, that that is, the Crown does not rely on that evidence as evidence that Mr Hannes, the accused, knew what was said at those discussions or conversations, but the Crown does rely on the fact that the discussions in fact took place between the representatives of TNT and the representatives of KPN, that is the Dutch post office, who was, as you know, the entity that was interested in taking over the shares in TNT." (AB2080-2081. See also AB2205.) 312 As noted above the Appellant objected to the evidence concerning events after 17 September, when the instructions to acquire the options were made by "Booth". During the course of the trial, objection had been taken to certain documents and events that occurred after that date, including objection to the negotiations between representatives of TNT and KPN which concluded on 18 September at a price of $2.45. The Crown had also led the evidence of a subsequent late night meeting and visits to the premises by Mr Hannes, e.g. on 18 September. 313 Whilst any conversation which occurred outside the hearing of Mr Hannes would only be relevant if it explained either the contents of or the context of a document or electronic record to which Mr Hannes may have had access, the basic premise of the Appellant's case in this respect - that events after the instructions were given to acquire the options are irrelevant - should be rejected. Subsequent conduct may throw light on the state of the Appellant's information as at the date of giving such instructions. It may, for example, explain the failure by "Booth" to trade in the options in the period up to the announcement of the takeover. There were also further communications with Mr Staehli of Ord Minnett as to how to deal with the options. In these ways, conduct which suggests access to insider information at a later time than 17 September, may be relevant and, accordingly, weighed in the balance of the circumstantial case as to possession of information at the time of the acquisition. 314 The clear directions that her Honour gave as to the restriction on the use of the conversations were, in my opinion, such as to prevent a miscarriage of justice occurring in that respect. It is, nevertheless, difficult to see that the evidence of the conversations was admissible or that the state of mind of particular individuals at particular points of time was admissible, unless it can be justified in one of the ways referred to above, which was not done in the course of this appeal. In the absence of any attempt to establish that the information conveyed in the conversations, or existing in the mind of particular officers, was in any way accessible by Mr Hannes, or otherwise relevant, this ground of appeal is, in my opinion, in part made out. 315 As I have concluded that there should be a new trial, it is not necessary to analyse the evidence in detail. Counsel did not address the Court in the manner to which I have referred above. I should note that I was not intending to be exhaustive as to the way in which evidence of this character may be made relevant to issues in the trial. The matter will no doubt receive further consideration in any new trial. Expert Evidence 316 The Appellant submitted that her Honour's summing-up was defective in that she did not refer, or sufficiently refer, to the evidence including the brokers' reports, newspaper articles and the expert evidence of Mr Rhead called on behalf of the accused which, it was contended, was evidence that the jury should have taken into account on the issue of whether or not the information as particularised was "generally available". It was submitted that her Honour did not specify that this body of evidence raised a relevant factual issue, or even that it was an argument put forward by the defence, save in what was described as an "oblique reference". It was also submitted that her Honour's reference to Mr Rhead's evidence was negative and disparaging to the extent that her Honour, in effect, dismissed the evidence in a manner that was unfair. This being an issue for the jury to decide. It was submitted: "Clearly, the publication of newspaper articles and brokers' report could amount to information being made known in the manner referred to in s1002B(2)(b)(i). Such information would also be regarded as being readily observable." 317 The Appellant further submitted that when her Honour did purport to summarise the evidence relevant to the issue of "generally available", she only summarised the evidence of Mr Smith being the evidence called by the Crown. It was submitted that in the summary her Honour made no reference to the fact that Mr Smith's qualifications, expertise and experience had been challenged on key aspects of his evidence. It was submitted that the obligation of a trial judge to adequately present the defence case the jury carries with it an obligation to summarise the attack made on a witness heavily relied on by the Crown. It was submitted the jury would have been left with the impression that Mr Smith's evidence was definitive and conclusive on the point. 318 For the above reasons, it was submitted that insofar as her Honour did give the jury a resume of the evidence on the "not generally available" element, the resume was inadequate, unbalanced and unfair to the Appellant. Specifically, it was submitted that her Honour failed to give an accurate or balanced account of the defence case in relation to the information being "generally available" to the extent that the defence arguments on this issue were effectively withdrawn from the jury. 319 As the matter should, in my opinion, be remitted for a new trial, it is not necessary to deal with all these different grounds of appeal. 320 Her Honour made only the briefest reference to the evidence of Mr Rhead in the context of summarising the elements of the case. In the course of referring to the Crown's case and submissions, her Honour made a number of references to the evidence of Mr Smith, with two particular asides to the evidence of Mr Rhead. Her Honour provided more detailed references to the evidence of Mr Rhead, with occasional references to Mr Smith, in her summary of the defence case. It is not necessary to review all of these references. Suffice it to say that the points of difference between Mr Smith and Mr Rhead were not identified to the jury in a readily understandable way. There was a possibility that the jury failed to appreciate the defence case on the issues of 'general availability' and 'materiality' which should not be ignored. However, most of the major points appear somewhere in her Honour's judgment and, if this were the only ground for appeal, I would not have concluded that the summing-up itself manifested an error of law. 321 Although acknowledging that this is a matter for the jury, the defence case in these respects so strained credulity, that I would, if there were no other basis for appeal, have been prepared to apply the proviso. Nevertheless, as there is to be a new trial, it is relevant to note that the trial judge on such a trial could be of further assistance to the jury in this regard. Handwriting Evidence 322 I have had the benefit of reading the judgment of Dowd J in draft on the grounds of appeal relating to the handwriting evidence. I agree generally with his Honour's reasons but wish to add some observations. 323 At common law a document was not admissible if tendered for the sole purpose of providing a standard of comparison of handwriting. (Adami v The Queen (1959) 108 CLR 605 at 616; R v Browne-Kerr [1990] VR 78 esp at 82-83). This was altered by statute. The relevant statutory provision in New South Wales was s36 of the Evidence Act 1898. That section, along with the rest of that Act, was repealed upon the introduction of the Evidence Act 1995. The new Act requires a different approach to the tender of documents for the sole purpose of providing a standard of comparison, whether or not that comparison is to be made only by the tribunal of fact or by that tribunal assisted by expert opinion evidence on the handwriting. 324 The starting point for this, as for all, issues of admissibility is s56(1) of the Evidence Act which provides that evidence that is relevant is admissible. "Relevance" is to be determined in accordance with the formula in s55(1) i.e. if the evidence was accepted it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". It is the tribunal of fact that must "accept" the evidence in the final analysis. The trial judge must decide whether or not documents, or opinions based on documents, are admissible and must do so on the balance of probabilities pursuant to s142 of the Evidence Act. 325 In the present case the Appellant's objection to the admissibility of documents and to the opinion based on those documents was, in large measure, based on the proposition that the control documents which Mr Westwood used were not proved in accordance with common law rules. The Evidence Act 1995 requires a different approach to that which prevailed at common law. If a document is "relevant" it is admissible. 326 With respect to a number of documents there was no dispute that they were in the handwriting of the Appellant. With respect to other examples of handwriting, there was evidence which, on the balance of probabilities, could be and was accepted, to establish the proposition that the handwriting in the documents was that of the Appellant, by reason of the contents of the document and the closeness of the association between the document and the Appellant, eg his personal diary or a notebook found beside his bed. There was another category of documents about which Mr Westwood expressed the opinion that they were in the same handwriting as other documents which were otherwise established to be in the handwriting of the Appellant. 327 Mr Westwood gave clear, cogent evidence as to the steps by which he formed the respective opinions, at the different levels of certitude, which he expressed in his evidence. There is, in my opinion, no basis for an objection that the evidence was inadmissible because it constituted "an opinion on an opinion". 328 The expression of the first opinion, to the effect that certain handwriting was in the same hand as other handwriting, established a basis for the admissibility of that first mentioned handwriting by reason of its relevance, linked by a second opinion, to the issue of the handwriting on a third group of documents. The second, and critical, opinion concerned handwriting on documents directly in issue in the form of signatures on letters and transactions on the respective accounts. The latter opinion was based on a process of comparison and of reasoning, which was logical, probative and fully articulated before the jury. What, if any, effect the fact that a two stage process occurred should have on the acceptance of this final opinion, was a matter of weight for the jury. Identification Evidence 329 I agree with the reasons of Dowd J. MFI 95 330 Studdert J has set out the transcription of MFI 95 provided to the Court by the Appellant without objection from the Crown. Studdert J sets out the issues raised by the Appellant to establish a basis for the admissibility of this document. 331 The test of relevance in s55(1) of the Evidence Act 1995 is: "55(1) "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." 332 Studdert J has set out the relevant passages from the joint judgment of Gaudron and Kirby JJ in Papakosmas v The Queen (1999) 196 CLR 297 at pars [52], [56], [57] and [58]. To reiterate their Honours' formulation at par [52]: "… the circumstances in which a statement is made may sometimes render it probative of the facts asserted." 333 Such circumstances, to use the terminology of s55(1), "could rationally affect the assessment of the probability of the existence of a fact in issue". 334 To similar effect are the observations in the joint judgment of Gleeson CJ and Hayne J in Papakosmas at par [22] that the test of relevance is satisfied in the case of an assertion by a mortally wounded victim of the identity of her assailant. The surrounding circumstances are such as to rationally affect the assessment of the probability of the facts asserted. 335 There was no evidence as to the circumstances in which and the purpose for which the statements, now reflected by mechanical reproduction of indentations on the blank page in MFI 95, were written. There was no evidence that the document was in the handwriting of the Appellant. However, the submissions below and in this Court proceeded on the basis that it was. (See cl 6 in Part 2 of the Dictionary to the Evidence Act.) There was no evidence as to who it was who caused the relevant page to be removed. However, the submissions in this Court proceeded on the basis that the Appellant had done so. With this limited evidence, the relevance of the document must be determined by inferences to be drawn from the content of the document and from the fact that the Appellant did not retain it. 336 The Appellant contended that the nature of the document - a list of "cons" and "pros" as to whether the Appellant should attend at the Australian Securities Commission for an interview - together with its specific content and the fact that he did not retain it for future use, was inconsistent with any suggestion of fabrication or concoction, at least to the degree required to pass the test that the statements "could rationally affect" the probability of the existence of facts in issue. 337 In my opinion, the nature of MFI 95 as a personal rumination and the circumstance that it was not retained, "render it probative of the facts asserted", in the words of Gaudron and Kirby JJ in Papakosmas. It was, in my opinion, relevant in that the statements in it could rationally affect the assessment of the probability of the matters referred to. This reasoning is also applicable to the issue of reliability with respect to the application of the hearsay rule. The fact that surrounding circumstances, such as the failure to retain it, do not necessarily suggest reliability is indicated by the definition of the word "representation" in the Evidence Act. Paragraph (c) of the definition in the Dictionary expressly extends to "a representation not intended by its maker to be communicated to or seen by another person" and para (d) extends to "a representation that for any reason is not communicated". 338 The issue that arises is whether or not MFI 95 - or more accurately each relevant representation within MFI 95 - is rendered inadmissible by the exclusionary rule contained in s59(1) of the Evidence Act. I agree with the analysis of Studdert J that the document was not admissible on any of the other bases advanced: namely, that it was admissible as evidence of the Appellant's state of mind and that it ought be admitted pursuant to s81(2) of the Evidence Act. 339 The statutory formulation of the hearsay rule in s59 is as follows: "59(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation." 340 The Appellant contended that this rule did not exclude the relevant parts of MFI 95 on the basis the relevant assertions were unintended. 341 In his submissions to this Court, the Appellant identified these unintended implied assertions as: "A person using the name Mark existed, that he met this person in London in connection with the relevant events and that he did not acquire the options." 342 At a different point in the written submissions the Appellant contended that the contents of MFI 95 were relevant to "the issue of whether the appellant was Booth". 343 In his submissions to this Court, the Appellant did not refer to each specific reference in MFI 95, for the admissibility of which he contended, linking it expressly to a particular fact in issue. Rather, the Appellant's submissions approached the matter as if MFI 95 had to be admitted as a whole. 344 The submissions made in this Court suggest that the following are the parts of MFI 95 on which particular reliance is placed: " • Mark not guilty of insider trading but may have committed other offences - minor tax avoidance? - share trading if he has used Mignon's name • He may not be telling the truth (saw something on visit to MBL?) but contra agreed to give monies back … • Only way to establish that I am innocent • Have done nothing wrong • Am confident I have full story after my conversations with Mark in London • But must take Mark with me to ASC otherwise - will not be believed - how can you prove a negative i.e. that I did - not give him any insider information - not buy options - not open Ords CMT etc VITAL MARK BE THERE!!!" 345 Each of these statements constitutes a distinct "previous representation" for purposes of s59. Any document that is permitted to be tendered may, subject to the decision of the trial judge, only contain such statements as are admissible in accordance with the provisions of the Evidence Act, together with any necessary context of the statements. Alternatively, the trial judge may give the jury directions on the limited use to which the statements could be put subject, of course, to s60 of the Act. 346 With respect to each representation the Court must ask itself what was the "fact that the person intended to assert by the representation" and identify whether the representation is relevant to some other fact in issue or is otherwise admissible. 347 Some statements in MFI 95 clearly involve intended assertions. The reference to "I did not give him any insider information" is intended to assert the proposition it contains and, accordingly, is in my opinion, excluded by s59. The only relevance of the representation is the fact intended to be asserted by the assertor. The same is true of the statements "Only way to establish that I am innocent", "Have done nothing wrong", "I did … not buy options" and "I did … not open Ords CMT etc". The pertinent sentence in MFI 95 is not admissible to establish that the Appellant was innocent, had done nothing wrong, did not buy the options and that he did not open the account. A document which contained these assertions should not be admitted. 348 The reference in the Appellant's submissions to the issue being "whether the appellant was Booth" is stated too generally. Statements in MFI 95 are pertinent to that issue but not in those terms. So the statements "I did not buy options" and "I did not open Ords CMT" are only relevant to the issue 'was the Appellant "Booth"' because of the facts intended to be asserted by the author. Accordingly, they are not admissible. 349 The other fact which the Appellant's submissions in this Court suggested as a basis for the admission of MFI 95 is the fact that "a person called Mark existed" and that the Appellant met him "in connection with the relevant events". Expressed in this way, it does not appear to me that the facts are relevant to any issue in the proceedings. 350 The statements about the existence of a person called "Mark" is not, in my opinion, relevant to the issue of whether the Appellant was "Booth". The fact that someone has the same first name does not rationally affect the probability that Mr Hannes did the acts in the name of "Booth". However, the Crown tendered as an issue that 'there was no syndicate partner'. The propositions advanced in this Court could be understood to address this issue. 351 In the present case the statements "Mark not guilty of insider trading", "He may not be telling the truth", "after my conversations with Mark", "But must take Mark with me to ASC" and "Vital Mark be there" are, in one sense not, 'intended' to assert that there was a syndicate partner of that name. However, the context of the statements - especially "must take Mark with me to ASC" and "Vital Mark be there" - suggest an association with the transaction, a proposition which is necessarily encompassed within the intended representations about the need to take "Mark" to the ASC. 352 Similarly, the statement "Am confident I have full story after my conversations with Mark in London" is, in one sense, intended to be an assertion of the assertor's confidence, an irrelevant fact. However, the proposition which the Appellant advances - "that he met Mark in London in connection with the relevant events" - is necessarily encompassed within the statement that the conversations were the foundation of the "confidence". 353 The representation that a person called "Mark" was relevantly connected with the events is a proposition that would be described as an "implied assertion" in the literature on the law of evidence. The Law Reform Commission, in the report on which the Evidence Act was based, was aware of the conflict of authorities as to whether evidence of implied assertions came within the common law hearsay rule. (see the Law Reform Commission Report No 26 (Interim) Evidence vol 1 par [684] and vol 2 par [78]. 354 The Commission commented (vol 1 par [684]): "The proposal resolves the issue of whether the proposed rules should apply to implied assertions as well as express assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule: Differences . Evidence of conduct, including statements from which an implied assertion or fact can be drawn, suffers from weaknesses similar to those which affect evidence of express assertions of fact - the dependence on the perception, memory and clarity of the behaviour of the 'asserter' and the inability to test them by cross-examination of the 'asserter'. It will not, however, suffer from dependence on the veracity of the asserter unless the asserter intended that the assertion by implied from his conduct. If the implied assertion is unintended, then it is unlikely that there was any deliberate attempt to mislead. This analysis supports a distinction between intended and unintended implied assertions with only the former being included within a hearsay rule." 355 This statement of purpose does not assist in determining the situation, where one fact is necessarily encompassed within another fact. Issues of reliability arise in either case. The difficulty associated with the inability to test by cross-examination is true of both such facts. The continued significance of cross-examination was emphasised by the High Court in Lee v The Queen (1998) 195 CLR 594 at [32]. The same is true of the proposition that it was unlikely that there was any attempt to mislead. This was described by the High Court in Lee at [21] as the "chief" reason of the Law Reform Commission. If there is such an attempt to mislead in the proposition that "Mark" existed or that he must accompany the author to the ASC, then that attempt may well extend to the assertion necessarily encompassed within the intended assertion, i.e. that "Mark" exists and was associated with the events. 356 As McHugh J said in Pollitt v The Queen (1991-1992) 174 CLR 558 at 620: "The objection to hearsay evidence is that it is unreliable - the declarant is not subject too cross-examination and his or her truthfulness and powers of memory, recall, perception and narration cannot be tested. Because the reliability of an implied assertion is dependent upon the material expressly stated, the grounds for excluding express assertions are equally applicable to implied assertions. Consequently, for the purposes of the hearsay rule, implied as well as express assertions are regarded as 'contained' in an out-of court statement". 357 Similarly, an implied assertion of a fact necessarily assumed in an intended express assertion, may be said to be "contained" within that intention. For much the same reasons, it is often said that a person intends the natural consequences of his or her acts. 358 Before the enactment of the Evidence Act there was a wide range of irreconcilable authorities and commentary as to whether implied representations of different kinds fell within the hearsay rule. See eg. Weinberg "Implied Assertions and the Score of the Hearsay Rule (1973-1974) 9 MULR 268; Marshall "Admissibility of Implied Assertions" (1997) 23 MULR 200; Cross on Evidence (Australian Edition) pars [31035]-[31070]. The intention of the Parliament in the Evidence Act is quite explicit. The Dictionary states in para (a) of the definition of "representation" that it includes "an express or implied representation". 359 If the word "intended" in s59(1) requires some form of specific conscious advertence on the part of the assertor, then very few of the implied assertions considered in the case law and legal literature prior to the Law Reform Commission Report would be included. The fact that the matter is left to implication is generally inconsistent with 'intent' in that sense. The application of s59 to implied assertions would be restricted to cases of deliberate allusion or hints. As Mason CJ said in Walton v The Queen (1988-1989) 166 CLR 283 at 292: "An implied assertion is one which can be inferred or implied from a statement or from conduct, and will generally not be deliberately intended by the author." 360 Nothing in the Law Reform Commission Report or the text of the Evidence Act suggests so restricted an operation for the hearsay rule under that Act. 361 It is arguable that the scope of the word "intended" in s59(1) goes beyond the specific fact subjectively adverted to by the author as being asserted by the words used. It may encompass any fact which is a necessary assumption underlying the fact that the assertor does subjectively advert to. The Court was not addressed on the proper construction of the word "intended" in s59 and it is not necessary to express a final view. 362 Her Honour did not find it necessary to determine the matter, on the alternative basis argued by the Crown i.e. s135 of the Evidence Act. In this Court, the Crown argued that the prejudice to the Crown from admitting such self serving assertions into evidence was such that the only proper exercise of the s135 discretion was the exclusion of the evidence. There are unresolved issues about the scope of s135 upon which the Court was not addressed. (See eg. McHugh J in Papakosmas supra at [91]-[93]). 363 It is not necessary to determine this matter. The issue may arise again at a new trial. The context will not necessarily be the same as the first trial. The identification of the representations in MFI-95 and the issues in the trial to which it is submitted they are relevant, will not necessarily be the same as those addressed in the submissions to this Court. 364 The exercise of a s135 discretion may be determinative in other cases which come to this Court. The standard proposed by the Crown in this case - the only proper exercise of discretion was exclusion - is a high standard which could rarely be met. It is not desirable that cases in which such issues arise be remitted for a new trial on a ground which, when the discretion is exercised for the first time, proves to be futile, because the evidence is excluded. It is preferable if trial judges who hear full argument on such discretionary issues indicate how, if it had been necessary to do so, they would have exercised the discretion. This Court will then be in a better position to decide whether a miscarriage of justice has occurred. FTRA Counts 365 Subject to my analysis in pars [56]-[76] above, of the proposition that the jury could have found that the Appellant admitted to obtaining all the cheques, I agree with the reasons of Studdert J on the FTRA counts. Non-consensual Verdict 366 I agree with the reasons of Dowd J. Unreasonable verdict 367 The Appellant submitted that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of any of the offences (M v The Queen (1994) 181 CLR 487 at 493 and see 525). On this basis it was submitted that the verdict was unreasonable within the meaning of s6(1) of the Criminal Appeal Act 1912. 368 With respect to the insider trading charge the Appellant submitted that the jury ought to have entertained a reasonable doubt with respect to each element of the offence as follows: (i) Whether the Appellant purchased the securities. (ii) Whether the Appellant possessed the Information. (iii) Whether the Information was generally available. (iv) Whether a reasonable person would expect the Information to have a material effect. (v) That the Appellant knew of the matters in (iii) and (iv) above. 369 In the case of the FTRA withdrawal counts the Appellant submitted that the jury ought to have entertained a reasonable doubt about: (i) Whether the Appellant had the prescribed purpose. (ii) Whether the Appellant knew of the reporting requirements. 370 With respect to the FTRA payments count the Appellant submitted that the jury ought to have entertained a reasonable doubt about: (i) Whether the Appellant was a party to each of the particularised transactions. (ii) Whether the Appellant knew of the reporting requirements. 371 With respect to the first element of the insider trading offence - the purchase of the TNT options - the Appellant relied on the fact that the case against him was a circumstantial case and submitted that there was a reasonable and rational inference inconsistent with the Crown case in this respect. 372 The Appellant submitted that it was open to conclude from the evidence that a person other than the Appellant carried out some of the acts which the Crown alleged were carried out by the Appellant using the name "Booth". It relied in this respect on evidence concerning the identification of, and the appearance or accent of, the person who applied for the voicemail system or attended at banks for the purpose of acquiring bank cheques. These issues involved whether or not the person had an English accent, the nature of his haircut and whether or not he was wearing a suit. 373 These are the kinds of matters on which the recollection of witnesses is notoriously unreliable and, in part, is the basis of the warnings frequently given about identification evidence. Indeed the witnesses referred to in this regard on the part of the Appellant included witnesses whose statements and evidence in these very respects varied at different times. 374 The Appellant also relied on a number of other factors such as the coincidence, on the assumption of accuracy as to time in the relevant equipment, between a telephone call made to the "Booth" voicemail service and a call made on the Appellant's mobile phone; that a number of letters sent by Booth were not found on the Appellant's computer; that telephone calls made by "Booth" were not made on the Appellant's phone; and evidence that the letters sent by Booth could not have been printed at the Appellant's home or at Macquarie Bank. In my opinion the cumulative effect of this evidence is slight and does not constitute a basis for a conclusion that a jury ought to have entertained a reasonable doubt about these matters. 375 The slightness of this evidence must be contrasted with the considerable force of the circumstantial case which the Crown presented to the jury. This included the following propositions which it was open to the jury to accept: · Mr Hannes withdrew funds in cash at the times and in the amounts required for the purchase of the bank cheques. · Mr Hannes acquired the cash from a number of banks in different suburbs in what could reasonably be regarded as an attempt to make the process difficult to trace. · Mr Hannes acquired at least a number and, in my view, on his own admission all of the bank cheques, again in amounts and from a range of banks, from which it could reasonably be concluded that he was attempting to make the process difficult to trace. · Mr Hannes' sister's name was Mignon Booth. · A phone call to Ord Minnett was made from his mobile phone on 4 September 1996 (Ex CQ). · Handwriting evidence indicates that some of the handwriting in the name of M Booth was "very probably" or/and "probably" "that of Hannes". · The hard disk of his computer contained traces of the letters to Ord Minnett of 17 September and 3 October and also information about the voicemail. · Notebooks which were seized from his bed and his desk contained indentations which after technical treatment revealed numerous references to the conduct of "Booth" including variations of the "M. Booth", signature suggestive of practising the signature, and such reference as "get bank cheque", "lodge CMT form", "Go to GPO and pay for seven months and get allocated a box", "656 Military" and "Ord Minnett". 376 The Appellant also submitted that the jury ought to have entertained a reasonable doubt about the "possessed information" element of the offence. The Appellant accepted that there was direct evidence which established that the Appellant may have acquired some general knowledge about the TNT transaction, but not necessarily the Information as particularised. The information the Appellant accepted may have been acquired extended to the fact that TNT was a client of MCF which was working on the project codenamed "Tennis"; that work had been conducted on a valuation in an estimated range of between $2.25 and $3.27 per share and that TNT was on the Macquarie Bank embargo list. It was submitted that MCF worked on many large projects, not all of which were take-overs, and it could not be inferred that the Appellant knew that this project was a take-over. It was submitted that evidence of his late night visits did not necessarily compel an inference of knowledge, because there could have been other legitimate purposes for those visits. 377 Nothing in the above statement of the matters upon which the Appellant relies, either alone or cumulatively, has the effect that it is not open to the jury to be satisfied beyond reasonable doubt that the 'possessed information' element of the offence had been made out. Again the force of the Crown's case was considerable. 378 The various elements are not entirely independent in this respect. Accordingly, the finding, which the jury plainly made, that the Appellant purchased the securities using the false name of "Booth" - the first element of the offence considered above - is itself of significance with respect to the element of 'possessed information'. The purchase of an option a short time from maturity at a strike price significantly higher than the then current market price, is of itself a circumstantial fact relevant to the inference as to whether or not the purchaser possessed insider information. It is not, of course, determinative and, in the case of a person with a known disposition for taking high risks, may not even be of significance. It is however relevant. 379 In any event amongst the various facts identified in the circumstantial basis, a finding beyond reasonable doubt with respect the 'possessed information' element was plainly open on the basis of the following: · Mr Hannes made a number of late night visits to the offices when he was on leave (e.g. Sunday night 8 September 1996 at 9.30pm - immediately before which he phoned his own telephone extension and that of David Poole). · Accessibility of the internal MCF documentation in or on the desks of persons working on the project. · A direct conversation with one of the persons working on the project inquiring as to the valuation of TNT. · References to the substantial size of the transaction by reference to the fees expected to be earned, at the Mount Bulla resort meeting. · References to the transaction at the 22 July meeting at the Imperial Restaurant. · The statement made to Mr Moss, that the Appellant knew that MCF was working on a "possible acquisition of TNT". · References in the Record of Interview that the Appellant knew that work was being conducted for TNT. 380 The Appellant also submitted that it was not open to a jury to find that the information was not generally available. In this regard the Appellant relied on the fact that other persons were buying the same securities at the same time, presumably without insider information, and at the relevant time brokers' research reports and newspaper articles were openly discussing the possibility of a take-over of TNT and that some valuations had valued TNT in excess of $2. The Appellant's expert had given evidence that a take-over prospect was already reflected in the share price. 381 In my opinion, the evidence relied on could not have created a basis for an hypothesis consistent with innocence. There was no evidence of any character that the whole of the "Information" as particularised was generally available. Specifically, the matter contained in the last sentence of the particulars i.e. that MCF had been retained by TNT to advise it in this regard, and that TNT shares had been placed on an internal embargo list, was an important part of the information as particularised. It meant that the whole of the information travelled well beyond speculation, or even informed assessment, of the vulnerability of TNT to take-over. 382 Furthermore, the stockbroker reports and newspaper articles relied upon were, as I have said above, of a qualitatively different character to the matter particularised in the first two sentences of the the particularised "Information" which referred to a prospect that TNT "would be the subject of a take-over" and that the offer "would be at a price in excess of $2 per share". This went well beyond informed analysis of the vulnerability of TNT to a take-over. The brokers' valuations in excess of $2 per share were of a different quality to the information particularised which concerned the likely price of a prospective take-over, rather than a valuation based, as such valuations must be based, on information of varying and often unknown reliability, employing a diversity of valuation techniques. 383 Furthermore, the evidence established that significant steps had been taken to ensure the confidentiality of the material internal to MCF, being the documentation upon which, in part, the statement in the particulars was based. There was also evidence from Mr Smith, about the lack of knowledge of a take-over. His expertise to express the opinion was a matter of weight for the jury. 384 The Appellant directed criticism to the fact that, on occasions, Mr Smith was responding to a question directed to whether or not a take-over was "on foot". This may not have been precisely in accordance with the particulars as provided, but it was relevant to the issue raised by the particulars. The extent to which the jury gave it weight was a matter for the jury. 385 The same was true of the evidence, not all favourable to the Appellant, given by the expert it called on the issue of general availability. Again it was a question of weight for the jury. Nothing in the content of Mr Rhead's expert evidence was of such a character or of such force as to require a jury to have a reasonable doubt about the issue of 'general availability'. The jury was entitled to reject the whole of Mr Rhead's expert evidence. It was a matter for them. 386 The issue of 'general availability' overlaps with the issue of 'materiality'. The evidence of brokers' reports and newspaper articles about TNT's vulnerability to take-over and the accompanying valuations were, arguably, of a greater degree of relevance to the issue of 'materiality' than they were, in my opinion, to the issue of 'general availability'. If a significant level of probability of a take-over had already been factored into the share price, then that may have made a difference. Nothing of that character is suggested by the brokers' reports and newspaper articles in this case. The evidence of the experts as to what would be expected in the case of information of this character was there for the jury to assess. Nothing in the evidence of Mr Rhead on 'materiality' was of such force or of such character that it would compel the jury to accept it and accordingly have a reasonable doubt. The issues were plainly before the jury. 387 The Appellant also submitted that the jury ought to have entertained a reasonable doubt about whether the Crown had established the mental element of the offence. In this regard he relied significantly on what he said was a reasonable doubt as to whether or not the Appellant was "Booth". This is a matter I have already discussed with respect to the first element. The Crown case in this respect was compelling. 388 None of the matters referred to were of a character that the jury should have assessed to constitute a reasonable doubt about whether the mental element of the offence was made out. The written submissions filed on behalf of the Appellant referred to other hypotheses which may be consistent with innocence in the sense that they do not involve knowledge of the information as particularised. Reference was made to the possibility of an attempt to avoid income tax or an attempt to circumvent the Macquarie Bank embargo list generally but not linked to TNT and the information in particular. The latter I find difficult to understand. The former was not a hypothesis that the Crown needed to exclude. It was no more than a speculative possibility with no foundation in the evidence. New Trial or Acquittal 389 Where this Court determines that an appeal should be allowed, the Court is obliged to quash the conviction and direct a judgment and verdict of acquittal "subject to the special provisions of this Act" (s6(2) of the Criminal Appeal Act 1912). One such special provision is s8 which provides that the Court may order a new trial where: "… having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make." 390 The Appellant submitted that the Court should not order a new trial. He asserted that the Crown case was not sufficiently strong to justify such an order and the jury had indicated that the Crown case was a weak one, as shown both by the length of time for which it deliberated and also by its message, on one occasion, that it was unable to reach a unanimous verdict. 391 For the reasons I have outlined above with respect to the Appellant's submissions that the verdict was unreasonable, in my opinion the Crown case was a strong one. Furthermore, no inference of the character submitted is available from the length of the jury's deliberations nor its failure, at one point in its deliberations, to reach a unanimous verdict. This was a long and complex trial involving a number of distinct matters which were not without their difficulty. The only inference I would draw from the length of time the jury took in its deliberations was that this was a jury that carefully reviewed the whole of the evidence. 392 Reference was also made to the fact that, as at the date of the appeal, the Appellant had only three months before he can be released on recognisance. The length of the delay in this Court was, as indicated above, almost entirely due to the Appellant himself, particularly in obtaining counsel of his choice. In my opinion, the strength of the Crown case and the public interest involved in the prosecution of this offence was such that the proper order to make is for a new trial, leaving it to the prosecution to decide whether or not, in the exercise of its discretion, it will pursue the matter in circumstances where the likely additional penalty to be imposed on a further conviction, will be short. (C/f Spies v The Queen (2000) 74 ALJR 1263 at [103]-[104]). 393 The custodial part of the FTRA counts has been served. The public policy, reflected in the statutory offences, may be well served by enforcing the fine. Again this is a matter best determined by the prosecuting authorities. 394 I would still have ordered a new trial, even if the Crown case was not as strong as I have indicated, in my opinion, it is. Insider trading offences, and the particular kind of offence under the Financial Transactions Reports Act are extremely difficult to detect. The issue of general deterrence is of great significance when it comes to sentencing. In the case of most white collar crimes of this character, the conviction is a very important part of the punishment. (See Spies supra at [103]). 395 The determination of whether a new indictment should be presented in view of the short additional sentence likely to be imposed, is a matter for the prosecution authorities. 396 The orders I propose are: 1 Appeal allowed. 2 Convictions quashed. 3 There be a new trial on all counts. 4 Crown appeal dismissed. 397 STUDDERT J: I agree with the orders proposed by the Chief Justice. I have had the advantage of reading the judgment of the Chief Justice in draft form and in general I agree with what the Chief Justice has written. 398 I also agree with the conclusions reached by Dowd J on the issues addressed in his Honour's judgment, which again I have seen in draft form. 399 I do however wish to state my reasons for the decision I have reached concerning the grounds of appeal directed to the second and third counts, and also for what I perceive to be the correctness of the decision of the trial judge to exclude from evidence mfi: 95. Counts 2 and 3 400 The notice of appeal expresses three grounds of appeal directed specifically at these counts, but the challenge was more discretely defined in the course of the submissions. The appellant contends that the summing up was deficient in the manner in which both counts were addressed. 401 Each of the second and the third counts charged the appellant with offences under s 31 of the Financial Transaction Reports Act 1988. Section 31 of that Act provides: "(1) A person commits an offence against this section if: (a) the person is a party to 2 or more non-reportable cash transactions; and (b) having regard to: (i) the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following: (A) the value of the currency involved in each transaction; (B) the aggregated value of the transactions; (C) the period of time over which the transactions took place; (D) the interval of time between any of the transactions; (E) the locations at which the transactions took place; and (ii) any explanation made by the person as to the manner or form in which the transactions were conducted; it would be reasonable to conclude that the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that: (iii) would not give rise to a significant cash transaction; or (iv) would give rise to exempt cash transactions." 402 Section 3 defines "non reportable cash transaction" as meaning "a cash transaction: (a) to which a cash dealer is a party; and (b) that is not a significant cash transaction…" 403 "Cash dealer" is defined in s 3 as including "a financial institution" which, in turn, is defined as including "a bank". 404 A "significant cash transaction" is defined in s 3 as meaning "a cash transaction involving the transfer of currency of not less than $10,000 in value." 405 Section 7 requires a bank which is party to a cash transaction involving not less than $10,000 to report such transaction to the Director of Austrac. 406 The second count charged the appellant with being "a party to two or more non reportable transactions", as defined under the above statute, "and having regard to the manner and form in which those transactions were conducted, it would be reasonable to conclude that he conducted those transactions in that manner and form for the dominant purpose of ensuring that the currency involved in those transactions was transferred in a manner and form that would not give rise to a significant cash transaction..." 407 The indictment particularised the non reportable cash transactions as being six withdrawals of cash effected on 9 September 1996 from a particular account of the appellant with the Commonwealth Bank. The withdrawals were particularised as having been effected from six different branches, four of the withdrawals being in the sum of $9000, one in the sum of $9900, and the remaining one being in the sum of $6000. 408 The third count charged the appellant with being "a party to two or more non reportable cash transactions", and was framed in terms similar to the second count, but in respect of this count the particulars of the non reportable cash transactions related to payments of cash in order to obtain bank cheques payable to "Perpetual Trustee Co. Limited - Ord Minnett Cash Management Trust". This count particularised nine transactions, again effected on 9 September 1996. The payments of cash were allegedly made to, and the bank cheques were allegedly obtained from, nine bank branches, none of which was a branch from which a withdrawal particularised in the second count was allegedly effected. The appellant allegedly made payments ranging between $9000 and $9010 for the nine bank cheques. Three of these cheques were obtained from branches of the Commonwealth Bank, two from branches of the ANZ Bank, two from branches of the National Bank and two from branches of Westpac. 409 The case for the Crown proceeded throughout the hearing upon the basis that the withdrawal count, being the second count, and the payment count, being the third count, addressed six and nine transactions respectively. All fifteen transactions, that is the six withdrawals and the nine cash transactions, occurred on the same day. This was after the appellant had made three withdrawals on 6 September 1996 in amounts of $20,000, $10,000 and $10,000. When withdrawing the $20,000, according to a bank officer, Mr Bullock, the appellant signed a form which included the statement: "This report is to be completed by a cash dealer in respect of a transaction of $10,000 or more and a copy forwarded to the Director, Cash Transactions Report." 410 The Crown relied upon this document as establishing that the appellant had been made aware of the requirement of the Financial Transaction Reports Act before entering into any of the transactions to which counts two and three related. That, save for the withdrawal of $6000 being the last of the withdrawals on 9 September 1996, the remaining transactions were all for amounts of just under $10,000 was a matter upon which the Crown relied on both counts in relation to the elements arising under s 31(1)(b) of the statute. 411 The Crown put its case to the jury under the second count upon the basis that the appellant made each of the six withdrawals, and, indeed, there was no dispute at the trial that the appellant made all the relevant withdrawals. This was admitted in the appellant's submissions in this Court. The contentious issues under the second count arose under s 31(1)(b). The Crown's contention was that the nine cheques the subject of the third count were sent to and received by Ord Minnett on 9 September 1996 under cover of a letter requesting their deposit in the cash management trust account in the name of "M. Booth, Suite 140, 656 Military Road, Mosman, Investor No. B3133". The Crown's further contention, of course, was that the appellant was "M. Booth". 412 There was evidence led in relation to all the particularised transactions, and charts and diagrams were provided to the jury seeking to establish the appellant's participation in all the particularised transactions. 413 Whilst the Crown sought to establish that the appellant was a party to each of the "non reportable cash transactions" particularised in both counts, the jury was ultimately directed that it would suffice for the Crown to prove that the appellant was a party to two or more of such transactions. It is necessary to consider the course of the directions given to the jury. 414 In the course of her summing up (AB 2088) her Honour instructed the jury on the second count, after reminding the jury of the evidence concerning the transactions: "…and all are cash transactions, and taking place at different braches of the Commonwealth Bank of Australia. So far as these transactions are concerned, all of the withdrawals were made on the account of Mr Hannes at the Commonwealth Bank of Australia, his account was at the Wynyard Branch… In any event that is the evidence in relation to those transactions upon which the Crown relies for the commission of the offence, and in relation to those withdrawals there is no dispute the money was drawn from Mr Hannes' account, and there is no dispute that he in fact withdrew the money in respect of each of those transactions. Now in relation to those withdrawals they were dealt with in his record of interview, he admits that he withdrew the cash, the subject of the withdrawals on 9 September 1996 from the Commonwealth Bank of Australia at various branches, and so far as that part of the offence - that is in the second charge in the indictment - so far as that part of the offence is concerned that is the actual non reportable, his entering into two or more non reportable transactions, the evidence is that he did those transactions at a bank, so it would, I suggest, not cause you any problem in coming to a view that those transactions being non reportable transactions and that there are more than two of them, and that they were entered into by Mr Hannes." 415 Turning to the third count, her Honour instructed the jury (AB 2091), after reviewing the Crown case as to the various payments: "Mr Hannes admits that he obtained some of these bank cheques, but not all of them, so that is the first thing that I must tell you about those transactions which involved the person who is proceeding to obtain the bank cheque. In each case you have heard evidence as to the manner in which the bank cheque was obtained, the production of money, cash, so that there is no dispute that these were cash transactions, but the issue is whether each of these cheques, whether they were in fact obtained by the accused Mr Hannes and you have heard evidence from the bank officers who came along and told you about the transactions…" 416 Then later (AB 2096): "The cheques that are relied upon by the Crown in relation to the third charge in the indictment, those cheques total $90,900 and all of them were deposited with the Ord Minnett Cash Management Trust Account in the name of Mark Booth, with investor account number B3133. So far as this charge is concerned - I have told you what the defence that the - what the defence has had to say in relation to some of these, that it puts in issue some of the transactions which are particularised in charge 3. So members of the jury, you have to be satisfied beyond reasonable doubt that the accused Mr Hannes was the person who entered into the transactions, that is each of the nine transactions which are particularised in the indictment. The Crown case is that Mr Hannes purchased those cheques, using a false name, that is the name of M. Booth and again you will need to be satisfied by the Crown that the person referred to as Mr Booth is in fact Mr Hannes." 417 Her Honour then went on to give the jury some directions concerning both the second and the third counts as to the requirements of s 31(1)(b). 418 Subsequently, however, on the submission of the Crown and contrary to the submission advanced for the appellant, the judge redirected the jury on the third count (AB 2118): "So far as the third charge is concerned, that is the third charge in the indictment, that is the charge that deals with the bank cheques. Contrary to what I said yesterday that you needed to be satisfied in respect to each of the bank cheques, were transactions made by the accused, I direct you as follows, that you do not have to be satisfied that all the bank cheques particularised by the Crown in the indictment with respect to this charge, were obtained by Mr Hannes. It is sufficient for the offence to be committed that you are satisfied beyond reasonable doubt that Mr Hannes obtained two or more of those bank cheques particularised in the charge . The Crown relies on all nine in its case, but you only have to be satisfied that Mr Hannes obtained two or more of them for the offence to have been committed. That goes to that aspect of the charge… So for the purposes of this offence, that is the charge 3, the number of transactions relied upon by the Crown is 9 and the aggregate value of those transactions is 81,900 but you only need to be satisfied beyond reasonable doubt in respect of two or more transactions for the offence in charge 3 to have been committed." (Emphasis added) 419 Her Honour then returned to the second count and gave the following direction in relation to it (AB 2119): "Turning to the charge in count 2 of the indictment, the Crown relies on six transactions, they are the cash withdrawals, but it is sufficient for the offence to have been committed if you are satisfied beyond reasonable doubt that two or more non-reportable transactions were made by Mr Hannes…" (Emphasis added) 420 Earlier the jury had been given a direction in standard form as to the need for unanimity (AB 2013): "We do not, in this State, recognise majority verdicts. That is not to say that each of you must agree upon the same reasons for your verdicts. You may individually rely upon different parts of the evidence, or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decisions, the final decision of either guilty or not guilty in relation to each charge, must be the decision of all of you, unanimously, before it can become your verdict." 421 However the jury, having been instructed that the appellant could be convicted if the jury was satisfied on each of the second and the third counts of the necessary elements in respect of "two or more cash transactions", was not instructed of the need for unanimity in findings in respect of the same transactions. The absence of any such instruction is relied upon as a ground of appeal in respect of both the second and the third counts, and indeed this absence was of the essence of the appeal on these two counts. As Senior Counsel expressed it in oral submissions: "The vice in the case in the end is that the jury were not told that they all must agree on which transactions satisfied the test." 422 KBT v The Queen (1996-97) 191 CLR 417 is in point. This case concerned the prosecution of an alleged offender under the Queensland Criminal Code for maintaining an unlawful relationship of a sexual nature with a child under the age of sixteen years. This required proof of the commission of acts of a particular kind on three or more occasions. The complainant gave evidence at the trial of various incidents which involved acts committed by the accused. The judge directed the jury that in order to convict the accused the jury must be satisfied beyond reasonable doubt that on at least three occasions within the period charged the accused had, for instance, unlawfully and indecently dealt with the child. However the jury was not instructed that it had to be unanimous in finding that the accused had done the same three acts. The High Court held that the conviction should be quashed. In their joint judgment Brennan CJ, Toohey, Gaudron and Gummow JJ said at 424: "Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts (See S v The Queen (1989) 168 CLR 266 at 287-288, where this problem was considered in relation to the application of the proviso to s 689(1) of the Criminal Code (WA), a provision not materially different from s 668E(1A) of the Code). Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open." 423 It was submitted that the way these two counts were left to the jury it was possible that the individual members of the jury did not base their finding of guilt upon precisely the same transactions, so that it was possible that the verdicts announced on the second and the third counts were not strictly unanimous. 424 The Crown sought to meet this submission in several ways. 425 Firstly, reliance was placed upon a later direction in the summing up (AB 2208-2209): "You will recall that I directed you yesterday that you only have to be satisfied in respect of two transactions and this applies to both counts. If you are satisfied that there were - in respect of each of the offences, that is the charges in two and three, if you are satisfied, beyond reasonable doubt, that the accused, Mr Hannes, entered into two or more transactions, then that is sufficient for the purposes of the commission of the offence, but in making your assessment, as to whether or not the transactions were done in a manner and form for the sole or dominant purpose of avoiding the provisions of the Financial Transactions Act you would only take into account those ones that you are satisfied were entered into by Mr Hannes, so I direct you that that is the way that you should approach the assessment, in other words, you firstly must be satisfied that he entered into two or more transactions and then, having made that determination, you only take into account, in that assessment, those ones which you have reached the determination that they were entered into by the accused, Mr Hannes." 426 The above direction, however, failed to alert the jury to the need for unanimity on the two transactions selected, and it did not address the problem identified in KBT (supra). 427 The Crown next submitted that this was, on a proper analysis, an "all or nothing" case, in the sense that there was no room for proof that the appellant was party to some but not all the transactions, or for a different conclusion to be reached for the purposes of s 31(1)(b) for some but not all the transactions. Hence, it was argued that the proviso to s 6 of the Criminal Appeal Act should be applied. 428 This submission calls for separate consideration of the second and the third counts. 429 As to the second count, as was earlier observed, there was no issue but that the appellant made all the withdrawals. Hence s 31(1)(a) was satisfied for all six withdrawals. 430 Turning to s 31(1)(b), the appellant gave the same explanation for the making of all the withdrawals when interviewed by ASC investigators. The Crown, of course, relied upon the admissions made in the course of the appellant's explanation for the withdrawals. This explanation appears at pp 24-25 of the record of interview (AB 3748-3749). Summarising what the appellant there said, it was to this effect: (i) That he went to the Roseville branch of the CBA to make a cash withdrawal of $100,000 and was informed that that branch did not even have $10,000 on the premises. (ii) That he then did what was suggested by the bank officer at Roseville and rang the Commonwealth Bank at Wynyard where he was told that advance notice would be required to obtain such a large amount of cash, "something like two weeks notice." The appellant was advised by the bank officer at Wynyard that he would have to go to a whole series of branches to get that amount of money out in cash. 431 The withdrawals of cash to which the second count related began with a withdrawal of $9900 at 10.49 am on 9 September 1996 and concluded with a withdrawal of $6000 at 3.34 pm that same day. The other four withdrawals were of $9000 each. 432 Of the six withdrawals to which Count 2 related, the only withdrawal attracting a separate submission in the way in which the appellant's case was put to the jury by counsel then appearing for the appellant was the withdrawal of $6000. In respect of that withdrawal counsel is recorded as having said to the jury (AB 1876): "And we ask this question, what is it about the $6000 withdrawal, which is the last withdrawal itemised in that count, what is it about that withdrawal that shows that it was made for the sole and dominant purpose of ensuring or attempting to ensure that the currency in the transactions was transferred in a manner and form that would not give rise to a significant cash transaction. Why is not the conclusion to be drawn that that withdrawal concerning the $6000 was the last sum of money to be withdrawn?" 433 When one considers the matters to be addressed by s 31(1)(b)(i) and (ii), no rational basis suggests itself for distinguishing any one of the five withdrawals ranging from $9900 at 10.49 am on 9 September down to the withdrawal of $9000 at 12.08 pm that same day. 434 The summing up was deficient in failing to alert the jury to the need to be satisfied beyond reasonable doubt in respect of the same two or more transactions, but so far as the second count is concerned this omission from the summing up involved no possibility of a miscarriage of justice. 435 Nor was there other deficiency in the summing up such as may have caused the trial on the second count to miscarry. The instruction which the jury was otherwise given as to the elements of the offence charged under the second count was adequate. The summing up provided sufficient instruction on the elements of s 31 and reviewed in detail the evidence concerning the relevant withdrawals. The jury was reminded that there was "no dispute that [the appellant] withdrew the money in respect of each of these transactions" (AB 2088). The jury was instructed as to the need to consider the manner and form of the transactions (AB 2097) and the appellant's explanation for what he did (AB 2099). The jury was reminded too of what the appellant told Mr Moss by way of accounting for the series of withdrawals. The jury was properly directed to consider whether it would be reasonable to reach the conclusion addressed in the language of s 31(1)(b), and was given instructions on the mental element of the offence, and told of the requirement to be satisfied of it beyond reasonable doubt (AB 2106). The jury was reminded in considerable detail of the submissions of counsel. 436 For the above reasons, I would not have found that there was any miscarriage of justice because of the manner in which the jury was directed on the second count. However there must be a new trial on this count because of the Weissensteiner direction given to the jury, for the reasons expressed in the judgment of the Chief Justice. 437 Turning to the third count, and addressing the requirements of s 31(1)(a), the appellant did not discretely admit his participation in all these transactions. The prosecution case was, of course, here dependent upon establishing that the appellant was "M. Booth". 438 The appellant was questioned at the ACS interview on 17 January 1997 about the transactions which resulted in the receipt of the cheques by Ord Minnett on 9 September 1996. What the appellant said at the interview directly concerned six of the transactions: (i) Asked about the transactions in respect of the bank cheque drawn at the Camperdown branch of the ANZ Bank, the appellant said (AB 3782): "He [in context presumably referring to his alleged fellow investor] then told me he wanted cheques, he needed cheques made out to Perpetual Trustee, Ord Minnett Cash Management Trust and I obtained those cheques. I withdrew that cash and I obtained those cheques and then I gave that to him." The questioning then proceeded: "Q. How about I just show you documents - A. Okay. What I don't specifically know is whether that's the cheque obviously. Q. Well, I can help you there, because if that's the handwriting - A. If you tell me that's the cheque then that's probably the cheque ." (Emphasis added) (ii) Asked about the bank cheque application in the name of "M. Booth" at the ANZ bank at Leichhardt, the appellant said the handwriting on the application "could be mine", and later said (AB 3784): "If I made applications for bank cheques, I got them made out to the Perpetual Trustee Company and I got them made out - I wanted the money to be invested in my sister's name, Mignon Booth…" (iii) When shown the bank cheque application for the NAB bank at Leichhardt, the appellant said some of the handwriting on the document "could be mine" and "may well be mine" . He was then asked this question and gave this answer (AB 3785): "Q. Yes, but who else could it be apart from you, the signature 'M. Booth'? A. I'm not - let me be clear here. This is probably the sort of thing I shouldn't get into, but I am not denying that I went and got cheques, right, in these amounts and, as I say; it was to be in the name of my sister Mignon Booth. I am not denying that." (iv) Shown the application for the bank cheque completed at the NAB, Roseville, the appellant's attention was drawn to the signature "M. Booth" and these questions and answers followed (AB 3786): "Q. Did you write that? A. That may well have - I - Q. There is a subsequent bank cheque. I show you a - A. You say that is a signature; I am writing my sister's name - I don't - I didn't purport that to be a signature of my writing, her signature. Q. Did you write those words or those letters that comprise the words 'M. Booth' on these application forms I have shown you? A. If they asked me to - in some circumstances I might and some they - I may not have…" (v) When shown the application for a bank cheque for Westpac, Roseville and upon having his attention drawn to the signature "M. Booth", he said "that may well be in my handwriting" (AB 3787). (vi) The appellant was shown a signature on the application for a bank cheque at Westpac, Annandale. He responded (AB 3792) "I may or may not have done it" . He was specifically asked: "Q. With regard to the signature 'M. Booth', is that yours? A. If they had asked me - if they had asked me what is - you know, in whose names - who is putting this money up front - in whose name - who's putting the money up, I would have said 'Mignon Booth' and if they had asked me to write it I would have written 'M. Booth'. So that is possibly Annandale." (vii) The remaining three cheques were cheques from the CBA. On interview, the appellant was questioned relevantly as follows (AB 3787-3788): "Q. I do not have bank application forms for banks at the Commonwealth, but the amounts of these cheques correlate to the withdrawals? A. Mmm-hmm; that's quite possible. Q. Now, these are different - did you go to - did you make withdrawals from a Commonwealth Bank and take the money to a different Commonwealth Bank to buy a bank cheque? A. I - I must have - at least - I don't know is the answer to that. I don't - you know, you're asking - I obviously - the only place in which I have money is the Commonwealth Bank, so I must have withdrawn from the Commonwealth. The precise places where I got the cheques I'm not sure but if you tell me they - I have no reason to dispute whatever your records show." 439 To the extent that the responses above reviewed were capable of being regarded as incriminating the appellant in the transactions to which they referred, the probative value of the responses was not necessarily to be regarded as uniform. An individual juror, for example, could have regarded one of the above responses as more incriminating than another. 440 There are other things said by the appellant in the interview however which merit consideration. 441 There was a further response elicited adding to the Crown case in relation to the transaction at the NAB at Leichhardt and which also had more general significance in relation to the second and the third counts. The appellant was shown the photograph Exhibit EE1, taken at the NAB at Leichhardt on 9 September 1996, and was asked whether he could identify the subject. The interview continued with the appellant's response (AB 3801-2): "A. That could be me. Q. If I show you a blow-up of that photograph will it assist you? A. Well, you know, I tell you what, if you tell me that these records indicate I was in this bank and this photograph was taken in this bank, then it's probably me, because it looks a bit like me, doesn't it? Q. I would rather show you a blow-up photograph of that photograph which is barcoded S00034354? A. Well, it's not a great photo, but it could be me, yeah. Q. Does the person in that jacket -- A. Yeah, that's probably me, sorry; look what I'm carrying. Q. Does the person in that jacket - photo appear to be wearing a jacket similar to this? A. Yeah. Q. Is the person in that photo wearing glasses similar to a pair -- A. Yes, yes, yes, yes. Q. Are you telling me that to the best of your recollection you did go to the National Australia Bank, Leichhardt, and make a withdrawal for $9,000 on this day? A. Okay, can I go back one step. I am not and have never sought to deny that I made these withdrawals and from these branches and that if this is a picture that you've got from the branch of me making a withdrawal, that's me. The only - if you detect any hesitation, it's just that you're asking me about a Leichhardt branch and quite frankly I wouldn't know - I don't have a recollection of going into that specific branch in Leichhardt; it could have been somewhere else, I don't know. So I'm not denying the details. It sounds all right, yeah." 442 There were other responses in the interview relevant to the third count. 443 Having informed those conducting the interview that the bank officer had advised him of the necessity to go to the series of banks to make the necessary withdrawals to obtain the cash required, and having said that he proceeded on such advice (AB 3749), the appellant went on: "I met this individual later that day and he then told me that he actually needed the - I didn't have all the cash by that stage; I won't go into the details - but he told me that he needed cheques to put in an Ord Minnett cash management account. This individual, I had told - we had arranged - he had told me that he had - that there was a mail box, there was a mail box, we had a mail box and we were going to have a bank account which was going to be this Ord Minnett bank account. So ultimately I withdrew all this cash and made it out in cheques, as he requested, to this Ord Minnett bank cash management account, or whatever it was. So that's the - you know, the - the reference to all this money being withdrawn and deposited. That's how I contributed my money." 444 The response earlier referred to in relation to the ANZ Camperdown transaction was not seemingly directed to that transaction or to that transaction alone: "I obtained those cheques. I withdrew that cash and I obtained those cheques and then I gave that to him." Then (at AB 3796): "Q. Why did you get a series of bank cheques to the value of $9000 each from different banks? A. What happened was first he initially asked for cash. I met him the day I had - it must have been - it was probably this day, I don't know, because I had withdrawn the cash, it looks like it on there. He then changed his mind and said he wanted bank cheques, right? So then I made out all these bank cheques - got all these bank cheques. Q. Why did you not just make out one bank cheque? A. I honestly don't know, I couldn't - I don't know why I did that. Maybe he said - maybe he said get bank cheques, $9000, I don't know. Maybe I did it off my own bat, I really - I mean I'm not sure." 445 Then (at AB 3797) in the context of questioning about the cash withdrawals and what was alleged with Ord Minnett: "Q. If you take away and ignore the $50,000, the residual withdrawals add up to approximately either 81 or 91 thousand dollars. By coincidence, it's a similar amount that was lodged at Ord Minnett cash management -- A. That's not a coincidence. That is the money." 446 In the course of the summing up, the trial judge told the jury that the appellant admitted to obtaining some but not all of the bank cheques (see para 415 above). Counsel appearing at the trial for the appellant did not complain about what the judge had told the jury notwithstanding what the Crown said, as is recorded at AB 2108: "CROWN PROSECUTOR: …Maybe this is a matter that should be clarified with Mr Robberds but you did say in relation to the cheques 'He admits some but not all'. HER HONOUR: Well that's what I understand was - I've tried my hardest to get that clarified the other day." 447 Notwithstanding the above exchange, counsel for the appellant still did not ask her Honour to give any contrary direction concerning the admission attributed to him. However the judge did not identify which cheques the appellant admitted he obtained, and a reading of the transcript of counsel's address to the jury earlier made does not identify the transactions to which her Honour was referring. 448 The appellant did make some general admissions to Mr Moss about the cheques. Mr Moss gave evidence as to a discussion with the appellant in which the appellant informed him of his involvement in an investment syndicate with a friend. In recounting the discussion with the appellant, Mr Moss said (AB 277): "I said 'Well, some people will find that difficult to believe if you don't name your friend' and he said 'Well, I know that but, you know, my friend is blameless and I really don't want to involve him in this whole thing because he is blameless and it would be unfair to involve him in it', and so then I - then we - the conversation passed to another topic which was a related topic, and I said 'Well, in the search warrant there's reference to you getting cash or bank cheques from a variety of branches' and he said 'Yes' and I said 'Well' - I suppose the conversation perhaps paused a bit and he said 'Well' - maybe, I said 'Why did you do that?' and he said 'Well that's what my friend asked of me, that's what he wanted'. And then he went on to say that he had been given some advice by a bank teller that it was more convenient, that it would be more convenient to get moneys out in amounts of - in a number of amounts rather than one amount because there would be - it would be simpler from a documentation perspective and so that's what he had done... Q. Was anything further said that you can recall in respect of why the amounts were placed in particular denominations? A. Well I think there was a reference to an amount, I think there was a comment of amounts less than $10,000 and that the bank teller had said that that would be - that basically you wouldn't have to fill it as many forms. He said that the cheques, he'd gotten the cheques in the name of and he actually mentioned the name but I didn't quite catch it at the time, but it was a name beginning with M and he said well I got them in those names because that's my sister's name." 449 The evidence incriminating the appellant in the nine transactions with which the third count was concerned was not, of course, limited to the admissions in the ASC interview and to what was said to Mr Moss, and the Crown relied upon the evidence of the handwriting expert in relation to the documents surrounding the issue of the cheques and in relation to the opening of the cash management trust account in the name of "M. Booth". Nevertheless, the jury was required to consider the ASC interview and the extent to which it incriminated the appellant in each of the transactions upon which a finding of guilt in respect of any two or more transactions could be based. 450 At trial the jury was invited to consider evidence which, it was submitted, pointed to the appellant being involved in a syndicate with another investor as was maintained by him in the ASC interview. His counsel also invited the jury to find that the appellant was emotionally distressed at the interview and that such condition impacted upon the reliability of the responses given there. The jury was asked to consider whether the various responses the appellant made ought to be regarded as amounting to admissions. 451 It would have been relevant for the jury to weigh the evidence given by Ms Pollard who was working at the NAB Roseville on 9 September 1996 and who recalled the person identifying himself as "M. Booth" who requested a bank cheque which was paid for in cash. Ms Pollard gave a description of that customer to the police but subsequently, having seen an article in the Telegraph on 3 February 1997 accompanied by a photograph of the appellant, this bank officer informed the police that the person photographed was not the person to whom she had sold the bank cheque. 452 Counsel for the appellant at his trial also drew the jury's attention to the evidence of Ms Cullen. Ms Cullen gave evidence of being a teller at Westpac at Annandale who was involved in the provision of the bank cheque from that bank on 9 September 1996. The witness remembered the transaction because the cheque was drawn in favour of Ord Minnett and the witness was aware of its association with Westpac. Ms Cullen described the customer as wearing a dark suit with a collar and tie. If this was a reliable description of the person who attended Westpac at Annandale, the way the customer was dressed was different from the way the customer captured on photo EE1 was dressed when, on the same day, the bank cheque had been obtained at the NAB at Leichhardt. The jury was invited to infer from this that different persons obtained the cheques from Westpac and NAB. 453 Notwithstanding the submissions advanced at trial for the appellant as to the cheque transactions, a matter of particular significance when considering the sufficiency of the directions in the summing up is that in all but two of the cheque transactions, being the cheques from the Commonwealth Bank branches at Camperdown and Leichhardt, the documentary evidence established the acquisition of the cheques in the name of "M. Booth", with the address given as "Suite 140, 65 Military Road, Mosman 2088". 454 In the course of the summing up, her Honour directed the jury many times, including in the context of considering counts two and three, that it had to be satisfied beyond reasonable doubt that Hannes was Booth. For seven of the nine cheque transactions the undisputed evidence established the acquisition of the cheques in the name "M. Booth" at the address set out above. Hence, consistently with her Honour's directions, in relation to Count 3, the jury could only find the appellant was a party to those seven cheque transactions upon being satisfied beyond reasonable doubt that the appellant was Booth. This being so, there was no need for a specific direction that the jury had to be unanimous in their finding as to the same transactions. The direction that the jury had to be satisfied beyond reasonable doubt that Hannes was Booth was in substance equivalent to a direction that in relation to those seven cheques they had to unanimously agree that the appellant entered into the transaction. On this analysis, a KBT direction was not required. 455 Turning to s 31(1)(b), there was no rational basis upon which a jury could distinguish between one or other of the nine particularised transactions if considering the appellant's explanation for obtaining any cheque. The Crown relied upon the answers which the appellant gave in the interview: see earlier the reference to what was said at AB 3749-3750 (para 443 above). 456 Also AB 3805-3806: "Q. Can you explain why each cheque - each bank cheque was obtained under the amount of $10,000? A. I see what you're asking me. You're not asking me for the withdrawals, you are asking me for the cheques. Q. Yes? A. Well, you're pushing me. I can't quite recall. I mean it might have been - I mean, I really don't know why I did it that way. I mean, admittedly what I would have had if I'd made withdrawals in $10,000 notes, I'd probably - $9000 lots - I probably would have put $9000 in an envelope and given it to the person and asked him for a cheque." 457 Then there was the explanation given to Mr Moss referred to at para 448 above. 458 For the above reasons, there was no misdirection on the third count in that part of the summing up here considered. However the Weissensteiner direction requires that there be a new trial on this count also. The rejection of mfi: 95 459 The appellant sought, unsuccessfully, to tender a document with the following content: "SHOULD I VISIT ASC OR NOT CONS Reveal Macquarie wrongdoing (breach of Chinese walls, cover up) MBL will grab my $1m DRP as penalty Mark not guilty of insider trading but may have committed other offences - minor tax avoidance? - share trading if he has used Mignon's name He may not be telling the truth (saw something on visit to MBL?) but contra agreed to give monies back) Destroy other reputations eg. Mortimer Embarrass Mig - feel object of charity PROS Right thing to do Only way to establish that I am innocent Have done nothing wrong Am confident I have full story after my conversations with Mark in London But must take Mark with me to ASC otherwise - will not be believed - how can you prove a negative ie. that I did - not give him any insider information - not buy options - not open Ords CMT etc VITAL MARK BE THERE!!! WHAT IF HE DOES NOT GET HERE BY FEB Read riot act! WRITE" 460 The handwriting expert, Mr Westwood, examined a number of notepads seized from the appellant's residence upon the execution of a search warrant on 17 January 1997. Mr Westwood analysed both handwriting and indentations made on pages in the notepads. Using a device known as electrostatic detection apparatus (ESDA) he was able to develop an image of what may have been indented into a page by the act of writing. What the ESDA does is to produce a transparency. MFI:95 was a document produced by this process. Mr Westwood's evidence was that the indentations he analysed (and these included mfi:95) were probably produced by the writer of the known control documents and the control documents. On the Crown case, such documents were written by the appellant. 461 The appellant did not concede that the writing on the document was his but, of course, if the jury accepted the evidence of Mr Westwood, his evidence would have supported a finding that the relevant writing was that of the appellant. Because the notepad in which the indentations from which the document was developed was seized on 17 January 1997, the writing must have been placed in the pad no later than that date. The writing refers to conversations in London and the evidence was that the appellant left Sydney for the United Kingdom on 14 November 1996, so that it was appropriate for her Honour, as invited to do by counsel, to consider the tender upon the basis that the words were written no earlier than 14 November 1996 and no later than 17 January 1997. 462 The tender of this document was the subject of extensive submissions at the trial before the trial judge ruled the document inadmissible. That there was such a ruling is recorded in the trial transcript (AB 1672) and the transcript later records (AB 1709a): "I am in a position to give my ruling but not to give my reasons although I have got them in draft form. My ruling is that the document sought to be tendered, that is the document which is part of mfi:95, that it is not admissible, that I reject each of the bases which were put forward on behalf of the contention that it is admissible and it follows that I did not need to consider the question of my exercising my discretion under s 135 of the Evidence Act." 463 The detailed reasons for her Honour's ruling have not been available on the hearing of this appeal, so that this Court does not have the advantage of knowing how her Honour came to the conclusions expressed. 464 It is the appellant's contention that the rejection of this evidence led to a miscarriage of justice. 465 In order to become admissible, it was necessary that the evidence satisfy the relevance test in s 55 of the Evidence Act and also that it avoided exclusion under the hearsay rule. 466 Section 55 defines relevant evidence: "55. (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence." 467 The appellant has submitted that the document was relevant as providing evidence as to the existence of a syndicate partner "Mark" and to contradict a central assertion in the Crown case that the appellant and Mark Booth were one and the same person. 468 Do the representations contained in the document as to the existence of Mark and as to his activities meet the relevance test found in s 55(1), bearing in mind that the appellant placed the writing in the pad at a time when, as the content of the document and other evidence in the case makes clear, the appellant was aware of the ASC investigations into the option transactions? 469 Had the document been placed before the jury, it would have afforded evidence as to what the appellant had written but could it rationally have been regarded as probative of the assertions made? In Papakosmas v The Queen (1999) 196 CLR 297, a case concerning the admissibility of complaint evidence as to a sexual assault, Gaudron and Kirby JJ said at para 52: "52 What does emerge from the common law as a reflection of elementary logic is that, without more, evidence that a particular statement was made is probative only of its making and its contents and those inferences which, in the circumstances, may be drawn. On the other hand, it also emerges from the common law, and, again, as a matter of logic, that the circumstances in which a statement is made may sometimes render it probative of the facts asserted…" 470 And then paras 56-58: "56 The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved. Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true. Similarly, a statement that is closely contemporaneous with the fact in issue and is contrary to what would ordinarily be expected if that fact were true rationally bears on the improbability of its having occurred. 57 The question whether, in the particular circumstances, a statement that is not closely contemporaneous (for example, a subsequent statement to police) is probative of the facts asserted in it can logically only be answered in a case in which those circumstances arise. However, there must be some connecting circumstances because, otherwise, evidence that a particular statement was made is probative only of its making and its contents and such inferences as, in the circumstances, may be properly drawn. 58 As a matter of logic, the statement is not, as such, proof of the facts asserted. People do make false statements of fact and false accusations. Nothing in the Act requires the admission of a statement unless, in the terms of s 55, it could rationally affect, directly or indirectly, the assessment of the probability of the facts asserted. There has to be more than the fact that the statement is made to produce the conclusion required by s 55 as the price of admissibility. Rationality connotes logical reasoning." 471 The considerations identified by their Honours in the above passage are in point in the present context. 472 It was submitted for the appellant that the appropriate inference to be drawn was that the document was not fabricated for a self-serving purpose and that it could therefore be regarded as reliable. Further, it was submitted that the fact that the sheet of paper on which the writing appeared was torn from the book refuted any suggestion that might otherwise have been made that the writing was placed on the paper for a self-serving purpose. 473 That the paper was subsequently torn out of the book does not bear upon the intention with which the writing was made. The writer may well have changed his mind as to the usefulness of the document. As the Crown submitted, the appellant may have written what appeared in the document for the purpose of outlining matters that he intended to advance to the ASC to further his own interests on an anticipated interview. There is nothing in the document which is contrary to the appellant's interests; the content is capable of being regarded as essentially self-serving. 474 Absent evidence as to the circumstances in which, or the reasons for which, the appellant wrote what he wrote, the document was not probative of the assertions made in it and which prompted its tender. It did not pass the test of relevance contained in s 55. 475 Even if the evidence was to be viewed as meeting the requirements of s 55, it nevertheless faced exclusion under s 59: "59. (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact." 476 It is the appellant's contention that the document evidenced unintended assertions, made by implication, to the following effect: (i) that a person using the name Mark existed; (ii) that the appellant met this person in London in connection with the relevant events; (iii) that the appellant did not acquire the options. 477 The definition of "representation" contained in the dictionary to the Evidence Act includes "a representation not intended by its maker to be communicated to or seen by another person", and the word is to be given this extended meaning in s 59. Prima facie, the appellant intended to write what appears in mfi:95 at the time he wrote it. Absent evidence to the contrary, it could not be inferred that the appellant did not intend to assert by what he wrote the very matters which the appellant contends emerged from a reading of the document. 478 Had the document otherwise been admissible under s 55, it did not pass the hearsay test imposed by s 59. 479 A further basis advanced on the appellant's behalf for the admissibility of this evidence was that the document afforded evidence of the appellant's state of mind and intentions, in particular in relation to dealings with "M. Booth" and visiting the ASC. Section 72 of the Evidence Act provides for an exception to the hearsay rule in relation to contemporaneous statements inter alia about intention: "72. The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind." 480 The document could not be admitted under s 72 having failed to satisfy the relevance test under s 55. However, the document would not have become admissible under s 72 in any event. Assuming the words "But must take Mark with me to ASC" could be treated as evidence of the appellant's intention as at the time he wrote in the pad, evidence of the appellant's intention at the time of writing did not go to a fact in issue. The appellant was seeking to rely upon the content of the document to prove the existence of Mark Booth and s 72 could not afford a vehicle for this when such content was not admissible under s 59. 481 It was also submitted that the document was admissible because the indentations from which it was developed were in the same book as other indentations developed and tendered by the Crown. Hence, it was argued, that this document was admissible as affording evidence of a previous representation rendered admissible by s 81(2) of the Evidence Act. Once again, of course, the argument depended upon acceptance of the submission that the evidence was relevant. 482 Section 81 provides: "81. (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made or shortly before or after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission." 483 The material which was tendered by the Crown and which came from the same book as mfi:95 comprised Exhibits DR1 and DR2. When the content of those two exhibits is considered and compared with the content of mfi:95, there is nothing to link the latter document with the two exhibits so as to enliven s 81(2). There is nothing in mfi:95 which, on the face of it, suggests that it was "made in relation to" Exhibit DR1 or Exhibit DR2. Nor could it be said that it is "reasonably necessary" to refer to mfi:95 in order to understand anything in either Exhibit DR1 or DR2. MFI:95 does not contain anything which would lead to an understanding of either Exhibit DR1 or DR2, even if the two exhibits could be regarded as containing admissions. 484 In my opinion, her Honour was correct to reject the tender of mfi:95. 485 DOWD J: I agree with the judgment in draft form and the proposed orders of Spigelman CJ. I agree with the draft judgment and proposed order of Studdert J except insofar as that judgment disagrees with Spigelman CJ as to MFI 95. 486 As to the following grounds of appeal I make the following findings and set out the following reasons. Ground 6.2(a) 487 The appellant's grounds of appeal include in 6.2(a) a ground that the trial judge erred in law in admitting into evidence the opinion evidence of Mr Westwood concerning disputed handwriting. 488 Mr Westwood, an expert handwriting and document examiner, gave evidence after the overruling of an objection by the appellant on the status of Mr Westwood's methodology concerning handwriting: that that methodology was fundamentally flawed and that his opinions were nothing more than speculation, and that they were therefore irrelevant. 489 The contention was that Mr Westwood used sample or control documents which were not properly proven, and that his ultimate opinions were uncertain or speculative because it was an opinion based on an opinion. 490 It was contended by the appellant that where an expert expresses an opinion concerning the authorship of disputed handwriting using sample or control documents, those sample or control documents must be proved either by admission by the alleged author or a witness who saw the alleged author write the document, or from somebody familiar with the handwriting of the alleged author. 491 The appellant contended that none of the relevant control documents were thus proven, and that only two of the nine control documents which comprise four handwritten words were proven by that appropriate method. 492 The challenge to the evidence was on the basis that Mr Westwood used the known control documents as samples, and that he formed a view that these were written by the same person as the control documents. It was contended that this form of analysis was impermissible, and becoming an opinion on an opinion. The Crown had sought to prove the association between the control documents and the known control documents by the fact that they were taken from the house where the appellant resided by inference from the content of the documents, but it was asserted by the appellant that there was no evidence to exclude the hypothesis that other persons may have been responsible for the documents. 493 It was further contended that Mr Westwood's opinions were based largely on assumptions, which the Crown did not prove to the necessary standard, and that his opinions were therefore necessarily irrelevant and inadmissible. 494 The appellant contended, in the alternative, that Mr Westwood's opinions should have been excluded under ss135 or 137 of the Evidence Act, on the basis that it's probative value was low, being opinions on opinions, and that it was unfairly prejudicial and was likely to mislead or confuse. 495 In answer to the appellant's submissions, the Crown submitted that the objection which was taken at trial, related to the comparison conducted by the handwriting expert, Mr Westwood, not as to the indentations achieved by the electrostatic detection apparatus which is referred to as ESDA, the process whereby indentations are enhanced into handwriting. I note that the point which is now taken in the appeal is that same point taken at trial. 496 It is significant that in fact there was no challenge to the expertise of Mr Westwood, nor, in the light of his vast experience and expertise could there be. The challenges to him were matters of credit relating to other trials at which he had given evidence. An examination of Mr Westwood's cross-examination showed otherwise little challenge to his evidence and as such no challenge to the actual conclusions on handwriting to which he came. It was to be noted that in his evidence, the appellant had been given the opportunity to have the material examined by a Mr Chris Anderson, a document examiner. Mr Anderson was not called by the defence, a point which cannot have escaped the notice of the jury. 497 Of the control documents that were used apart from notebooks with which I will deal shortly, the authenticity of each document was established by oral evidence, and as pointed out by the Crown Prosecutor, was unchallenged by then counsel for the appellant. As to the four notebooks which went into evidence, one of them being document thirty-five, Exhibit DG, this was primarily used for the majority of comparisons. Examination of Exhibit DG which was before the jury, shows, together with other evidence, that the writing was that of the appellant. It was found in his living area, it contained detailed writings of a takeover of which he was the architect and detailed descriptions of the character of his colleagues at work. It is overwhelmingly clear that it was the appellant's book, a fact which he admitted in his record of interview. 498 The appellant, in his record of interview, also made statements concerning the ownership of the notebook in which exhibit DG was found and the handwriting in that exhibit. He said "it looks like mine". It was open to the jury to use these statements to conclude that it was his handwriting. 499 Her Honour had, with respect, the evidence of experts which included Mr Westwood's evidence, and had given the usual directions concerning circumstantial evidence and the process of drawing inferences from circumstantial evidence which would enable the jury to assess this evidence in conjunction with the other evidence. 500 It is clear from Mr Westwood's evidence that he did in fact exclude some handwriting that was not that of the appellant, as evidence of the care he took, a fact which was ultimately confirmed by other witnesses. 501 Mr Westwood conceded that if the control documents can be proved not to have been the handwriting of Mr Hannes, that he would need to review his findings, but no such attempt was made by then senior counsel for the appellant. And although it was not conceded by the appellant's counsel that it was his book, no challenge was mounted in the trial to the conclusion that it was both the appellant's book and the appellant's handwriting. 502 The statements by the appellant in his ERISP as to document thirty-five and the independent proof by other evidence of other documents in the Crown case, in my view, clearly supports the judge's admission of the evidence. There was before the jury evidence from which a reasonable jury could infer that the documents were written by the appellant. In my view, the Crown case was very strong on this issue. 503 Her Honour in fact specifically dealt with the part of the evidence as to handwriting when dealing with the direction to the jury as to circumstantial evidence, and senior counsel for the Crown at the trial pointed out the absence of challenge to the jury, and that this was only a challenge as to Mr Westwood's credit. Some of the documents that were used and exhibited before the jury were documents specifically known to be the handwriting of the appellant, for instance his authority to operate his Taxola account. 504 Various terminology was used in terms of probability as to handwriting, in some cases "probably", in some "very probably". The words 'very probably' has a higher level of quality of comparison of handwriting evidence. An examination of all of the evidence exhibited being documents that were identified by various witnesses, create a very strong circumstantial case as to the appellant being the writer of the known control and control documents. 505 I can see no basis for exclusion of the evidence under the discretionary provisions of the Evidence Act 1995. The appellant's submissions in this Court did not identify the nature of the unfair prejudice which it submitted outweighed the probative value of Mr Westwood's evidence concerning the handwriting and should thus have led to the exclusion of the evidence under either s135 or s137 of the Evidence Act. Nor was the reason that the evidence likely to mislead or confuse identified. 506 At trial, the appellant, perhaps not in a particularly clear manner, submitted on the voir dire that the reason that should trigger the discretionary exclusion of the evidence was that the jury may use evidence that was not proved to convict the accused. The jury were entitled to give the evidence whatever weight they thought it deserved. The factual basis for the opinion and the process were clearly before the jury. There was no real danger that the jury would use the evidence improperly. The appellant's submissions on this point should be rejected. 507 The evidence had high probative value and no prejudice was shown. Her Honour was correct in admitting the documents, and this ground therefore fails. Ground 6.3 508 At 6.3 of the grounds of appeal, the appellant submitted that in the alternative to 6.2(a), that the trial judge having admitted the evidence of Mr Westwood concerning disputed handwriting, there was an error of law or alternatively a miscarriage of justice in that Her Honour failed to give any, or any adequate, directions or instructions to the jury concerning that evidence, and in particular failed to direct the jury concerning that before they could accept Mr Westwood's opinions, they had to be satisfied beyond reasonable doubt that the appellant was the author of the known control documents. 509 The appellant submitted, as I earlier indicated, that the only direction which Her Honour gave as to the way in which Mr Westwood's evidence was to be approached, was a general expert witness's direction that opinions are only as valuable as the facts upon which they are based, and that they have limited value if the facts have not been established to the jury's satisfaction. 510 The appellant's contention is that the jury should have been directed that before Mr Westwood's opinions could be relied on, they had to be satisfied beyond reasonable doubt that the appellant was the author of all of them, and that Her Honour should then have given the jury some guidance in relation to the evidence concerning the authorship of the relevant control documents and known control documents, as well as how the jury should approach Mr Westwood's prima facie evidence. 511 The appellant contends that Mr Westwood was a crucial part of the Crown case, and that the admission that his evidence or failure to give adequate directions resulted in a substantial miscarriage of justice. 512 Her Honour in her summing up at AB 2035 and 2036 and again when she resumed the following hearing day from page 2045 and 2046, went through the evidence as to handwriting when dealing with circumstantial evidence in the drawing of inferences. A greater degree of elaboration would have been desirable. 513 In particular it would have been desirable for her Honour to accurately summarise the process by which Mr Westwood has first formed the opinion that certain of the documents originally identified as the 'control documents' and the 'known control documents' were written by the same person and then formed his opinion, through a process of comparison with the documents thus identified that other documents were also written by the same person. 514 The High Court in Shephard v R (1990) 170 CLR 573, per the judgments of Mason CJ, Dawson, Toohey and Gaudron JJ, held that if it was necessary for a jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. 515 Her Honour summarised the process by which Mr Westwood formed his opinion as follows: "… he compares those, compares the various documents with what was called the 'known control and control documents' and he expresses an opinion in relation to the authorship of those various signatures, not only the cheques but in respect to other documents that he was given the task of looking at." (AB2036) 516 Whether there is a need for a trial judge to identify such a conclusion and direct the jury as to that standard of proof will depend upon the circumstances of the case. 517 There was nothing in the direction sought that "all of the handwriting in the known control documents" be established beyond reasonable doubt be that of Mr Hannes. This evidence is unquestionably a critical part of the Crown case, but is not such an intermediate conclusion as would identify it as an indispensable intermediate step as identified in Shephard. 518 In my view, the direction given by Her Honour as to expert evidence was sufficient, since it was clear that Mr Westwood was one of those experts that it was a matter for the jury to be satisfied on the evidence that a conclusion could be drawn about the comparison between the control documents and the specific documents admitted into evidence which were described as 'specimen' documents that the appellant was the author. 519 In my view, this ground fails. Ground 6.2(b) 520 At 6.2(b) of the grounds of appeal, the appellant claimed that the trial judge erred in law in admitting into evidence the photoboards GP 96/1437 (which became Exhibits RR and TT respectively), together with the evidence of Mr Brear and Ms Wilkins in connection with such photoboards. 521 The evidence of two witnesses, namely Mr Brear and Ms Wilkins, was objected to in relation to the selection of a photograph from a photoboard because of a suggested contravention of s3Z0(2) of the Commonwealth Crimes Act 1914. It is contended therefore by the appellant that this brought the evidence within s138 of the Evidence Act 1995 and thus should have been excluded. 522 The appellant's submission was that Mr Brear and Ms Wilkins had described the persons as having close-cropped short hair or a crew-cut, and none of the photographs had close cropped hair and that the other photographs did not contain photographs of persons who resembled the suspect in age and general appearance. 523 Section 3ZO(2) is relevantly in the following terms: "(2) If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply: (a) the constable must show to the witness photographs or pictures of at least 9 different persons; (b) each photograph or picture of a person who is not the suspect must be of a person who: (i) resembles the suspect in age and general appearance; and (ii) does not have features visible in the photograph or picture that are markedly different form those of the suspect as described by the witness before viewing the photographs or pictures;…." there are then set out other conditions that are not here relevant. 524 Her Honour overruled the objection to this evidence. Her Honour agreed with the submission of the Crown that at the relevant time, the police were still in the investigative phase and had no distinct suspect in the terms required by s3ZO(2). Earlier, counsel for the appellant had agreed that it was not the case that there was any evidence that the police said that the person whom they were attempting to identify was the appellant. (AB200 line 30). 525 It is contended by the appellant that Her Honour was incorrect and that s3ZO(2) applies to a situation where persons where police show a photograph to a person to establish the identity of a subject which is part of the investigative stage. The submission was that the person in a photograph numbered four was the suspect, and the police were endeavouring to establish his identity. 526 It is then submitted by the appellant that once a finding has been made of contravention of the rules in s3ZO(2) of the Crimes Act, that the evidence should have been excluded under s138, since the evidence was of a low probative value, and that the evidence was prejudicial. 527 The Crown does not challenge that a person may be a suspect, even though the investigators do not know his name, but at the time of the examination of the photoboards, the investigators did not have a suspect, which is what s3ZO(2) requires. 528 Counsel at the hearing conceded that the appellant's application to exclude must fail if the Crown's submission is right. 529 Whether that concession had occurred or not, s 3ZO(2) of the Crimes Act only operates where the investigators have identified a "suspect". Having a photograph of a person does not make the person photographed a suspect. The subsection talks in terms of "whether or not the suspect is in custody". Indeed, the section clearly connotes a particular person being the subject of suspicion. A person in a photograph does not make that photograph a person within the contemplation of the section. 530 Agent Jamieson was the Federal Agent that was investigating the events at the relevant time. She gave evidence that she commenced working on avenues of inquiry into finding "Mark Booth" on 15 October 1996. Agent Jamieson said that the photographs the subject of this ground of appeal were converted into prints from various frames copies onto thermal paper from a video obtained from the National Australia Bank branch in Leichhardt on 18 October 1996. 531 Agent Jamieson gave evidence that the basis of her selection of prints was: "A … fairly broad in terms of looking for males between the ages of about late 20s and early 40s, light coloured skin. That's about it. Q Any particular appearance? A Either neat casual or business attire. Q And was that selection, if I can put it that way, based on descriptions that you had obtained to that point? A Yes. It was. Q What descriptions was it based on? A I had obtained descriptions from Donna Anthes, Theresa Garbo, Caroline Pollard and David Jackson at that stage." (AB251 lines 10-28) 532 This suggests that the criteria for selection were not specific. At AB252 line 35 Agent Jamieson agreed that the descriptions were "in general terms". Agent Jamieson gave evidence of the descriptions of Booth given to her by Ms Anthes, Ms Pollard and Mr Jackson. Nothing in those descriptions is of a sufficient particularity to justify a conclusion that at the relevant time, Agent Jamieson's work was other than investigative. This supports the Crown's submission that the police were only in the investigative stage and had not moved into the phase which would fall under s3ZO(2). 533 As contended by the Crown, this issue was not argued fully at the trial because of the concession of counsel appearing for the appellant, even though that concession may have been misconceived. I would in that event apply Rule 4 of the Criminal Appeal Rules. The objection was correctly overruled. At that stage, the attempt was to identify "Mark Booth", who has never been a suspect in these proceedings. 534 In my view, this ground of appeal fails. Non-consensual verdicts 535 The appellant raised the further ground that there was an unacceptable risk that the jury's verdict in respect of the insider trading count was non-consensual in that the circumstances of the trial created undue pressure upon individual jurors to join the view taken by the majority because those individuals saw no other way of bringing the trial to an end. 536 In support of this ground, the appellant submitted that the trial had continued well in excess of the estimate given to jurors at the commencement; that the jury deliberated for an inordinate amount of time, namely 11 days, which was 28 days after the close of evidence, and 28 days after the closing addresses; and that on day six of deliberations, the jury sought directions as to the meaning of the term "reasonable doubt". 537 The appellant further submitted that when the verdicts on the Financial Trading Act counts were received, a note was sent by the jury saying that they were unable to reach a unanimous direction on the insider trading count. The appellant submitted that Her Honour failed to give a clear indication to the jury that it would be discharged if unable to reach a unanimous verdict when she gave a direction which purported to comply with Black v the Queen (1993) 179 CLR 44, but departed from the usual direction, in that she failed to indicate that the jury would be discharged if they did not reach a unanimous verdict. 538 The appellant also relies on Her Honour's failure to discharge the jury on the application of the appellant, or to conduct an enquiry under s56 of the Jury Act 1977 and it is suggested that Her Honour's discretion miscarried because she had regard to an irrelevant consideration, namely that a court officer advised her that the jury had requested a video screen to review the ERISP. It was further submitted by the appellant that Her Honour should have questioned the foreman of the jury, as to whether the deliberations were continuing. 539 The respondent in reply to these contentions, pointed out that the jury had a considerable amount of evidence to consider, with documents running to an excess of 2500 pages, and that the jury had, when commencing deliberations, advised that they wanted to conclude at 4pm each day, indicating that the jury members themselves contemplated that their deliberations would be lengthy. 540 As submitted by the respondent, the request for a screen showed that the jury were continuing with meaningful deliberations and wanted to watch the video as opposed to reading the transcript. The record of interview was obviously heavily relied on by the Crown. It is pointed out that at the tender of the video, the Crown told the jury in terms of the usual direction in accordance with Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180, to indicate that it was the video, not the transcript, which is the evidence. 541 The respondent pointed out that the video runs for 2 hours and 23 minutes, and that the request had been made at 9.30 am on the 10 August 1999, and that the jury's verdict was delivered at 2.57 pm on the 11 August 1999. 542 In relation to the length of the trial, it is clear that the jury approached the matter on the basis that it would take a considerable amount of time to examine the vast quantity of material during their deliberations. It would be, in the nature of the trial, unusual if the jury did not want to examine the material, and that examination would be at length. A jury seeking directions some part way through deliberations is evidence of the continuing deliberation by the jury. In that respect, I would reject this submission. 543 The variation Her Honour made at the end of the standard Black direction, that she would deal with the matter if the jury was unable to reach a unanimous verdict, could have had no other meaning to the jury other than that they would be then discharged. Her opening words of the direction were: "I have the power to discharge you from giving a verdict, but I should only do so if I am satisfied that there is no likelihood that genuine agreement being reached after further deliberations." Appeal Book 2290 544 There is no way that the jury could have misunderstood the fact that they would be discharged if no agreement had been reached after further deliberation. I reject this submission. 545 In the light of the Butera submission by the Crown, it is clear that the record of interview, being central to the Crown's case, that there would be no basis, on the evidence available to Her Honour, that the jury was still deliberating on the record of interview, for Her Honour to question the foreman, or to do other than to assume that normal and proper deliberations were continuing, would be an unwarranted interference, at that stage, with the jury process. 546 On the length of the trial and the volume of material and evidence that the jury had dealt with two of the three charges and were seeking to further examine evidence on the significant record of interview presents, notwithstanding the length of the trial, an overwhelming case that the jury were carrying out the functions in a normal and appropriate manner. 547 There is no evidence that anyone was pressured by the length of time, and there was nothing to indicate that the jury's verdict was other than a consensual verdict, particularly considering the short space of time from what would have been the viewing of the appellant's record of interview, and the delivery of the jury verdict on the insider trading count. 548 The jury appears to have taken their responsibility seriously and to have carefully examined in an appropriate manner, a vast quantity of evidence over a considerable length of time. This ground is not made out. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.