Reported Decision : 60 ACSR 1 165 A Crim R 151 New South Wales Court of Criminal Appeal CITATION: HANNES v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) (NO. 2) [2006] NSWCCA 373 HEARING DATE(S): 7, 8, 10, 11 and 14-17 November 2005 JUDGMENT DATE: 24 November 2006 JUDGMENT OF: Basten JA at 1; Barr J at 96; Hall J at 96 DECISION: (1) Appeal against conviction dismissed; (2) Application for leave to appeal against sentence dismissed. CATCHWORDS: CONSTITUTION – s 109 inconsistency – State and federal law - Financial Transaction Reports Act 1998 (Cth) and Evidence Act 1995 (NSW) – standard of proof - CRIMINAL PLEADINGS – duplicity – uncertainty – whether prosecution case involved ambiguity or uncertainty - EVIDENCE – admissibility – identification evidence – photoboard selection – whether probative value outweighed by danger of unfair prejudice - EVIDENCE – admissibility – character evidence – adverse character evidence from re-examination of witness inadmissible – whether inappropriate for prosecution to comment on failure by defence to call character evidence - EVIDENCE – admissibility – handwriting evidence – whether change in expert evidence rendered it inadmissible – whether each reason for reaching the expert conclusion must be referrable to specialised knowledge – whether evidence inadmissible because sample for handwriting analysis was obtained in manner prejudicial to defendant - EVIDENCE – unfair prejudice – Evidence Act 1995 (NSW) – ss 135, 136, 137 - EVIDENCE – opinion – inference derived from primary facts – Evidence Act 1995 (NSW) – ss 76, 79 - INSIDER TRADING – pleadings – uncertainty and duplicity – whether evidence conformed to pleadings – meaning of "likely" - INSIDER TRADING –– elements of offence – definition of information – whether inference can be drawn from conduct – whether inference need to be the only reasonable inference available - INSIDER TRADING – elements of offence – requirements for general availability –whether information as a whole was generally available if particular aspects of it was generally available - INSIDER TRADING – elements of offence – definition of "purchase" and "securities" – whether purchase of option contracts within definition - JURY DIRECTIONS – whether Shepherd direction required – whether any information, apart from the particularised elements in indictment, was indispensable – meaning of "likely" in indictment - STRUCTURING TRANSACTIONS – Financial Transactions Reports Act 1998 (Cth) – standard of proof in s 31(1)(b) Corporations Act 2001 (Cth), ss 1383, 1401 Corporations Law, ss 1002A, 1002B, 1002C, 1002G Companies Act 1958 (Vic), s 43 Companies Act 1961 (Vic), s 124 Constitution (Cth), s 109 Crimes Act (Cth), s 3ZO Criminal Appeal Act 1912 (NSW), s 6 Criminal Appeal Rules, r 4 LEGISLATION CITED: Criminal Code (Qld), ss 8, 9, 229B Criminal Code Act 1924 (Tas), s 157 Criminal Procedure Act 1986 (NSW), s 64 Evidence Act 1995 (NSW), ss 4, 8, 18, 20, 37, 38, 76, 79, 135, 136, 137, 141 Financial Transaction Reports Act 1988 (Cth), ss 3, 31 Interpretation Act 1987 (NSW), ss 12, 65 Judiciary Act 1903 (Cth), ss 68, 78B, 79 Licensing Act 1932-1935 (SA), s 209 Securities Industry Act 1970 (NSW), s 75A Alexander v The Queen (1979-1980) 145 CLR 395 Bell Group Limited v The Herald and Weekly Times [1985] VR 613 Boughey v Regina (1986) 161 CLR 10 Chamberlain v The Queen [No. 2] (1984) 153 CLR 521 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Clark v Ryan (1960) 103 CLR 486 Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389 Commissioner for Corporate Affairs v Green [1978] VR 505 Darkan v The Queen (2006) 228 ALR 534; 80 ALJR 1250 Director of Public Prosecutions v Merriman [1973] AC 584 Director of Public Prosecutions (Cth) v Germakian [2006] NSWCA 275 Dyers v The Queen (2002) 210 CLR 285 Exicom Pty Limited v Futuris Corporation Limited (1995) 123 FLR 394; 13 ACLC 1758 Ex parte Graham; re Dowling (1968) 88 WN (NSW) 270 Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 Festa v The Queen (2001) 208 CLR 593 Fox v Percy (2003) 214 CLR 118 Gilbert v The Queen (2000) 201 CLR 414 Guide Dog Owners' and Friends' Association Inc v Guide Dog Association of NSW and ACT (1998) 154 ALR 527 HG v The Queen (1999) 197 CLR 414 Hooker Investments Pty. Limited v Baring Bros. Halkerston & Partners Limited (1986) 5 NSWLR 157; 10 ACLR 524 House v The King (1936) 55 CLR 499 John L Pty Limited v Attorney General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Jones v Dunkel (1959) 101 CLR 298 Jones v The Queen (1997) 191 CLR 439 KBT v The Queen (1997) 191 CLR 417 Leask v Commonwealth (1996) 187 CLR 579 M v The Queen (1994) 181 CLR 487 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Meteyard v Love (2005) 65 NSWLR 36; 224 ALR 588; 56 ACSR 487 Mraz v The Queen (1955) 93 CLR 493 Montgomery v Stewart (1967) 116 CLR 220 Papakosmas v The Queen (1999) 196 CLR 297 Peacock v The King (1911) 13 CLR 619 Pitkin v The Queen (1995) 69 ALJR 612 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 The Queen v Apostilides (1984) 154 CLR 563 Question of Law Reserved (No. 2 of 1998) (1998) 70 SASR 502; 154 ALR 161 Quick v Stoland (1998) 87 FCR 371 R v Abbrederis [1981] 1 NSWLR 530 R v Adams [2004] NSWCCA 279 CASES CITED: R v BD (1997) 94 A Crim R 131 R v Buckland (1977) 2 NSWLR 452 R v Cook [2004] NSWCCA 52 R v Daher (1981) 2 NSWLR 669 Regina v Evans & Doyle [1999] VSC 488 Regina v Giam (1999) 104 A Crim R 416 Regina v Firns (2001) 51 NSWLR 548 R v Hannes (2000) 158 FLR 359 R v Harris (1680) 7 How St Tr 926 R v Hnoudis [1998] SADC 3941 (3 December 1998) Regina v Holden [1974] 2 NSWLR 548 Regina v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281; (2005) 223 ALR 580 R v Leask [1999] NSWCCA 33 Regina v Merritt [1999] NSWCCA 29 Regina v Moussad [1999] NSWCCA 337 R v Noonan [2002] NSWCCA 150 R v Parsons (1983) 53 ALR 568 R v Richards (2001) 123 A Crim R 14 R v Rivkin (2004) 59 NSWLR 284; 184 FLR 365; [2004] NSWCCA 7 R v Stannard (1837) 173 ER 295 R v Thompson (1996) 90 A Crim R 416 R v Thompson [1966] QWN 47 R v Turner (1664) 6 How St Tr 565 R v Zampogna [2003] 85 SASR 56 Reiss v Pan American World Airways Inc 711 F.2d 11 (2d Cir. 1983) Ryan v Triguboff [1976] 1 NSWLR 588 S v The Queen (1989) 168 CLR 266 Securities and Exchange Commission v Texas Gulf Sulphur Co, 401 F.2d 833 (2d Cir. 1968) Shepherd v The Queen (1990) 170 CLR 573 Smith v Moody (1903) 1 KB 56 Solomons v District Court (NSW) (2002) 211 CLR 119 Stanton v Abernathy (1990) 19 NSWLR 656 Sydney Futures Exchange Limited v Australian Stock Exchange (1995) 56 FCR 236; 128 ALR 417 Tillmanns Butcheries v AMIEU (1979) 27 ALR 367 United States v Libera 989 F.2d 596 (2d Cir. 1993) Velevski v The Queen (2002) 76 ALJR 402 Voros v Janosne, in Re Estate of Anna Gdyro [2000] NSWSC 1166 Walsh v Tattersall (1996) 188 CLR 77 Weiss v The Queen (2005) 80 ALJR 444 Weissensteiner v The Queen (1993) 178 CLR 217 Whitehorn v The Queen (1983) 152 CLR 657 Anderson, Hunter & Williams "The New Evidence Law" (2002) Archbold, "Criminal Pleading, Evidence and Practice" (2005) at §1-135 Jill Hunter, "Prosecutors' Pleadings and the Rule Against Duplicity" (1980) 3 UNSWLJ 248 PARTIES: Simon Gautier Hannes - Appellant Commonwealth Director of Public Prosecutions - Respondent FILE NUMBER(S): CCA 60108/04 COUNSEL: Appellant in person T.A. Game SC/R.J. Bromwich - Respondent SOLICITORS: Unrepresented – Appellant Commonwealth Director of Public Prosecutions - Respondent LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 070009/2001 LOWER COURT JUDICIAL OFFICER: Bruce James J LOWER COURT DATE OF DECISION: 11 September 2002 IN THE COURT OF CRIMINAL APPEAL CCA 60108/04 SC 070009/2001 BASTEN JA BARR J HALL J 24 November 2006 Simon Gautier HANNES v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) (NO. 2) Facts The Appellant, Mr Simon Hannes, appealed from convictions on one count of insider trading, contrary to s1002G(2) of the Corporations Act 2001 (Cth); and two counts of structuring cash transactions, contrary to s31(1) of the Financial Transaction Reports Act 1988 (Cth) (FTR Act). In 1996 the Appellant was an executive director of Macquarie Corporate Finance (MCF). MCF advised TNT Limited on a friendly takeover by the Dutch Post Office (KPN) which occurred on 2 October 1996. Approximately two weeks prior to the takeover offer being announced a man identifying himself as "M Booth" instructed a stockbroker to acquire $90,000 worth of $2.00 call options in TNT, maturing in November 1996. The take-over announcement ultimately meant that the option contracts returned a profit of over $2 million. The Crown adduced evidence that 'M Booth' was in fact the Appellant. While the Appellant was not part of the team providing advice, the prosecution alleged that he had access to and made use of information held by MCF to purchase the call options. The purchase was the subject of the insider trading count. The two counts under the FTR Act stemmed from events leading to the purchase of the options. The Appellant made withdrawals from his personal account, including 9 withdrawals of amounts under $10,000. That money was used to purchase bank cheques, again in amounts under $10,000, which were deposited into a trading account in the name of M Booth with the stockbroker and used to fund the purchase of the options. These transactions were alleged to have been undertaken to avoid the cash reporting obligations for amounts of $10,000 or more, under the FTR Act, and formed the basis of counts 2 and 3. The Appellant was convicted on all three counts. A sentence of two years and six months was imposed, which had been served in full before the hearing of the appeal. The grounds of appeal alleged errors in the form of the indictment, the admission of evidence and the summing up to the jury. The Court held: (1) Uncertainty in indictment (a) Principle of duplicity (by Barr and Hall JJ) The common law rule against duplicity distinguishes between patent duplicity and latent duplicity. The well-established rules in criminal proceedings require that fair information and reasonable particularity as to the nature of the offence charged be given to a defendant: at [389]–[392], [398], [446]. John L. Pty Limited v Attorney General (NSW) (1987) 163 CLR 508, applied , Walsh v Tattersall (1996) 188 CLR 77; Johnson v Miller (1937) 59 CLR 46; Regina v Janceski (2005) 64 NSWLR 10; John L. Pty Limited v Attorney General (NSW) (1987) 163 CLR 508; Ex parte Lovell; re Buckley (1938) 38 SR(NSW) 153, considered. (by Basten JA) "Latent duplicity" operates where the evidence reveals that the charge encompasses more than one offence: at [4]. S v The Queen (1989) 168 CLR 266; Walsh v Tattersall 188 CLR 77; Johnson v Miller (1937) 59 CLR 467, applied. To identify duplicity or uncertainty, the first step is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleadings as constituting the offence in the particular case. Where a particular act is prohibited if it has one or a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities: at [9]. Montgomery v Stewart (1967) 116 CLR 220 applied; Walsh v Tattersall 188 CLR 77; KBT v The Queen (1997) 191 CLR 417; R v Thompson (1996) 90 A Crim R 416, applied. (b) The meaning of "likely" (by Barr & Hall JJ) The jury was not left to choose between two different meanings of "likely". The trial judge specifically instructed the jury that they were to disregard the Crown's submission on the meaning of likely and made it clear that it was for the jury to determine the meaning of "likely" as an ordinary English word. The expression "a real and not a remote possibility" that the Crown had introduced as the meaning of "likely" is not and would not be taken by a lay person as the ordinary meaning of "likely" as a matter of plain English or as constituting the common usage of the word. An appellate court should act upon the basis that where a trial judge specifically directs a jury on a matter the members of the jury will act in accordance with the direction and not contrary to it: at [502]–[503], [533]. "Likely" was employed as a predictive term in the particulars of the indictment and is not to be interpreted as if it was a word appearing in a statute. The scope for the word "likely" having a meaning that is different from its natural meaning will only arise in a particular statutory context: at [525] and [535]. Darkan v The Queen (2006) 80 ALJR 1250, considered. (by Basten JA dissenting) The trial judge determined that he would not give directions as to the meaning of the word "likely" following the conventional view that the ordinary meaning of the word is a question of fact for the jury to determine. However an indictment is not a statute and there is real danger that to leave such a matter to the jury without instruction is to permit them to choose between a takeover offer which was no more than a real and not remote possibility, and one which was more probable than not: at [30]. Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389, considered. (c) Whether the Prosecution's case changed from the particulars as to the possession of information of an offer in excess of $2.00 to information of an offer at $2.45 (by Barr & Hall JJ) The directions given by the trial judge on the elements of possession, general availability and materiality were properly based upon the particulars and were framed by reference to the particularised information in terms that were clear and free of ambiguity: at [442]. It is the particularised information that has to be shown to satisfy the elements of the offence, and that sets the ambit for the evidence that is properly admissible. The information need not be 'specific': at [450]. Regina v Rivkin (2004) 59 NSWLR 284, applied. The summing up emphasised and repeated in clear terms the distinction between "information" for the purpose of "general availability" and "materiality" as particularised in the indictment in contradistinction to the evidence that would permit the jury to make a finding in relation to "possession": at [461]. (by Basten JA dissenting) A case which rested on the proposition that an offer in the range of $2.40 to $2.50, was at least more probable than not, is significantly different from a case that there was a real possibility of an offer no higher than $2.01. The pleading did not conform to the evidence called. The ambiguity or uncertainty affected not only a consideration of the information possessed by the Appellant, but also the non-general availability and materiality of the information as pleaded. The potential for prejudice was significant: at [25]-[47]. The care with which his Honour formulated, presented and repeated directions to the jury accentuated, rather than diminished, the inherent uncertainty in the prosecution case. The dual elements of uncertainty rendered the nature of the jury's task obscure: at [46]. The proviso under s6(1) of the Criminal Appeals Act 1912 (NSW) requires an assessment of the likely effect on the verdict of the legal error or other flaw in the trial process: at [51]. Weiss v The Queen (2005) 80 ALJR 444, applied. The uncertainty in the indictment and evidence gave rise to a substantial miscarriage of justice in the present case. The uncertainty was compounded by the change in direction relating to whether all elements of the information particularised needed to be proved. It was unfair to the defence to have the Director plead one case and proceed with evidence directed to a case which would give rise to quite different considerations in establishing materiality and non-general availability: at [58]–[59]. Weiss v The Queen (2005) 80 ALJR 444; S v The Queen (1989) 168 CLR 266, applied. The conviction on the first count should be set aside on the ground of uncertainty. This is the second trial of the Appellant on this charge. He has served his sentence. A verdict of acquittal should be substituted: at [60]. (2) Admissibility of Evidence (a) Use of photoboard for identification The process of selection of the photographs used was unlikely to give rise to subconscious pressure to choose a photograph of a "suspect" who "looks like" the offender. The photographs were not of likely offenders but of members of the public recorded on the security camera of a bank or other commercial institution. The offender was indeed a 'member of the public': at [181]. Pitkin v The Queen (1995) 69 ALJR 612, distinguished. There was no unfairness in the way the photoboard was put together. The photograph of the defendant was not markedly different from other photographs and was generally consistent with the descriptions given by the witnesses of the person alleged to be the offender, who attended various offices: at [186]–[187]. The need for caution in the use of the photographic evidence was satisfactorily put to the jury in the summing up; no miscarriage of justice resulted: at [210]. (b) Character Evidence To the extent that it does not go to credibility, good character evidence is admissible to show that it is improbable that the person accused would have conducted himself as alleged. The evidence should be evidence of prior good character. Where a witness had expressed an opinion that the Appellant would not have acted as alleged, it is entirely beside the point to ask her to assume that he did act as alleged and then seek an opinion as to his character. The false premise of such questioning renders it mischievous. Had objection been taken at the outset of the line of questioning, it should have been rejected under s137 of the Evidence Act 1995 (NSW): at [222]–[223], [228]. R v Thompson [1996] QWN 47, applied. The trial judge later ruled against the admissibility of the evidence elicited in re-examination from Ms Rousselot: at [257]. The judge's direction to disregard the evidence was effective: at [246]–[247]. Gilbert v The Queen (2000) 201 CLR 414, applied. It was appropriate for the judge to give a direction to warn against drawing any adverse inference from a failure to call other witnesses or ask other witnesses questions as to character: at [252]. Dyers v The Queen (2002) 210 CLR 285; The Queen v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 657; R v Buckland (1977) 2 NSWLR 452; R v Noonan [2002] NSWCCA 150, applied. (c) Handwriting Evidence It is necessary for the expert evidence to demonstrate, by a number of steps, how each element of s79 of the Evidence Act is satisfied and to prove reasons for conclusions and to furnish the trier of facts with criteria enabling evaluation of the validity of the expert's conclusion: at [291]. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, applied. It was not necessary that each reason for reaching a conclusion was referrable to specialised knowledge, nor that the process of reasoning was based on such knowledge: at [296]–[297]. Velevski v The Queen (2002) 76 ALJR 402, applied. In relation to the issue of using documents from prison as a sample for handwriting analysis, once a jury had been told, with the agreement of the defence, that the Appellant had served a sentence of imprisonment, the potential unfair prejudice which might have attended the cross-examination of witnesses was dissipated. If there was some benefit to the defence in challenging the possible authorship of the documents, an application could then have been made to recall witnesses or tender other evidence. That step was not taken. Accordingly, no unfair prejudice resulted from the receipt of the evidence: at [320]. R v Cook [2004] NSWCCA 52, applied; R v Richards (2001) 123 A Crim R 14; Papakosmas v The Queen (1999) 196 CLR 297 considered. (3) "Project Tennis" The real prejudice asserted by the Appellant was the strength of the coincidence between the actions of "M Booth" and the opportunities enjoyed by Mr Hannes to obtain particular levels of information. The prejudice was not that which would flow from the implication of improper behaviour or from an invalid process of reasoning. There was no error in admitting the evidence, including evidence of what happened after the purchase order was placed on 17 September: at [339]. Evidence of the effect of the announcement of the takeover offer was relevant. The only question was whether the Court was entitled, or required, to exclude the evidence because it might be unfairly prejudicial or the danger of unfair prejudice might outweigh its probative value, for the purposes of ss 135 and 137 of the Evidence Act: at [346]. R v Hannes (2000) 158 FLR 359; R v Rivkin (2004) 59 NSWLR 284; United States v Libera 989 F.2d 596, considered; Reiss v Pan American World Airways Inc 711 F.2d 11 (2d Cir. 1983), distinguished. The actual effect of the release of the information to the marketplace is not necessarily without probative value in answering questions of general availability or materiality. The possibility that other factors may have affected the market for a particular security at a particular time must always be borne in mind, but to reject information as to price movements on that basis is, at least, to risk inviting the jury to speculate, without the assistance of the only concrete evidence which might provide some assistance in undertaking that evaluation: at [351]. (4) The insider trading charge (a) Information The expansive definition of "information" in s 1002A provide an important context within which to identify the level of precision that is required in the formulation of the charge: at [377]. The definition of "information" in s1002A includes intention. The intention may be inferred by others from the conduct of the directors of the company: at [411]. Commissioner for Corporate affairs v Green [1978] VR 505, applied, Ryan v Triguboff [1976] 1 NSWLR 588, distinguished. The inference need not be the only reasonable inference available to the Appellant. The fact that his knowledge of negotiations might reasonably have led him to a different view might make it less likely that the jury would be satisfied beyond reasonable doubt that the Appellant possessed the particularised information, but is otherwise irrelevant: at [412]. The kind of information which might affect a securities market may be quite imprecise. However, the source of the rumour may be of very considerable importance, despite the vagueness of the known details. If it is sufficient to satisfy that element of the offence, there is no reason to import into the statutory definition an additional requirement of specificity or precision: at [415]. (b) General Availability Even if it can be said that aspects of the particularised information were generally available, that did not lead to the conclusion that the particularised information as a whole was generally available. It was the combination of information particularised which was significant in relation to the offence charged: at [382]. (c) Materiality Materiality is concerned with the capacity of information to influence the investor's behaviour which, in turn, has a material effect on price or value of securities. The particularised information must be material to the class of securities in question and must be assessed objectively in the context of what is generally available: at [384]–[385]. Hooker Investment Pty. Limited v Baring Bros. Halkerston & Partners Limited (1986) 5 NSWLR 157; Exicom Pty Limited v Futuris Corporation Limited (1995) 123 FLR 394, applied. (5) The embargo list The changes in directions relating to particular 2 involving the embargo list was to simplify the task of the jury and there is no reason to suppose that the change gave rise to prejudice to the Appellant: the resultant direction favoured the Appellant and was given in unequivocal terms: at [575]. His Honour was correct to treat the particularised information as a body of information, which had a particular flavour and likely effect if available in the marketplace. The relevant effect was not fairly assessed by dividing it into parts and assessing each separately: at [579]. It was a matter for the jury to identify the nature of the information described in the particulars as questions of facts. There was no reason why the jury should have been directed that the particular takeover proposal had to be the original cause of its placement on the embargo list, or the sole cause as at the date of the purchase of the securities. It was sufficient that there was a material connection, which was not disputed: at [580]. (6) Insider trading charge – Jury directions (a) Purchase of securities The scheme under which option contracts are traded is a unique one and is quite different from trading in shares. The definition of "purchase" in s1002A reflects the fact that the legislature appreciated the different nature of the security and, accordingly, enacted a definition designed specifically to include persons who acquire an option or right from another party: at [593]–[594]. Sydney Futures Exchange Limited v Australian Stock Exchange (1995) 56 FCR 236, considered. In order to commit the offence of insider trading, it is not necessary for a person to purchase shares from the holder of a particular parcel of shares; it is sufficient for a person to acquire an option or a "right" under an option contract: at [597]. (b) Identity of purchaser The Court does not entertain a reasonable doubt, on the evidence as presented at trial, that the Appellant undertook activities which formed part of the conduct constituting Count 1: at [606]. (c) Possession of information Taken with other evidence, it was open to the jury to conclude that the Appellant had information of planned meetings and the identity of the proposed participants and that it was significant in terms of the information particularised. Reading the directions in full, it can hardly be doubted that the trial judge provided extensive and balanced guidance to the jury on each of the issues they were required to decide: at [618]–[619]. (d) Information generally available? If the Appellant had information which was not generally available, the fact that he or others have made the same deduction or drawn the same inference from other material which was generally available does not prevent him from falling within the definition of "insider". The relevant question to be answered in that case is whether the information he possessed which is not generally available would be expected to have a material effect on the price of the relevant security, even if precisely the same inference might be drawn from other material which was generally available: at [625]. R v Hannes (2000) 158 FLR 359, applied. The fact that aspects of the particularised information were generally available, did not mean that the information as a whole was generally available. The Appellant was not entitled to an acquittal on the basis that any particular aspect of the information relied on was generally available: at [634]. R v Hannes (2000) 158 FLR 359, applied. The directions given by the trial judge in relation to general availability did not demonstrate any error of law: at [644]. (e) Material effect No information was identified which might have been part of the particularised information which was generally available, but would not have influenced the price of the securities. Therefore the error in relation to the directions in this regard was immaterial and could not reasonably be identified as giving rise to a miscarriage of justice: at [656]. The Defence at trial did not seek a direction spelling out the manner in which the information could have a material effect. The Appellant must therefore overcome the hurdle provided by rule 4 of the Criminal Appeal Rules and at the least demonstrate that the lack of request was perhaps an oversight, rather than a belated raising of an issue which was not in terms put before the jury. The Crown's submission that no argument to this effect was in fact put to the jury was not rebutted by the Appellant and the ground must fail: at [660]. (f) Shepherd directions Where the theory of the prosecution's case rested upon a chain of reasoning, with a number of indispensable steps, the jury should properly be directed that they must be satisfied beyond reasonable doubt as to each step in the reasoning and the fact on which the step is based. However such a warning should not be given in any event where it would be unnecessary or confusing to do so: at [664]. Shepherd v The Queen (1990) 170 CLR 573; Regina v Merritt [1999] NSWCCA 29; Velevski v The Queen (2002) 76 ALJR 402, applied. The complaints in relation to evidence which comprised the elements of the various counts should be rejected. Each count was left to the jury unequivocally on the basis that the prosecution had to establish each element beyond reasonable doubt: at [675]. There was no single route by which the Crown sought to establish its case, nor any specific piece of information (other than the particularised elements in the indictment), which must, therefore, itself be proved beyond reasonable doubt, in order to establish the relevant particulars. To the extent that the prosecution could link the Appellant with the information, it improved the strength of its case. Each piece of information was a matter to be put into the scales by the jury, but none was indispensable so as to require a Shepherd direction: at [687] and [694]. Shepherd v The Queen (1990) 170 CLR 573; Velevski v The Queen (2002) 76 ALJR 402, applied. (7) Insider trading charge: Unsafe and unsatisfactory verdicts The question for the Court is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: at [697]–[698]. M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Dyers v The Queen (2002) 210 CLR 285, applied. Each element of count 1 was supported by evidence and the verdict cannot be characterised as unreasonable. The Court does not entertain as a significant possibility the Appellant's assertion that he may have been innocent and the verdict should not be set aside on that ground: at [702]–[703]. (8) The Reporting Charges (a) Pleading: "two or more transactions" (by Basten JA) The rule against duplicity will not apply to counts 2 and 3 as pleaded and as presented to the jury if on the correct analysis, the counts alleged one transaction or criminal enterprise, as opposed to a series of disparate acts, any one of which constituted an offence, if proved. Whether this approach is accepted requires consideration of the "gist of the offence", that is the elements of the specific offence, as defined by the statutory terminology: at [72]–[74]. Montgomery v Stewart (1967) 116 CLR 220; Director of Public Prosecutions v Merriman [1973] AC 584; Stanton v Abernathy (1990) 19 NSWLR 656; Regina v Giam (1999) 104 A Crim R 416; Regina v Moussad [1999] NSWCCA 337; R v Zampogna [2003] 85 SASR 56, applied. Section 31 of the FTR Act creates a single offence of conducting two or more transactions with a particular purpose. It is unlikely that the legislature intended the reference to "two or more" transactions to operate only as appropriate in relation to the minimum necessary to avoid a significant cash transaction. In other words, five transactions might be necessary to constitute an offence if each amounted to only $2,000, but it would not follow that five transactions of $9,000 would not equally constitute a single offence. Once this is accepted, there can be no duplicity in the latter case, although in a theoretical sense a different form of pleading would be possible: at [88]. KBT v The Queen (1997) 191 CLR 417; R v Leask [1999] NSWCCA 33; Walsh v Tattersall (1996) 188 CLR 77, considered. There is no objection in principle to pleading a greater number of matters than those necessary to establish the offence, so long as the jury is clearly directed that it must be unanimous as to the acts particularised about which it is satisfied. There was no relevant uncertainty: at [89]. KBT v The Queen (1997) 191 CLR 417, applied; R v Hnoudis [1998] SADC 3941, not followed. (by Barr & Hall JJ) Section 31(1) of the FTR Act creates a single offence constituted by "2 or more non-reportable cash transactions". In the event that the jury could be satisfied beyond reasonable doubt that two or more transaction contravened s31(1), the offence is made out. The section by its plain terms, creates an offence with respect to two, three or any greater number of transactions. It is neither "limited", "fixed" or "definite" (in the sense of a finite number) in terms of "transactions" to which it refers. Consequently, the submission that the indictment sought to charge the Appellant with an offence where the number of transaction "is not specified and fixed and definite" is without validity: at [750]–[751]. The direction given to the jury required unanimity in relation to the same two or more transactions. Whilst it is possible that every one of the transactions may not have been the subject of an accord between the jury members, the transactions were not necessarily inextricably linked to one another requiring an "all or nothing" approach by the jury. The fact that the jury could unanimously agree that two transactions, out of a larger number, were undertaken for the prohibited purpose was sufficient to establish an offence under s 31 regardless of whether one or more jurors were not so satisfied in relation to any one or more of the balance of transactions: at [757]. R v Hannes (2000) 158 FLR 359, applied. (b) Duplicity When dealing with statutory offences for the purpose of assessing a contention of duplicity, the starting point is the provisions of the relevant statute. Section 31(1) does not create separate offences for individual transactions but is based upon multiples of non-reportable cash transactions: [760]. Montgomery v Stewart (1967) 116 CLR 223; Walsh v Tattersall (1996) 188 CLR 77, applied; Johnson v Miller (1937) 59 CLR 467, distinguished. (c) Combination of charges There was no rule of law or statutory provision which prevented the jury from being told that it could rely upon the other transactions having regard to the amounts and dates of them and other evidence: at [772]. (d) Change in Crown case on Count 2 When the relevant passage of the summing up is examined, it is not correct to suggest that the Crown case on the second count was put by the trial judge "on a fundamentally different basis" in his summing up: at [780]. (e) Trial judge's direction on standard of proof The standard of proof required for the second element of the reporting charge is contained in s 31(1)(b) of the FTR Act, being "reasonable to conclude" rather than beyond reasonable doubt. Section 141 of the Evidence Act does not apply as s 79 of the Judiciary Act 1903 (Cth) will not pick up and apply as federal law the State Evidence Act to the extent that another law of the Commonwealth otherwise provides. The FTR Act is such a law: at [722]. Question of Law Reserved (No 2. of 1998) (1998) 70 SASR 502; Regina v Leask [1999] NSWCCA 33; Solomons v District Court (NSW) (2002) 211 CLR 119; Meteyard v Love (2005) 65 NSWLR 36; Director of Public Prosecutions (Cth) v Germakian [2006] NSWCA 275; applied. A reading of the general and specific directions given by the trial judge makes it plain that, notwithstanding references to "the balance of probabilities" during the course of the Crown address, when the jury was directed by the trial judge, the directions gave repeated emphasis to the correct approach to be adopted in relation to the second element of counts 2 and 3: at [729]. (f) Use of Count 1 evidence on the second element of Counts 2 and 3 The trial judge correctly directed the jury on the use to which evidence in relation to count 1 could be used for counts 2 and 3: at [802]–[804]. (g) Unsafe and unsatisfactory verdicts Taking the evidence as a whole, the Court is left with no real doubt that the Appellant was guilty of the offences under s 31(1): at [805]. IN THE supreme COURT OF new south wales court of CRIMINAL APPEAL CCA 60108/04 SC 070009/2001 BASTEN JA BARR J HALL J 24 November 2006 Simon Gautier HANNES v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) (NO. 2) Judgment INDEX Paragraph BASTEN JA 1.Introduction1 2.Uncertainty of convictions - principles4 3.Count 118 (1)Meaning of "likely"28 (2)A price in excess of $234 (3)Is this conclusion inconsistent with rulings on the first appeal?48 (4)Application of proviso49 4.Counts 2 and 362 (1)Count left to jury on alternative bases68 (2)Relevant principles72 (3)Effect of judgment on first appeal75 (4)Application of principles82 (5)Conclusions: Count 394 BARR and HALL JJ:96 PART A: General 1.Background98 2.The legal framework of charges156 3.The insider trading charge160 4.The reporting charges164 PART B: Admissibility of evidence166 1.Photographic evidence169 2.Character evidence213 (1)Re-examination of Ms Martin-Rousselot216 (2)Crown address231 (3)Summing-up241 (4)Other witnesses not questioned248 (5)Effect of belated withdrawal of evidence253 3.Handwriting evidence259 (1)Challenge to expertise277 (2)The comparison of documents305 4.Progress of "Project Tennis"321 5.The announcement effect340 PART C: Insider trading charge – Background and Pleadings 1.Introduction361 2.Statutory scheme365 3.Analysis of the statutory offence370 4.Overview as to issues concerning elements of the charge of the insider trading offence374 5.Uncertainty in criminal pleadings387 6.Principles as to the form of an indictment397 7.The particulars in the indictment charging the offence of insider trading (the "particularised information")401 8.Grounds relating to particulars406 9.Submissions made during the trial as to particulars416 10.Whether the Crown case departed from the particulars or a "defacto" transformation of paragraph (i) of the Particulars to an offer at $2.45424 11.Particulars of the indictment447 12.Materiality462 (1)No possibility of making a profit on the options468 (2)Comparative offers analysis477 (3)Possibility share price already affected by a possibility or likelihood of takeover481 13.The meaning of "likely" in Particular (i) of the particulars in the indictment – the Crown submissions on "likely" – trial judge's refusal to give a direction on the meaning of "likely"487 14.The meaning of the word "likely" in paragraph (i) of the Particulars506 (1)The pre-trial history of the particulars507 (2)References to the word "likely" during the trial514 (3)The meaning of "likely": a contextual question522 (4)Submissions and directions at trial on the meaning of the term "likely"523 15.The question of a "tension" between the Crown case on possession and its case on general availability and materiality540 16.Applying "likely" to paragraph (i) of the particulars and to the elements of 'materiality' and 'general availability'549 17.Summary of conclusions – uncertainty554 18.The embargo list570 PART D: Insider trading charge - Jury directions 1.Purchase of securities581 2.Identity of purchaser599 3.Possession of information607 4.Was the information generally available?620 5.Material effect649 6.The Appellant's approach on appeal661 7.Shepherd Directions664 (1)Matters complained of: general669 (2)Shepherd directions: the critical acts675 (3)The floppy disc documents679 (4)Access to documents relating to Project Tennis688 PART E: Insider trading charge – Conclusions 1.Unsafe and unsatisfactory verdicts695 2.Conclusion: Count 1705 PART F: Reporting charges 1.Introduction706 2.Elements of the reporting charges708 3.Second element – Standard of proof (Ground 25)710 (1)Trial judge's directions on standard of proof712 (2)Miscarriage of justice: Crown references to "balance of probabilities" re s31(1)(b)723 4."Two or more transactions" (Ground 26)731 (1)The factual matters relevant to counts 2 and 3733 (2)The application by the Appellant as to the form of the indictment742 (3)Objection 1 – The indictment does not charge an offence created by s31 of the Act748 (4)Objection 2 – Permitted the jury to convict if there was a reasonable doubt Hannes acquired a cheque752 (5)Objection 3 – Permitted the jury to convict on a basis inconsistent with the Crown case753 (6)Objection 4 – Misdirected the jury on way they should consider the evidence754 (7)Objection 5 – Counts 2 and 3 offend the rule against duplicity758 5.Combination of charges (Ground 27)764 6.Change in Crown case on Count 2 (Ground 28)774 7.Uses of Count 1 evidence on second element of Counts 2 and 3 (Ground 29)786 BASTEN JA: 1. Introduction 1 The Appellant was prosecuted on one charge of 'insider trading' and two charges of structuring financial transactions so as to avoid reporting obligations under the Financial Transaction Reports Act 1988 (Cth) ("the FTR Act"). The details concerning the factual background to the offences and the proceedings against the Appellant are set out in detail in the judgment of Barr and Hall JJ, as are the numerous grounds of appeal raised in relation to each count. I join in that judgment, subject to the following exceptions: (1) In my view, the conviction on count 1 cannot stand: accordingly I do not join in the dismissal of the conviction appeal noted at [705]. (2) My reasoning in support of that conclusion is inconsistent with the approach adopted at [387]-[569]. (3) In relation to counts 2 and 3, I reach the same conclusion, namely that the appeal should be dismissed. However, in relation to the challenge to the form of the pleading and the allegation of "duplicity", addressed by their Honours at [742]-[751] and [758]-[763] respectively, I give my own reasons for rejecting those challenges at [62]-[94] below. 2 The convictions under appeal resulted from a second trial of the Appellant, the first having miscarried for reasons identified by this Court in R v Hannes (2000) 158 FLR 359 ("the first appeal"). The second trial was conducted by Bruce James J and a jury. His Honour's rulings and directions have been subjected to minute scrutiny on the appeal. There is no doubt that his Honour presided over a vigorously contested trial with meticulous care. In all respects bar one, the challenges raised on the appeal must fail. However, and with some reluctance given the history of the matter and the strength of the evidence available to the Crown, I have come to the conclusion that the conviction in relation to the insider trading charge (Count 1) must be quashed. This consequence follows from the manner in which the count was pleaded, taken with the evidence presented by the prosecution in support of it and the manner in which it was left to the jury. The Appellant has now served the sentences imposed in full and it would not be appropriate to subject him to a further trial on Count 1. 3 The basis on which the conviction should be set aside is that it is uncertain, in the sense that it is not clear on what set of facts the jury were satisfied beyond reasonable doubt as to the guilt of the Appellant, and that the trial giving rise to it was materially unfair in the manner explained below. Before considering the nature of that uncertainty and unfairness in relation to the first count, it is necessary to set out the relevant legal principles. 2. Uncertainty of convictions - principles 4 There is a well-established rule that counts in an indictment must deal with one offence and only one offence: see, generally, Archbold, Criminal Pleading, Evidence and Practice (2005) at §1-135 (p61); Walsh v Tattersall (1996) 188 CLR 77 at 104-112 (Kirby J); Jill Hunter "Prosecutors' Pleadings and the Rule Against Duplicity" (1980) 3 UNSWLJ 248. There was no suggestion that Count 1, as formulated and particularised in the present case, gave rise to duplicity on its face. However, there is a further principle, sometimes referred to as "latent duplicity", which operates where the evidence reveals that the charge encompasses more than one offence: see S v The Queen (1989) 168 CLR 266, at 284 (Gaudron and McHugh JJ). S was a case in which the accused had been charged with three counts of incest with his daughter. Each count alleged one act of incest during a 12-month period. As Dawson J noted (at 272) the failure to allege a date did not render the charges bad for insufficiency of particulars. Nevertheless, particulars were sought on the basis that the evidence called by the prosecution might reveal more than one offence committed during each of the periods. Dawson J continued (at p 274): "Each [count in the indictment] charged only one offence and gave rise to no duplicity. Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment. But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this there was what has been called a 'latent ambiguity' in each of the counts: see Johnson v Miller (1937) 59 CLR 467 at 486, per Dixon J. That ambiguity required correction if the applicant was to have a fair trial." Toohey J adopted a similar approach at pp 280-281, identifying a "problem of uncertainty in knowing the charge to be met", and referring to a passage in the judgment of Dixon J in Johnson v Miller (1937) 59 CLR 467, at 489. Each member of the majority in the High Court in S v The Queen considered and applied the principles stated by Dixon J in Johnson v Miller (1937) 59 CLR 467. Thus Gaudron and McHugh JJ described the problem in the following terms at pp 283-4: "The apprehended difficulties which, presumably, led to the unsuccessful applications that the acts charged be particularized or identified became apparent in the course of J's evidence in the trial. … … Those matters reveal a problem which, by reason of its similarity with the problem involved when a count in an indictment charges two or more separate offences, has sometimes been referred to as 'latent duplicity'." 5 After considering the principles underlying the rule against duplicitous counts, their Honours continued at 286-287: "Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged. Ordinarily, those difficulties will be averted by ordering particulars, by amending the indictment, or by putting the prosecution to its election and appropriately confining the evidence to the offences charged. See Johnson v Miller , at pp 480-481, 486, 497-498 and 501. However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice." 6 The judgments in S which referred to 'latent duplicity' or 'latent ambiguity' did not unequivocally endorse the terminology. In a joint judgment in Walsh v Tattersall, 188 CLR at 84, Dawson and Toohey JJ said: "That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield (1973) 57 Cr App R 849 at 855-856. For this reason S v The Queen [168 CLR at 280-281] is, in our view, not a case of duplicity." (The reference to S v The Queen was to the passage in the judgment of Toohey J noted above.) 7 Johnson v Miller was a case in which a publican was charged under the Licensing Act 1932-1935 (SA), s 209(1), which created an offence where "any person is seen coming" out of specified licensed premises, during certain hours on any Sunday. The section also specified defences including that the person "was not on the premises for any purposes … contrary to the provisions of this Act". 8 The prosecutor charged Mr Johnson in relation to "some person whose name is unknown to the police" who was seen coming out of the premises between 9am and 10.45am on a specific date. However, the prosecutor sought to establish not merely that one person had been seen coming out of the premises between those hours, but that 30 persons had been seen to leave the premises. It was clear that, except possibly for a group of persons acting in combination, an offence was committed in respect of each person who was seen to leave the premises. The question was then whether the prosecutor should have been required to identify "one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based". Having posed the question at 489, Dixon J continued: "In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence." His Honour continued at p 491: "Although on its face the complaint may have appeared sufficient, yet when applied to the facts it is found to contain a latent ambiguity, and this, in my opinion, is a defect in particularity." 9 There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities. There are many cases which illustrate this proposition. One referred to in argument in the present case was Montgomery v Stewart (1967) 116 CLR 220, which involved the issue of a company prospectus containing a number of untrue or misleading statements. Each such statement would have been sufficient to give rise to the offence, the prohibited act being the issue of the prospectus. There was only one offence committed by issuing the prospectus, whether there were two or more untrue or misleading statements contained in it. Accordingly, an information alleging several such statements was not bad for duplicity. 10 In Walsh v Tattersall, 188 CLR at pp 107-108, Kirby J said: "Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs. Obviously, nice questions arise as to whether individual acts of supply of prohibited drugs create the same, or substantially the same, offence so as to sustain a single count and to resist an allegation of duplicity." 11 In other cases, relevant to the cash reporting charges (Counts 2 and 3), two or more specific acts may be required before an offence is committed. One such case, discussed in the course of argument, and on the first appeal, was KBT v The Queen (1997) 191 CLR 417. KBT was charged with an offence under s 229B of the Criminal Code (Qld), as then in force. The section stated: (1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years. (1A) A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, … on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions. 12 In the High Court, the issue to be determined was whether the Queensland Court of Appeal had been correct in dismissing an appeal on the basis that there had been no substantial miscarriage of justice, although the trial judge had, wrongly, refused to direct the jury that they must be unanimous as to each of the three or more occasions on which an offence of a sexual nature had been committed. The High Court held that the Court of Appeal had been correct in finding error, but incorrect in refusing to quash the conviction. The majority (Brennan CJ, Toohey, Gaudron and Gummow JJ) described the offence in the following terms at p 422: "The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions." 13 As noted by Kirby J, at p 429: "The original notice of appeal to the Court of Appeal raised three grounds for the appeal against the convictions. The first concerned a complaint that the trial judge should have ordered further particulars of the matters which constituted the evidence in respect of count 2. That ground took that Court to an examination of the requirements of particularity in the pleading and prosecution of criminal offences. Reference was made to the line of authority of this Court up to and including Walsh v Tattersall (1996) 188 CLR 77. The Court of Appeal recognised the particular dangers which general allegations of sexual dealings, lacking in detail, could present for the fair trial of a person accused of an offence against s 229B of the Code. It accepted the over-riding obligation of a trial judge to warn the jury about the dangers inherent in imprecise evidence. It therefore determined that the appellant was entitled to particulars of the offence …, although having regard to the terms of s 229B(1A), he was not entitled to have specific dates or exact circumstances." 14 On that ground also, the Court of Appeal found there had been no substantial miscarriage of justice and that conclusion was not challenged in the High Court: see 191 CLR at 430. 15 The decision of the Queensland Court of Appeal is reported as R v Thompson (1996) 90 A Crim R 416. The Court (constituted by Fitzgerald P and Moynihan and MacKenzie JJ) held that the principles established in Walsh v Tattersall should be followed without departure "to a greater extent than is provided for by material statutory provision": p 419. Their Honours held the particulars should have been provided, but did not directly address the question whether numerous acts could be left to the jury on the basis that it would be sufficient if they unanimously selected three out of a range of possibilities. The Court did, however, note that different types of offence could give rise to different problems in relation to particulars and duplicity, at p 419: "In our opinion, it is necessary that three different situations be distinguished. The first concerns an offence which is constituted by a single occurrence when a number of relevant occurrences are alleged; the majority held that Walsh was such a case. Another concerns offences defined in terms of a course of conduct; the distinction was recognised in Walsh in the joint judgment of Dawson and Toohey JJ, and by Gaudron and Gummow JJ who, with Kirby J, comprised the majority. Section 229B provides for an offence of an intermediate character, the definition of which refers to a specific number (three) [of] individual occurrences." 16 Their Honours continued, at 430: "The passages to which reference has been made highlight a major possible difference between proof of an offence which can (and perhaps must) be proved by a course of conduct, and proof of an offence against s 229B of the Code. To establish an offence against s 229B, even if it proves a course of sexual conduct, the prosecution must prove that the accused person 'as an adult, has … done an act defined to constitute an offence of a sexual nature in relation to the child, … on three or more occasions…'." 17 The significance of KBT will need to be revisited in the context of Counts 2 and 3. For present purposes, the issue to be addressed is the application of these principles in relation to Count 1. 3. Count 1 18 The issue with respect to Count 1, the insider trading charge, is one of 'latent duplicity' or uncertainty. The charge itself involved no element of duplicity, but it created the opportunity for uncertainty by specifying a takeover offer for certain shares at a price "in excess of" $2.00: the actual uncertainty arose only upon a consideration of the evidence. The charge alleged that the Appellant: "between about 17 September 1996 and 23 September 1996 at Sydney in the State of New South Wales, contravenes s 1002G(2) of the Corporations Act 2001 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 affect 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 purchase securities in TNT Limited namely 5000 $2.00 November 1996 option contracts to buy shares in TNT Ltd. Particulars of information (i) It was likely that shares in TNT Limited would be the subject of a takeover offer at a price in excess of $2 per share; and (ii) The Corporate Advisory Division of Macquarie Corporate Finance Limited was advising TNT Limited in connection with that potential takeover and had placed securities in TNT Limited on an embargo list." 19 As will be seen from the material summarised at [104] and following below, the information to which the Appellant was said to have had access within Macquarie Corporate Finance Ltd ("MCF") was information of a specific takeover offer for TNT Ltd shares, being considered by the Dutch Post Office (also known as KPN). It was clear from the material being considered that MCF was advising the board of TNT Ltd as to whether or not it should recommend acceptance of such an offer. Although the parties were at arm's length, the documents do not suggest that there was likely to be a hostile offer, in the sense of one which would not be accepted by the TNT board. 20 By 17 September 1996, there was material available within MCF which suggested that an offer was likely and that KPN was willing to consider a price range of $2.40-$2.50. As noted at [128] below, a document dated 11 September 1996 had recorded that between 1 June and 6 September the Netherlands guilder had strengthened so that "an offer of $2.40 per share should now be equivalent to $2.46". It was anticipated that KPN officers and advisors would arrive in Sydney for discussions with TNT on 12 September 1996. 21 If, as was part of the Crown case, the Appellant had access to that document when he entered the MCF premises after hours on 15 September 1996, he would have understood that an offer for TNT shares of between $2.40-$2.50 was likely (in the sense of probable) within a matter of weeks. If the jury concluded that that information was known to the Appellant, they would likely also have been satisfied, purely on the basis of the TNT share price at that time (which was around $1.59), that this was information which was not generally available to members of the public interested in purchasing or selling TNT shares or options. 22 On the other hand, the information contained in the particulars in the indictment was far less specific. First, it did not identify any specific offeror. Secondly, it identified an offer "at a price in excess of $2 per share". Thirdly, although it identified such an offer as "likely" that word was not defined and the trial judge left the matter to the jury on the basis that it was an ordinary word, the meaning of which they should decide for themselves. On the other hand, the Crown had put to the jury its view that "likely" meant no more than a real and not remote possibility. 23 The particulars in the indictment also identified MCF as advising TNT in connection with "that potential takeover" and as having placed securities in TNT on an embargo list. Those circumstances may have been taken by the jury as indicating a greater degree of likelihood that an offer would be forthcoming than otherwise, or at least that MCF believed that its officers had information not generally available which made it at least unethical that they trade in TNT shares. 24 The Appellant contended that, in various ways, there were real discrepancies between the charge particularised in the indictment and the evidence relied on by the prosecution. In my view there is substance in that complaint. A charge of insider trading requires that the information possessed by an accused person be identified with a reasonable level of precision. It is information which must be not generally available, and about the availability of which the accused must be able to form a reasonable opinion in relation to its materiality. 25 The prosecution case was essentially circumstantial, in the sense that there was no direct evidence that the Appellant had access to the information contained in MCF documents. Nevertheless, the jury could well have inferred from his willingness to invest in what an experienced options broker thought to be a "risky" investment that he did in fact have information of the kind available to him. However, the prosecution was unwilling to rest its case on the proposition that an offer in the range of $2.40-$2.50, within a matter of weeks from 17 September, was at least more probable than not. Rather it insisted that the case be left to the jury on the basis of an offer which might have been no higher than $2.01 and as a possibility which was unlikely in the sense that it would not, on the probabilities, be made. 26 These two positions are significantly different. There was evidence, both by way of stockbroker reports and movements in the share price, which might have satisfied a jury that a real and not remote possibility existed of a takeover at approximately $2 per share, and that such information could readily have been known to the Appellant. That the share price had not reached $2 might have merely reflected a belief that an offer at that price was thought to be only (say) a 25% chance. The point of commonality between the different positions, on which the prosecution relied, was that the particulars of information involved "a takeover offer at a price", meaning a specific offer by a specific offeror. There was no specific offer likely to be made, other than that on which MCF was advising. That was no doubt different from the information in the market place, as Spigelman CJ noted on the first appeal at [276]. However, as his Honour continued: "Those [brokers'] reports deduced from the objective circumstances of the company the possibility of a take-over . The brokers' reports also computed, on a variety of bases, the brokers' valuations, some of which were in excess of $2." [Emphasis in original.] But once informed speculation about the attractiveness of TNT as a takeover target, at a price in excess of $2, was established, and the probability of a takeover was required, the element of materiality became squarely focused on the significance of TNT on the MCF embargo list, an element about which opinions could clearly differ. 27 To understand the significance of these elements of uncertainty, it is necessary to refer to the way in which the prosecution left specific aspects of its case to the jury. (1) Meaning of "likely" 28 On the indictment presented at the first trial and considered on the first appeal, the takeover offer was not described as "likely" but rather it was alleged that there was "a prospect that shares in TNT would be the subject of a takeover offer" and that there was "a prospect that the offer would be" at a price in excess of $2 per share. The use of this language was considered by Spigelman CJ on the first appeal in relation to the element which required that the information possessed by the Appellant be not generally available. His Honour stated at 158 FLR 359, [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'." 29 The use of the term "likely" in the indictment presently under consideration was a deliberate departure from the earlier indictment. The prosecution explained to the jury in its final address (Tcpt 3022): "When we say likely, what I mean is that there is a real and not remote chance and it is something more than a bare possibility." This language was repeated on various occasions during the address: see, eg, Tcpt 3104 and 3131-3132. However, the trial judge determined that the meaning of the word "likely" was for the jury to determine and was not a matter on which he would give directions, nor was it a matter upon which defence counsel should address: Tcpt p 3237. In his Summing-up (p 393) the trial judge told the jury: "The Crown Prosecutor put a submission to you about what the word 'likely' means. I direct you to disregard that submission. That is not in any way a criticism of the Crown Prosecutor, nor should the direction I now give you be taken by you as expressing any view of mine on whether the Crown Prosecutor's submission is correct or not. It is a matter entirely for you." 30 There is a difficulty with this approach. It appears to reflect the conventional view that the ordinary meaning of a word is a question of fact, not law: see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395. Accordingly, the meaning of the word was for the jury to determine, it being the tribunal of fact. On the other hand, an indictment is not a statute and there is a real danger that to leave such a matter to the jury without instruction is to permit them to chose between a takeover offer which was no more than a real and not remote possibility, and one which was more probable than not. In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643, dealing with evaluating loss under the civil law, the joint judgment in the High Court referred to a chance as "so low as to be regarded as speculative" when it was "say less than 1%". Under the Refugees Convention, an applicant for refugee status must show a "real chance" of persecution, "a far-fetched possibility of persecution" being excluded; nevertheless an applicant will satisfy that test if there is a 10% chance of the persecution occurring: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (McHugh J). 31 This variability in usage was also reflected in passages dealing with the likely price per share, extracted below. As will be seen, the prosecutor clearly implied that an offer at $2.45 was probable, when seeking to prove materiality. 32 On the appeal from the first trial, Spigelman CJ was content to dismiss, as largely beside the point, brokers' reports containing information as to the mere possibility of a takeover offer, being material of a different character from that which was particularised: see [276]. The differential nature of the available information and that particularized tends, however, to evaporate if the particulars were to be satisfied on the basis of a 10% chance of a takeover. 33 This uncertainty acquires heightened significance from the elements of the charge. The jury must identify the information possessed by the Appellant with a degree of precision, in order to determine, beyond reasonable doubt, that it was material and that it was not generally available. (2) A price in excess of $2 34 The reason for selecting the price at which the takeover offer was likely to be made as $2 was not expressly addressed in argument, but may have derived from the fact that the securities in question were $2 option contracts. However, that figure was not necessarily decisive of the value of the options, nor was it consistent with the evidence of the specific offer in question. So far as the value of the securities was concerned, so long as there remained a period before the options expired, the value of the option contracts could well have risen above $2 if a takeover proposal had eventuated at a price short of $2. That would have happened if the market had factored in the possibility of a further higher offer. On the other hand, a firm takeover offer, accepted by the Board of TNT, at $2.01 would arguably have left the purchaser who paid 2 cents for a $2 option bearing a loss, because the cost of a share to the purchaser would be $2.02 (disregarding brokerage). 35 It is convenient to consider the manner in which the prosecution presented its case to the jury, in this respect. First, the prosecution addressed in relation to the materiality of the information in a passage which included the following proposition (Tcpt 3023): "Again the Crown will submit to you that there is unlikely in our submission to be any great difficulty that you will have in concluding materiality. Looking at the seller side, for instance why anybody would sell $2 call options for 1.5 cents to 2 cents knowing there was likely to be a takeover would be out of their minds. So that's materiality." That statement implies a relatively high degree of likelihood of a takeover, and at a price which would at least exceed $2.02. 36 Further, senior counsel for the Director stated (at Tcpt 3029): "We say that it would make no sense for Mr Hannes to have spent such a lot of money on those options unless he knew what was going to happen and that which in fact did happen. Namely that somebody from KPN came and offered in excess of $2 for TNT shares. Within about 3 weeks Mr Hannes' conduct had yielded a profit of around $2 million. This represented $50,000 for every cent over $2.02. This in our submission is obviously important, if not critical, when you come to consider whether or not Mr Hannes had the information of which we speak." Again, this suggests a high level of likelihood of an offer in excess of $2.02 and indeed incorporates a specific calculation undertaken at the takeover price of $2.45 per share. The prosecutor continued (Tcpt 3030): "According to documents that were later produced and which were accessible to, and we submit accessed, by Mr Hannes, in Hong Kong, KPN had an initial price range of $2.20 to $2.40 but a gap of 10 cents emerged. In other words KPN indicated that it was thinking of offering up to $2.40 and TNT was thinking of $2.50." 37 Later in the address the prosecutor stated (Tcpt 3106): "May I just remind you, members of the jury, that one of the things we say is that you can infer Mr Hannes had knowledge from the fact that he bought $2 call options. In fact you can infer that he had knowledge that a takeover would come well in excess of $2 at $2.45." 38 In addressing as to whether the information was 'not generally available', the prosecutor returned to language reflecting the particulars, namely a takeover at a price "in excess of $2": Tcpt 3137. For example, he stated: "We are talking about an actual likelihood that there would be a takeover in excess of $2, an actual likelihood. What was happening in the market shows that it was not generally available. If it was known that it was likely there would be a takeover in excess of $2, the share price would move up to $2." Again, although in the passages set out earlier the prosecutor left the question of likelihood as being satisfied by a real and not remote possibility, it is clear that these last statements could only be true if the likelihood approached certainty, because, if a price ceiling is assumed, the market would be expected to apply a discount for a significant level of uncertainty. 39 Shortly thereafter, the prosecutor returned to the question of materiality and referred to the evidence of the options broker, Mr Staehli, in order to demonstrate that a reasonable person would expect the information to have a material effect on the price of the securities. At Tcpt 3141, he stated: "The first point we make is focusing on the moment on [sic] buying, that Mr Hannes himself bought these highly risky out of the money options. They were so risky that Mr Staehli required written instructions. Mr Staehli thought it was a waste of money to buy them without some special knowledge. It's almost self-evident that if you had knowledge that the price of them would go in excess of $2 that that would be material that would be likely to influence you. Then, in a passage likely to confuse he said at Tcpt 3142: Remember … the defence will put to you that the prosecution has put that Mr Hannes had better information than the information particularised, and we do put that and you do have to focus on the particular information particularised which is knowledge of a likelihood of takeover coming in excess of $2. That doesn't mean you can't have regard to what Mr Hannes actually did. With a starting price at $1.56 with two and a half months to run. A likely takeover of $2 would self-evidently have an impact on the price." (During the course of the address, the prosecutor variously referred to the price of TNT shares at the date of the purchase of the option contracts as a $1.56 or a $1.59: these were the closing prices on 17 and 18 September 1996 respectively.) 40 Had the case been left to the jury on the basis that the information possessed by the Appellant was of the probability (that is a chance of a takeover of at least, say, 55%) the Crown would also have had a case which was, in practical terms, unanswerable in relation to materiality of the information and in relation to it being not generally available. However, that was not the case particularised, nor was it the case as left to the jury. There is no doubt that the disparity between the evidence and the particulars gave the trial judge cause for concern and he sought to direct the jury in relation to this aspect of the case. 41 In the Summing-up (pp 46-50) his Honour gave the following directions: "Considered as a combination or totality, the information particularised in the indictment includes information, not merely that it was likely that shares in TNT Ltd would be the subject of a takeover offer at a price in excess of $2 per share, but that it was likely that shares in TNT Ltd would be the subject of a specific potential takeover from a specific offeror, in connection with which the Corporate Advisory Division of Macquarie Corporate Finance was advising TNT. You must carefully distinguish the information particularised in the indictment from other information about which evidence has been given. For example, evidence has been given that on 2 October 1996 there was an announcement of an actual takeover offer for TNT at a price of $2.45 per share. That information is different in important respects from the information particularised in the indictment. Information about a takeover offer which has actually been made is different from information about the likelihood of a takeover offer, even the likelihood of a specific takeover. The information particularised in the indictment includes information that it was likely that shares in TNT Ltd would be the subject of a takeover offer at a price in excess of $2 per share, which would include any price exceeding $2 per share, by however small an amount. The information about the actual takeover offer announced on 2 October includes information that the price offered was $2.45 per share, that is a specific price exceeding $2 by an amount of 45 cents." Pausing at that point, his Honour had been at pains to distinguish evidence of what happened after the purchase of the securities from the information particularised, which must have been possessed by the Appellant at the time of purchase, although the open-ended particular as to price tended to blur the distinction. 42 His Honour continued: "You must also carefully distinguish the information particularised in the indictment from information conveyed in any conversation or at any meeting at which the accused was not present and hence could not have heard what was said." 43 His Honour then gave the direction as to the meaning of "likely" set out at [28] above. His Honour also gave directions as to the requirement that the prosecution prove that the accused was possessed of "all parts or some part or parts of the information particularised in the indictment" (Summing up, p 48) a direction which he later reversed, requiring that all elements be proved: Summing-up, pp 93-94. That change in directions led his Honour to repeat a number of the directions given previously, seeking to minimise confusion. In his original directions, his Honour turned next to the availability of specific information to the Appellant (Summing-up, pp 48-49): "It is part of the Crown case but by no means the whole of the Crown case on this element, that the accused became possessed of the information particularised in the indictment or some part or parts of it by accessing documents kept in the office of the Corporate Advisory Division, either stored in computers or in hard copies which revealed to him the information particularised in the indictment or part or parts of it. … The accused could have become possessed of information of the likelihood of a take-over offer at a price in excess of $2 per share, by becoming possessed of more specific information, that it was likely that shares in TNT Ltd would be the subject of a take-over offer at a specific price well in excess of $2 per share, for example, $2.40 or $2.45 or thereabouts. An argument put to you by the Crown was that the accused did become possessed of more specific information and it was possession of much more specific information that led him to acquire options with a strike price of $2 rather than options with any other strike price, because $2 options would maximise the profit if the share price rose above $2.25. Information that it was likely that shares in TNT would be the subject of a take-over offer at a price of $2.40 or $2.45 per share, or thereabouts, would be information that it was likely that shares in TNT would be the subject of a takeover offer at a price in excess of $2 per share. However, you must keep in mind that wherever … the expression 'the information particularised in the indictment' is used, it has the meaning … 'It was likely that shares in TNT Ltd would be the subject of a takeover offer in a price in excess of $2 per share,' that is at a price in excess of $2 per share, by however small an amount. You will have to keep that constantly in mind in considering the subsequent elements of the offence, elements 3, 4 and 5." 44 His Honour later confirmed each of these directions (Summing-up, pp 86-87) including the fact that the price of $2.40 or $2.45 or thereabouts was a price "in excess of $2 per share", and continued (p 87): "However, I caution you that the information particularised in the indictment refers to the likelihood of a takeover offer merely at a price in excess of $2 per share, by however small an amount." 45 This caution was repeated with respect to the various elements, including the proposition that the jury must be satisfied beyond reasonable doubt "that it was not generally available information that it was likely that shares in TNT would be the subject of a specific takeover offer at a price in excess of $2 per share": p 105. 46 The care with which his Honour formulated, presented and repeated directions to the jury accentuated rather than diminished the inherent uncertainty in the prosecution case. The case as left with the jury involved a series of steps. The first was to identify the information which the Appellant possessed, which had to be all of the information particularised in the indictment. The jury was then to take a further series of sequential steps, in order to satisfy itself that the other elements of the offence, including that the information was material and was not generally available, were satisfied. However, the dual elements of uncertainty rendered the nature of this task obscure. If the particularised information could be satisfied by a finding that there was a real and not remote possibility of a takeover offer at $2.01, but also by a finding that a takeover offer at $2.45 was more probable than not, and that the Appellant in fact possessed the latter (more precise) knowledge, how was the jury to apply the tests relating to materiality and non-general availability to the hypothetical (and less emphatic) information? 47 The fact that some of the information which could have been derived from the available information at MCF was significantly more precise and certain than that identified in the particulars to the indictment indicates a level of ambiguity or uncertainty in the charge. It was artificial to direct the jury to consider the charge on the basis of a possible offer at $2.01, if it were satisfied beyond reasonable doubt that the information in fact possessed by the Appellant was of a probable offer of between $2.40 and $2.50 per share. The position as pleaded did not, in that sense, conform to the evidence called. The ambiguity or uncertainty affected not only a consideration of the information possessed by the Appellant, but also the non-general availability and materiality of the information as pleaded. The potential for prejudice was significant. (3) Is this conclusion inconsistent with rulings on the first appeal? 48 As the trial judge noted during the course of the defence address (Tcpt 3290): "The sort of problem that I am wrestling with does not seem to have arisen at the first trial. My impression from reading the judgment of the Chief Justice in the Court of Criminal Appeal is that at the first trial the items of information in paragraph 2 were not really disputed. It was not really disputed that the accused was possessed of them and that they were not generally available. However, this trial has been conducted differently." That impression of the first trial is obtained by reference to [224]-[279] in the judgment of the Chief Justice. I agree with the trial judge that the issues in the present trial developed in a different manner. Further, as noted above, the information was particularised by reference to "an element of probability" which was removed by the prosecution in reformulating the indictment for the purposes of the retrial. Accordingly, I do not think that the judgment of this Court in relation to the first trial is inconsistent with the conclusion reached above in relation to the second trial. (4) Application of proviso 49 An irregularity in the trial process having been identified, it is necessary to consider what effect that may have on the outcome of the appeal. The answer to that question turns on the operation of s 6(1) of the Criminal Appeal Act 1912 (NSW), which provides as follows: 6.(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 50 The preceding discussion does not establish that the verdict of the jury was, as such, unreasonable or one that cannot be supported having regard to the evidence, which is the first basis upon which a conviction should be set aside under s 6(1). What has been established is that there was a wrong decision on a question of law, within the second limb of s 6(1). That conclusion gives rise to a further question as to whether the conviction "should be set aside" on that ground. The third limb of s 6(1) is established where there has been "a miscarriage of justice" arising "on any other ground". Such a ground might include an exercise of discretion which has miscarried, on a ground which might satisfy the principles in House v The King (1936) 55 CLR 499, but not amount to a wrong decision on a question of law. Assuming that the second or third limb is satisfied, it is then necessary to consider the operation of the proviso to s 6(1) which empowers (but does not in terms require) the Court to dismiss the appeal if it considers "that no substantial miscarriage of justice has actually occurred". 51 Where the proviso is engaged, two things would actually have occurred: the first is that the jury has, through its verdict, found the Appellant guilty of an offence; the second is that the verdict has resulted from a legally flawed trial. The proviso appears to require an assessment of the likely effect on the verdict of the legal error or other flaw in the trial process. As explained by the High Court in Weiss v The Queen (2005) 80 ALJR 444, the purpose of the proviso is to allow for departure from the rule that "every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed", and hence to an order for re-trial or acquittal, where that entitlement is breached: see Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514, discussed in Weiss at [27]. The question is how the extent of departure from that rule should be assessed. 52 The traditional approach held that it was necessary to consider what the jury which heard the case would have done, absent identified error, or, alternatively, what a 'reasonable jury' would have done. (The latter test avoided the need to infer conclusions in fact drawn by the jury in reaching its verdict.) The traditional approach was rejected in Weiss: at [35] and [36]. Once it is accepted that deference to the jury's 'constitutional' role is qualified by the power of an appellate court to set aside a verdict found to be "unreasonable" (in accordance with the first limb of s 6(1)) or by a finding of a miscarriage of justice (pursuant to the third limb) there can be no objection to the appellate court reaching its own conclusion as to whether a substantial miscarriage of justice actually occurred. Formulation of a test for appellate intervention need not involve deference to the role of the jury; that role is in any event largely guaranteed in the case of appellate intervention, because the usual order which will result will be for a retrial. 53 Accordingly, the appellate court must make its own assessment of the course of the trial and of the evidence. It must do that both in identifying appellable error within the first and third limbs of the section and for the purposes of the proviso. As with a civil trial, there will be limitations on the ability of the appellate court to form a different view based only on the record of the trial: see Weiss at [41], referring to Fox v Percy (2003) 214 CLR 118 at [23]. In establishing error, this difficulty may militate against the Appellant; however, once error has been identified, the constraints work the other way. The power of the Court to dismiss the appeal is only engaged once affirmatively satisfied that no substantial miscarriage of justice actually occurred. That cannot occur unless the Court is satisfied beyond reasonable doubt, on the admissible evidence, and on a correct understanding of the law, that the Appellant was guilty: see Weiss at [44]. That is a necessary, but not necessarily sufficient, condition for the application of the proviso. 54 As the High Court noted, there are dangers in identifying tests in the abstract, which may assist in determining when a substantial miscarriage of justice has occurred. The possibility of miscarriage is a matter considered by trial judges (and appellate courts) on a daily basis in determining whether the probative value of evidence is outweighed by the danger of unfair prejudice: see, eg, Evidence Act 1995, ss 135 and 137. Similarly, the somewhat vague epithet "substantial" invokes an imprecise but understandable qualification. Thus, in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [13] Gleeson CJ explained, in relation to similar language relevant to the scope of judicial review of administrative action: "The concept of 'manifest' defect in jurisdiction, or 'manifest' fraud, has entered into the taxonomy of error in this field of discourse. The idea that there are degrees of error, or that obviousness should make a difference between one kind of fraud and another, is not always easy to grasp. But it plays a significant part in other forms of judicial review. For example, the principles according to which a court of appeal may interfere with a primary judge's findings of fact, or exercise of discretion, are expressed in terms such as 'palpably misused [an] advantage', 'glaringly improbable', 'inconsistent with facts incontrovertibly established', and 'plainly unjust': see, eg, House v The King (1936) 55 CLR 499 at 505; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. Unless adjectives such as 'palpable', 'incontrovertible', 'plain', or 'manifest' are used only for rhetorical effect, then in the context of review of decision-making, whether judicial or administrative, they convey an idea that there are degrees of strictness of scrutiny to which decisions may be subjected. Such an idea is influential in ordinary appellate judicial review, and it is hardly surprising to see it engaged in the related area of judicial review of administrative action." 55 In the present context, the word "substantial" must be given effect. As explained in Weiss at [18]: "By using the words 'substantial' and 'actually occurred' in the proviso, the legislature evidently intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure. On that understanding of the section as a whole, the word 'substantial', in the phrase 'substantial miscarriage of justice', was more than mere ornamentation." 56 The phrase, taken as a whole, can have two points of reference: first, it may refer to the extent of departure from the legal rules and procedures governing a criminal trial; secondly, it may be directed to the likely effect of the departure on the verdict. Both senses may be relevant. An example of the first factor may be seen in the comment in Weiss at [45]: "What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind." Cases involving the second factor may arise where there is a need to consider the prejudicial effect of otherwise relevant evidence. 57 The question in the present case is whether the uncertainty in the indictment and evidence identified above gave rise to a substantial miscarriage of justice. In S v The Queen, Dawson J noted at p 277: "There have been cases in which it has been held that latent ambiguity or even duplicity in an indictment does not necessarily lead to a substantial miscarriage of justice. … But in those cases either no embarrassment or prejudice was alleged or no point was taken at the trial. In any event, the earlier cases must be read subject to the decision of this Court in Johnson v Miller in which it was held that a complaint was rightly dismissed because of the failure of the prosecution to cure a latent ambiguity by identifying the one transaction out of a number upon which it relied. … At all events, where there is real ambiguity and the point is taken, as it was in this case, failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice which precludes the application of the proviso … ." Similar conclusions were reached by Toohey J (p 283) and Gaudron and McHugh JJ (at p 288); cf Brennan J (dissenting) at pp 271-272. 58 Applying the approach mandated by Weiss, there was a substantial miscarriage in the present case, based both on the reasoning in S v The Queen and upon two considerations specific to this case. The first is that the uncertainty must be superimposed on the change in direction which took place almost halfway through the judge's summing-up, as to whether or not it was necessary for the prosecution to establish all elements of the information particularised, or only some part or parts thereof. In a sense that change may have simplified the exercise required to be undertaken by the jury, in that they did not need to establish which particulars had been proved beyond reasonable doubt, in order that the subsequent elements of materiality and non-general availability, might be considered only in relation to those particulars. However, the change in directions would not have assisted in ensuring that the jury understood clearly and definitively how to deal with the uncertainty in the prosecution case as particularised and the potential divergence between that case and the case as presented in the evidence. 59 Secondly, it was in my view unfair to the defence, as counsel asserted on numerous occasions, to have the Director plead one case and proceed with evidence directed to a case which would give rise to quite different considerations in establishing materiality and non-general availability. 60 It is at least likely (in the sense of more probable than not) that the jury acted on the basis of information that KPN would probably make an offer of $2.45, being satisfied beyond reasonable doubt that the Appellant possessed that information when he purchased the securities. But if they tested materiality and non-general availability against the information he in fact possessed, those elements would have been determined otherwise than by reference to a likely (in the sense of possible) takeover at a price potentially as low as $2.01. In that way real ambiguity (in the sense of two separate sets of fact) was presented to the jury; that created substantial unfairness and therefore a substantial miscarriage of justice. The conviction on the first count should be set aside on that ground. This is the second trial of the Appellant on this charge. He has served his sentence. A verdict of acquittal should be substituted. 61 In other respects I concur in the reasoning of Barr and Hall JJ in relation to the other grounds of appeal raised with respect to Count 1. 4. Counts 2 and 3 62 As noted above, each of counts 2 and 3 involved an alleged offence under s 31(1) of the FTR Act. That section provided: 31 Offence to conduct transactions so as to avoid reporting requirements (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. 63 The term "cash transaction" was defined in s 3 to mean "a transaction involving the physical transfer of currency from one person to another". The term "significant cash transaction" was defined to mean "a cash transaction involving the transfer of currency of not less than $10,000 in value". 64 The FTR Act also uses a phrase "non-reportable cash transaction" which is defined, relevantly for present purposes, as a cash transaction that is not a significant cash transaction. 65 Count 2 in the indictment was directed to a series of withdrawals undertaken by the Appellant from a bank account in his name with the Commonwealth Bank of Australia. Count 2 states that he - 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. Particulars of Non-reportable Cash Transactions Date Type of Transaction 9 September 1996 A withdrawal of $9,000 in cash from account no. 2009 0069 4685 in the name Simon Gautier Hannes held with the Commonwealth Bank of Australia. The withdrawal was made at the Neutral Bay Branch of the Commonwealth Bank of Australia. 9 September 1996 A withdrawal of $9,900 in cash from account no. 2009 0069 4685 in the name Simon Gautier Hannes held with the Commonwealth Bank of Australia. The withdrawal was made at the Crows Nest Branch of the Commonwealth Bank of Australia. 9 September 1996 A withdrawal of $9,000 in cash from account no. 2009 0069 4685 in the name Simon Gautier Hannes held with the Commonwealth Bank of Australia. The withdrawal was made at the Liverpool/Castlereagh Streets Branch of the Commonwealth Bank of Australia. 9 September 1996 A withdrawal of $9,000 in cash from account no. 2009 0069 4685 in the name Simon Gautier Hannes held with the Commonwealth Bank of Australia. The withdrawal was made at the Park/Castlereagh Streets Branch of the Commonwealth Bank of Australia. 9 September 1996 A withdrawal of $9,000 in cash from account no. 2009 0069 4685 in the name Simon Gautier Hannes held with the Commonwealth Bank of Australia. The withdrawal was made at the Town Hall Branch of the Commonwealth Bank of Australia. 9 September 1996 A withdrawal of $6,000 in cash from account no. 2009 0069 4685 in the name Simon Gautier Hannes held with the Commonwealth Bank of Australia. The withdrawal was made at the Wynyard Branch of the Commonwealth Bank of Australia. 66 It was arguable that the charge was uncertain on its face, in adopting the statutory language of "two or more non-reportable cash transactions". Where a statutory provision defines an offence disjunctively in more than one way, it will be necessary to determine whether there are two possible offences or two descriptions of a single offence. In the present case, the statutory language leaves it open to the prosecutor to identify two transactions or some greater number: what is clear from the nature of the offence is that there must be more than one transaction in order for there to be an evasion of the reporting requirements. Thus, two transactions constitute a minimum, and there is no doubt that the offence can be committed by entering into a series of six transactions. However, where there are indeed six transactions, but two would be sufficient, there is, potentially, a multiplicity of offences created by taking any possible combination of two or more transactions. (The Appellant submitted that there were 720 combinations and permutations in relation to Count 2. In fact there are many fewer relevant combinations, but it may be accepted that they are numerous.) 67 Count 3 made similar allegations in relation to a total of nine cash payments by which it was alleged the Appellant obtained nine bank cheques payable to Perpetual Trustee Ltd – Ord Minnett Cash Management Trust. Each was in an amount of less than $10,000. Again the charge alleged that he was party to "two or more non-reportable cash transactions". The number of possible combinations or permutations is, of course, significantly greater than the figure for Count 2, although not as high as the 3,628,800 asserted by the Appellant. (That figure was not contradicted, but would appear to be based on ten variables, calculated as 10 factorial.) (1) Count left to jury on alternative bases 68 On 24 September 2001, well before the commencement of the trial, the Appellant filed a notice of motion seeking to have the words "two or more" deleted in each of counts 2 and 3, pursuant to s 64 of the Criminal Procedure Act 1986 (NSW), and to have the Crown specify, and furnish particulars of, the alleged transactions the subject of the counts. The argument now sought to be raised was thus squarely raised at a preliminary stage, but was rejected by the trial judge in a judgment delivered on 9 October 2001. His Honour noted the Crown argument in the following terms at [7] in that judgment: "It was submitted by the Crown in relation to both count 2 and count 3 that the Crown can allege more than two transactions; that so far as s 31(1)(a) is concerned, it is sufficient for the Crown to prove, as to at least two (but not necessarily all) of the transactions alleged, that s 31(1)(a) is satisfied, provided that all members of the jury are unanimous that s 31(1)(a) is satisfied as to the same two transactions; and that, so far as s 31(1)(b) is concerned, it is sufficient for the Crown to prove as to at least two (but not necessarily all) of the transactions which have been alleged by the Crown and as to which the Crown has proved that s 31(1)(a) is satisfied, that s 31(1)(b) is satisfied, provided that all members of the jury are unanimous that s 31(1)(b) is satisfied as to the same two transactions." 69 His Honour upheld this submission on the basis that the issue had been determined by this Court on the first appeal. 70 In keeping with this interlocutory ruling, his Honour gave directions to the jury at the trial consistently with the case put by the prosecution. Thus, in the course of summing up (at p 125) his Honour noted that there were six transactions particularised in relation to count 2 and noted the prosecution's submission that the jury would be satisfied as to every one of the six that it was a "non-reportable cash transaction" to which the accused was a party. His Honour directed: "However, it would be sufficient to establish the first element, if the Crown proved beyond reasonable doubt that the accused was a party merely to at least two or more non-reportable cash transactions out of the six particularised, provided that all twelve of you were unanimous with respect to the same two transactions out of the six particularised, that the transaction occurred, that it was a non-reportable cash transaction as defined under the Act and that the accused was a party to it." His Honour continued (at p 126): "If all twelve of you are satisfied only as to some of the transactions particularised, being the same transactions, that the first element of the offence has been proved beyond reasonable doubt, then it is only those transactions as to which all 12 of you are satisfied beyond reasonable doubt that the first element has been proved that you take into account in considering the next element of the offence." The prosecution had placed its primary case firmly on the basis that all six transactions were ones to which the Appellant was a party and his Honour suggested that this was something of which they might well be satisfied. 71 He then gave directions in relation to the second element of the offence, namely the purpose for which it was transacted. He noted that it was possible that they might be satisfied that the Appellant was a party to a particular transaction and yet not be satisfied as to its purpose. His Honour gave an example (at p 137): "For example, it might perhaps be the case – I am not expressing any opinion – you might not all be satisfied that it would be reasonable to conclude that the withdrawal of $6,000 which was made at the Wynyard branch, being a withdrawal of rather less than $10,000, was conducted for the dominant purpose of ensuring that the currency involved in that transaction was transferred in a manner and form which would not give rise to a significant cash transaction. I previously drew your attention to the expression 'two or more', in s 31(1) of the Act and in the indictment and in the Second and Third Counts Elements document. The Crown is required to prove the second element of the offence only with respect to two or more transactions, provided that all 12 of you are unanimous that the element has been proved as to the same two or more transactions." His Honour gave similar directions in relation to count 3: see, eg, pp 159-160 and 163; the directions were repeated at 169. Thus, the case unambiguously left to the jury in relation to counts 2 and 3 was that they did not need to be satisfied that all of the transactions identified in the particulars were established beyond reasonable doubt: it was sufficient if any two (or more than two) in each count were established beyond reasonable doubt, so long as they were agreed on the same transactions. (2) Relevant principles 72 Issues of duplicity and uncertainty have already been dealt with, with respect to Count 1. In Montgomery v Stewart (1967) 116 CLR 220, it was suggested that where a prospectus contained more than one untrue statement, it would be unfair for a defendant to be convicted in relation to a single charge which had particularised several untrue statements, but where the prosecution had failed to establish the untruth of any of the statements relied upon, bar one. Barwick CJ (in the majority) dealt with the matter as follows (116 CLR at 224): "It was also said in support of the suggested construction of the section that if more than one statement is particularized as being claimed to be untrue, a defendant who had successfully established either the truth or immateriality or his reasonable belief in the truth or immateriality of some of the statements, upon conviction as to another statement or other statements would have recorded against him a conviction which particularised all the statements which had been charged as being untrue. But in truth this is a result which will not eventuate if due attention is paid to the terms of the conviction when drawn up for the purposes of record. The record of conviction should set out only the statements which were proved to be untrue and in respect of which the defendant has been convicted." 73 As noted in relation to Count 1, Barwick CJ also suggested that where there is one offence, presented on several bases, the proper form of conviction may require disclosure of the basis upon which the offence was committed. However, that principle cannot be applied where a number of separate offences have been left to the jury: even to ask the jury to identify the basis on which they convicted might be seen to demonstrate the duplicity of the count. In any event, no such attempt at precision was sought in the present case. If the approach adopted by the prosecution is to be upheld, it must be on the basis that the rule against duplicity does not apply to Counts 2 and 3 as pleaded and as presented to the jury. That conclusion may be accepted if, on the correct analysis, the counts should be understood to allege one transaction or criminal enterprise, as opposed to a series of disparate acts, any one of which constituted an offence, if proved. In a statement approved on several occasions in Australia, as noted by Kirby J in Walsh v Tattersall, 188 CLR at 104, Lord Diplock stated in Director of Public Prosecutions v Merriman [1973] AC 584 at 607: "Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment." Recent examples of the application of this principle may be found in Stanton v Abernathy (1990) 19 NSWLR 656, 662 (Gleeson CJ): Regina v Giam (1999) 104 A Crim R 416 (Spigelman CJ), Regina v Moussad [1999] NSWCCA 337 (Smart AJ) and R v Zampogna [2003] 85 SASR 56 (Duggan J). 74 As Kirby J also noted in Walsh, it is difficult to formulate a precise test as to when this approach should be accepted and there is no doubt that questions of fact and degree are presented: 188 CLR at 108. However, despite his Honour's view that little help is supplied by inviting the Court to look at "the gist of the offence", as suggested by Taylor J in Montgomery v Stewart, 116 CLR at 229 (noted in Walsh, 188 CLR at 108-109) nevertheless, that test is arguably a principled one and provides a valuable starting point. It requires the Court to consider the elements of the specific offence, as defined, in such a case as this, by reference to the statutory terminology. At least in the present case, that approach should be adopted. (3) Effect of judgment on first appeal 75 Before addressing the issue in those terms, a question arises as to whether this Court dealt with this issue on the first appeal and should simply follow its earlier decision. This is a matter of some importance, as well as some difficulty. In written submissions, the prosecutor stated: "A similar ground … was raised by the appellant in R v Hannes (2000) 158 FLR 359. The point must have been rejected for the Court to reach the decision that it did (at [426]-[438]). The question of whether the jury had to be satisfied beyond reasonable doubt as to the same transactions presupposed that they could be so satisfied in respect of two, three or more such transactions even though more may be particularised. It is clear from the judgment that this Court followed the High Court interpretation of similar legislation in KBT v The Queen (1997) 191 CLR 417." However, the reference at [422] in the judgment of Studdert J to KBT v The Queen was directed to the issue of whether the jury should have been directed to find unanimously with respect to those transactions about which they were satisfied. 76 The substantial basis upon which the first appeal was upheld was the failure to give directions in accordance with Weissensteiner v The Queen (1993) 178 CLR 217. The Court expressly held that this error infected both the insider trading conviction and the convictions under the FTR Act. Studdert J, agreeing with Spigelman CJ, noted that conclusion at [436]. In addition, in considering the specific complaints with respect to counts 2 and 3, his Honour concluded at [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." 77 His Honour also concluded that there was no other deficiency in the summing-up in relation to the second count: at [435]. 78 In relation to count 3, Studdert J was satisfied that no direction requiring that the jury had to be unanimous in their finding as to the same transactions was required, because that effect was achieved in relation to seven cheques which were obtained in the name "M. Booth" by a direction that they had to be satisfied beyond reasonable doubt that the Appellant was "M. Booth": at [454]. The particulars in relation to counts 2 and 3 in the indictment on the first appeal were relevantly identical with the particulars now under consideration. Thus, although there is no ruling at the first appeal that the jury were entitled to select two or more from a smorgasbord of possible combinations, it appears to have been assumed by the Court that that course was open. 79 In his judgment of 9 October 2001, James J noted that there had been a ground of appeal addressed to this issue on the first trial. However, on the first appeal, Studdert J noted the submission of senior counsel for the Appellant in relation to the counts in the following terms at [421]: "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." 80 There is nothing in the judgments on the first appeal which suggests that a ground based upon duplicity was in fact considered and determined. It was open to the Court to assume, against the Appellant, that duplicity was not made out, in order to consider whether other grounds were established and, in particular, the complaint that, assuming some but not all of the transactions needed to be established beyond reasonable doubt, no adequate direction was given in relation to unanimity. At one point in his judgment of 9 October 2001, James J noted that it was "implicit in Studdert J's reasoning" on the first appeal that the jury could convict on the basis of fewer than all the transactions particularised: at [38]. On the other hand, at [36] and [37] his Honour stated that the assumption was "established" by the judgment of Studdert J. There may be doubt as to whether the stronger proposition should be accepted, there being nothing in the reasoning of the Court on the first appeal which addressed the law with respect to duplicity and the cases which had been relied upon by the Appellant in that regard: see Judgment of 9 October 2001 at [12], where reference was made in written submissions to Montgomery v Stewart and Walsh v Tattersall. 81 In a sense all of the discussion of these issues was obiter on the first appeal, because the convictions were set aside on a different basis. Nevertheless, this Court would generally follow an earlier reasoned judgment, especially if it were in relation to the same indictment, if it were directly on point. However, in relation to a criminal conviction, an appellant should not be precluded from raising an issue following a second trial where the issue was not expressly addressed and determined on the first appeal. This Court should resolve any doubt in the Appellant's favour and treat the issue as unresolved. (4) Application of principles 82 It is necessary therefore to consider "the gist of the offence". So far as the statutory scheme is concerned, s 31(1)(b) assumes that there is a specific number of identifiable transactions, which have an "aggregated value", which took place over a particular period of time, at identifiable intervals of time and at particular locations. It is those matters which are identified as relevant factors, which may be taken into account in considering whether the sole or dominant purpose of carrying out the transactions in that manner was to evade the reporting requirements. Even without that internal assistance, it would be readily inferred that the transactions needed to be identified with particularity in order to determine whether a specific offence had been committed. 83 Statutory offences may be defined by numerical characteristics. A characteristic of an offence under s 31(1) of the FTR Act is that it involves more than one cash transaction. However, it does not follow that an indictment can allege in one count that there has been more than one such transaction without specifying an exact number and identifying relevant particulars. In the present case, relevant particulars were given, but within the limits so identified, the number and combination of transactions relied on were not specified. 84 There is authority which supports the approach contended for by the Appellant. In R v Hnoudis [1998] SADC 3941 (3 December 1998) Judge Sulan in the District Court of South Australia accepted a contention that it was "incumbent upon the prosecution to indicate the significant cash transaction which the prosecution alleged the accused was attempting to avoid, and the prosecution must nominate the non-reportable cash transactions to which it is allege[d] the accused was a party in breaching the Act": at [13]. Given that there were ten separate payments alleged in that case, amounting to $82,500, the significant cash transaction sought to be avoided was said to be the amount of $82,500, rather than any other figure. In contrast, the prosecutor argued, as did the prosecutor in the present case, that the jury could have regard to all ten or any combination of two or more in concluding that there had been a breach of the section, so long as the combined total amount in respect of those taken into account would have given rise to "a significant cash transaction", being the statutory description of a transaction of or exceeding $10,000. The trial judge noted that the prosecution contentions would, if accepted, "create a situation of great uncertainty": at [20]. As his Honour also noted, the ignorance of the trial judge as to the basis for conviction would mean that he or she would need to sentence without knowing how many transactions were involved, the period over which they were conducted or the total amount of the significant cash transaction avoided: at [22]. His Honour rejected the approach proposed by the prosecution on the basis that it required plain and unambiguous language, which must apply despite the uncertainty and potential unfairness which it would create. His Honour found no such language in s 31(1). 85 The Appellant also obtained some limited support from the judgment of Hulme J in this Court in the matter of R v Leask [1999] NSWCCA 33 at [56]. His Honour noted, by way of dictum: "The question in paragraph (b) is whether it would be reasonable to conclude that the person conducted 'the transactions' in the manner and form they took for the purpose specified. It would seem to me that 'the transactions' are those referred to in paragraph (a), that is all of them. However it is appropriate to record that whether this is the correct approach to the interpretation of the subsection was not argued, nor was it suggested that of the transactions referred to in a count, some might have been conducted with the purpose referred to in the subsection and some not." This statement is highly qualified, but may give some support to the Appellant. On the other hand, it may involve a further construction of s 31(1) not so far considered, namely that the jury can select those transactions which it is satisfied fall within paragraph (a) but must then consider the matters set out in paragraph (b) only in respect of the transactions held to fall within par (a). The directions given by the trial judge in the present case related only to the specific elements of s 31(1)(b), and not to consideration of the matters set out in sub-paragraphs (i) and (ii). 86 The correct approach must ultimately be a matter of statutory construction. The cases discussed above provide assistance, but are not determinative. Thus, KBT v The Queen (1997) 191 CLR 417 indicates that where there is a single offence, constituted by three or more acts, the prosecution may plead more than three acts and the accused may be convicted of the offence so long as the jury agree in relation to the acts proved beyond reasonable doubt and provided that those acts satisfy the numerical minimum. The existence of a single offence of maintaining an unlawful relationship of a sexual nature with a child was established by s 229B(1) of the Criminal Code. Subsection (1A) provided that a person shall not be convicted of "the offence" unless acts done on three or more occasions were proved. 87 In Walsh v Tattersall (1996) 188 CLR 77, the High Court divided as to whether the statute provided for one or more than one offence in circumstances where a payment or benefit had been obtained by dishonest means. The minority held that the reference to "any payment or other benefit" might include a number of payments or benefits, but there would be only one offence where there was only one dishonest pretence. Multiple dishonest pretences would give rise to separate offences: at p 83 (Dawson and Toohey JJ). By contrast, the majority held that, properly construed, the statute created a discrete offence, completed upon the receipt of any one payment or benefit: p 91 (Gaudron and Gummow JJ) and p 101 (Kirby J). 88 In the present case, s 31 of the FTR Act creates a single offence of conducting two or more transactions with a particular purpose so as to achieve a specified result, namely transfer of currency in a manner that would not give rise to a significant cash transaction. If the amount involved in each of a number of cash transactions exceeding $5,000, then any combination of those transactions could amount to a separate offence if done for the purpose of avoiding a significant cash transaction. Nevertheless, it is unlikely that the legislature intended the reference to "two or more" transactions to operate only as appropriate in relation to the minimum necessary to avoid a significant cash transaction. In other words, five transactions might be necessary to constitute an offence if each amounted to only $2,000, but it would not follow that five transactions of $9,000 would not equally constitute a single offence. Once this is accepted, there can be no duplicity in the latter case, although in a theoretical sense a different form of pleading would be possible. 89 That leaves the question of uncertainty. But if there is no objection in principle to pleading a number of circumstances beyond that necessary to establish the offence, so long as the jury is clearly directed that, if not satisfied as to all the acts particularised then it must be unanimous as to those about which it is satisfied, a proposition accepted in KBT v The Queen, then uncertainty is not a fatal flaw in the indictment. 90 If this conclusion is correct, the reasoning of Sulan DCJ in Hnoudis, despite its apparent attraction, must be erroneous. The error arises from the somewhat unusual form of s 31(1) of the FTR Act. Thus, item (B), "the aggregated value of the transactions" is not an element of the offence, but a matter to which regard must be had, for the purpose of determining whether "it would be reasonable to conclude" that the person conducted the transactions for the prohibited purpose. The value need not be identified for the purpose of defining the offence. 91 The underlying element of the offence under s 31(1) of the FTR Act is that the transactions were conducted for a particular purpose. Although there needed to be at least two transactions, four transactions would not necessarily give rise to two offences, nor would six give rise to three offences. Where six transactions are pleaded, the jury may be satisfied beyond reasonable doubt, and unanimously, that four took place. Alternatively, they may be satisfied that all six took place but that the relevant purposive element was established only in relation to four. It would follow, in either case, that the transaction accepted by the jury was less extensive than that pleaded by the Crown, but it was not in substance a different set of transactions and thus a different offence. 92 Accordingly, the complaints of duplicity and uncertainty, contained in ground 26 should be rejected. 93 In other respects, I agree with the reasoning given in the judgment of Barr and Hall JJ for rejecting the grounds of appeal relating to count 2. The appeal in relation to the conviction on count 2 should be dismissed. (5) Conclusions: count 3 94 In relation to duplicity and uncertainty, the same principles have application in relation to count 3, with the same conclusion. In other respects I agree with the reasons given by Barr and Hall JJ. The appeal in relation to the conviction on count 3 should also be dismissed. 95 The application for leave to appeal in relation to the sentences imposed by the trial judge was not pressed and should also be dismissed. 96 BARR and HALL JJ: On 11 September 2002 the Appellant, Simon Gautier Hannes, was found guilty by a jury of one charge of insider trading under s1002G(2) of the Corporations Act 2001 (Cth) ("the insider trading charge"), and two counts under s31(1) of the Financial Transaction Reports Act 1988 (Cth) ("the FTR Act") of conducting financial transactions to avoid the reporting obligations which would otherwise have arisen under that Act ("the reporting charges"). On 13 December 2002, the trial judge, James J, imposed a term of imprisonment of two years and six months imprisonment with a non-parole period of one year and six months. 97 The Appellant appealed to this Court against the convictions and sought leave to appeal against the sentences. On the hearing of the appeal he abandoned the application for leave to appeal against the sentences, having already fully served them. PART A: General 1. Background 98 The Appellant had been tried and convicted of the same offences in the District Court in 1999. However, on 1 December 2000 those convictions were quashed by this Court: Regina v Hannes (2000) 158 FLR 359. It will be necessary to make further reference below to this judgment, which will be referred to as "the first appeal". Understandably, there are similarities between the issues which were raised on that appeal and those which now arise. However, the primary basis upon which the conviction arising from the first trial was set aside concerned the direction by the trial judge in that trial as to the manner in which the jury should consider the absence of evidence from the accused about particular matters. No such issue arises in the present appeal. Further, there were differences in the manner in which the first count was particularised and in which the prosecution presented its case before the second jury. The extent to which such changes were significant was a matter of dispute on the appeal, the parties taking different positions as to the relevance of the discussion of similar matters in the judgment of the first appeal. 99 On 16 May 2002 the Appellant was re-arraigned on the insider trading count under s1002G(2) of the Corporations Act 2001 and the two counts of "structuring" contrary to s31 of the FTR Act. On 23 May 2002, a jury was empanelled; the re-trial commenced on that date and continued until 9 September 2002. Before the jury were empanelled the trial judge, James J, spent some thirty-five days between October 2001 and May 2002 dealing with objections to evidence and other matters. 100 The grounds of appeal in this matter were grouped under 15 headings and were numbered 1-32. However, several of the grounds were divided into parts, so that one ground might deal with several pieces of evidence or might separately complain about the admission of evidence and the manner in which it was addressed during the summing-up to the jury. However, in his clear and comprehensive submissions, the Appellant helpfully grouped the grounds under 10 headings. 101 Broadly speaking, the same structure has been adopted below, but not the same order. Logically, it would be appropriate to deal with questions of admissibility before dealing with complaints about the summing-up to the jury. Questions of admissibility are dealt with first, but it has also been thought convenient to deal with complaints in relation to the summing-up so far as they relate to the same evidence, in the section which deals with admissibility of that evidence. 102 Similarly, questions of law relating to the scope of the indictment, or the form of the charges, could not helpfully be separated out from complaints about the manner in which the judge explained those issues to the jury. 103 The focus of the prosecution's case was upon events that occurred in July-October 1996. At that time the Appellant held a position as an executive director of the Corporate Advisory Division of Macquarie Corporate Finance Ltd ("MCF") which in turn was a subsidiary of Macquarie Bank Ltd. The Corporate Advisory Division occupied an open space area on level 20 in a building located in Bond Street, Sydney. 104 TNT Ltd ("TNT") had been a long-standing client of the Corporate Advisory Division. TNT owned 50% of the shares in Ansett Airlines, an ailing company. Early in 1996 MCF was advising TNT about a possible sale of the Ansett shares to Air New Zealand. The job was called "Project Warrior". Two members of the division, Mr Joyce and Mr Murdoch, set about the preliminary work of valuing TNT. In May 1996, Mr Poole, an executive director of the division, and the person in charge of Project Warrior, held a meeting in Hong Kong concerning a possible transaction between TNT and the Dutch Post Office, known as KPN. It was said that the most likely form of the proposed transaction would be a friendly takeover of TNT by KPN. 105 A team was formed within the Corporate Advisory Division in relation to the TNT/KPN project known initially as "Project Mercury" and later known as "Project Tennis". The group with responsibility for the project became known as "the Tennis team" and, apart from Mr Poole, Mr Joyce and Mr Murdoch, included Ms Martin-Rousselot and Mr Wentworth. 106 Information about the matter was highly confidential and, perhaps apart from the most senior officials at Macquarie Bank, was supposed to be confined to the personnel designated to advise TNT. The Appellant was not a member of the Tennis team but had a desk on the floor that those personnel used. He had access to their records. The prosecution case was that the Appellant knew that Macquarie Bank was advising TNT and that KPN might acquire TNT. If it did, the price of TNT shares was likely to rise. Using this knowledge, the Appellant purchased a number of options which gave him, up to a day late in November 1996, the right to purchase shares in TNT at a particular price. In due course a merger was announced. The price of TNT shares rose. The circumstances giving rise to the charges under the FTR Act concerned the manner in which the Appellant withdrew sums of money from his bank account and in which he purchased bank cheques in order to establish an account with a stockbroker for the purchase of the options. 107 On 17 September 1996 a person rang and spoke to a broker, Mr Staehli at Ord Minnett Ltd and requested him to purchase "$2 November 1996" call options over TNT shares using moneys in a cash management trust account (which totalled $90,900). The prosecution case was that the person who placed the order was the Appellant, using the name "M. Booth". 108 As noted above MCF was a company associated with Macquarie Bank. Its Corporate Advisory Division occupied an office on Level 20 of Macquarie Bank premises which was secure. Anyone desiring access to it had to have a key to direct the lift to that level and another key to unlock the door on that level. Access to level 20 was not generally available to officers of Macquarie Bank. 109 Those advising TNT in Project Warrior and Project Tennis worked on level 20. They created documents which were kept in files on or near their desks. They created electronic records in their computers. No particular security, such as a password, was used for access to the computer records. The office was open plan. The Appellant's desk was on level 20 next to Ms Martin-Rousselot's. He could gain access through his computer terminal to Tennis team electronic records. 110 Executives of Macquarie Bank were not permitted to trade in securities without reference to the Equities Division of Macquarie Bank and then only through brokers approved by Macquarie Bank. They were forbidden to deal at all in securities of organisations which Macquarie Bank was advising. Macquarie Bank kept a list, called the embargo list, of such organisations. TNT's name was placed on the embargo list at the commencement of Project Warrior and remained on it at all material times. 111 The Appellant took leave in mid-1996, but returned to work on 1 July 1996. On 1 August he went on indefinite leave but had continuing obligations towards at least one of the clients of MCF and retained authority to enter level 20. Accordingly, he kept his desk, his computer and his keys. 112 The Appellant knew that MCF was advising TNT. During the week commencing 8 July he asked Mr Murdoch what value he had come up with for TNT and Mr Murdoch told him that it was in a range from $2.20 or $2.25 to $3.10 or $3.20. The Appellant asked Mr Murdoch whether he did not consider the value too high and Mr Murdoch defended his position. 113 On 15 July a valuation, prepared by members of the Tennis team, was submitted to the Board of TNT. The suggested range was $2.22 to $2.94. 114 On 22 July a dinner was held at a Japanese restaurant in Sydney for executive directors of Macquarie Bank. The Appellant was present. There was a document there which referred to Project Tennis and one of the executive directors, not the Appellant, asked what Project Tennis was. Mr Poole said that it was a major restructuring for TNT. 115 On the weekend of 25-27 July 1996 a conference was held at Mt Bulla, Victoria. The Appellant attended. Mr Lucas, head of Macquarie Corporate Finance, gave a slide presentation. One slide referred to Project Tennis and to an estimated possible fee to Macquarie Bank of $5-10 million. 116 On 27 or 28 August a document called "Tennis Next Steps" was prepared, stating that KPN was prepared to pay up to $2.40 per share and that TNT was prepared to accept $2.50. That document would have been available for access through the Appellant's computer terminal. 117 On 2 September TNT announced the sale of its Ansett shares. TNT's shares were then trading at about $1.60. They had not been at $2.00 since October 1995. 118 On 4 September the Appellant sent a facsimile to Leveraged Equities directing the transfer of $200,000 into his account at the Commonwealth Bank of Australia, Wynyard. On 5 September Leveraged Equities transferred the funds to the Appellant's bank account as directed. 119 Also on 5 September a man calling himself Mark Booth, attended the offices of a firm called Mail Boxes Etc at Mosman, entered into an agreement to rent a mailbox for the address identified as Suite 140, 656 Military Road, Mosman and paid the price in cash. 120 On 6 September the Appellant transferred $50,000 of the funds in his Commonwealth Bank account at Wynyard to the account of a company he controlled. He also withdrew two amounts of $10,000 in cash from the Chatswood and the Circular Quay branches of the Commonwealth Bank. Those branches reported those withdrawals electronically to Austrac, the agency administering the FTR Act. The bank did not inform the Appellant that it had made those reports. 121 The Appellant then went to the Pitt Street and Martin Place branch of the Commonwealth Bank and withdrew the sum of $20,000. A bank officer, Mr Bullock, required him to sign a Significant Cash Transaction Report form, which was headed "$10,000 or more". 122 After that, the Appellant went to a number of other branches and withdrew sums in cash, but the amount was always less than $10,000. At Crows Nest he withdrew $9,900 and at each of Neutral Bay, Liverpool and Castlereagh Streets City, Park and Castlereagh Streets and Town Hall he withdrew $9,000. He withdrew $6,000 from the Wynyard branch of the Bank. 123 On the same day a man calling himself M Booth purchased for cash a $9,000 bank cheque from the Commonwealth Bank at Martin Place. 124 On 9 September a man calling himself M Booth purchased from nine different branches of four banks, nine further bank cheques. Eight of them were for the sum of $9,000 each and the ninth for $9,900. The banks used were the Commonwealth Bank, Australia and New Zealand Bank, National Australia Bank and Westpac Bank. Two of the branches were in the city. Of the rest, two were in Camperdown but at different banks, three were in Leichhardt but at different banks, two in Roseville but at different banks and the last at Annandale. 125 Each of the bank cheques was made payable to and was paid into the Ord Minnett cash management trust account. 126 One of the branches at which a bank cheque was purchased was the Leichhardt branch of the National Australia Bank. The security camera at that bank took a photograph of the purchaser. When an investigating police officer showed the photograph to the Appellant he said (AB 7161): "That could be me." "It's probably me, because it looks a bit like me, doesn't it?," and "Well, it's not a great photo, but it could be me, yeah." 127 On 10 September a document entitled "Tennis – Timetable" was written in draft form proposing a number of steps, including these: "12 and 13 September: Discussions in Sydney between advisors of TNT and KPN about draft documents, financials and timing. 16-18 September: Meeting in Sydney of principals of TNT and KPN. 30 September: Warrior completion date. 7 October: Announce Tennis in Australia, followed by announcements around the world. TNT to provide KPN with register details." 128 On 11 September a document called "Project Tennis" was written, recording, inter alia, that between 1 June and 6 September the Netherlands guilder had strengthened by 2.5% and that "an offer of $2.40 per share should now be equivalent to $2.46". On 12 September KPN personnel arrived in Sydney for discussions with TNT. 129 On a number of occasions, security records showed that the Appellant entered level 20 of Macquarie Bank's premises after hours. That occurred frequently after his return from leave on 1 July and prior to him going on leave on 1 August, namely on 1, 7, 9, 18, 19, 30 and 31 July. After going on indefinite leave, he entered the premises after hours on 21 August and on 8 and 15 September. 130 Between 14 and 18 September meetings took place in Sydney between members of the CAD and Goldman Sachs, who were advising KPN. 131 On 16 September a document called "Tennis Update" was written, setting out the history of the negotiations and a summary of the most recent discussions between MCF and Goldman Sachs and formulating possible responses to arguments likely to be put forward by Goldman Sachs. 132 On 17 September a man calling himself Mark Booth telephoned Mr Staehli, a stockbroker at the firm Ord Minnett. Mr Staehli did not know Mark Booth. Booth said he wanted to trade in options and asked the price of TNT November $2.00 call options. Mr Staehli quoted him a price of 1-3¢ per share and told him that a fair price might be 1.5-2¢ per share. He said that it would be a risky investment. Booth said he wanted to invest $90,000. Mr Staehli said that Booth would have to apply in writing and asked his address so that he could post him the documents. Booth responded by asking Mr Staehli to leave them for collection at the counter, and he did so. On the following day Mr Staehli found an envelope on his desk. He did not know how it had got there. It contained a typed letter of instructions and the forms that Mr Staehli had left for Mark Booth, completed in capitals and handwritten. The forms comprised an ASX options client agreement (Exhibit 3), an application for an account in the name of Mr Mark Booth (Exhibit 4), a sponsorship agreement (Exhibit 5), and an Ord Minnett application form (Exhibit 175). The letter and forms were signed "M Booth". The letter, which became Exhibit 2, contained the following passage: "Dear Mr Staehli, As discussed, this letter is written confirmation of my instructions. They are as follows and you may act on them until further written notice from me. Please acquire TNT call options with a strike price of $2.00 and maturing in November 1996. You indicated that the indicative range today was 1 to 3 cents. I would be prepared to pay up to 2 cents per option. Obviously, if you can acquire them at a lower price this would be appreciated." 133 The sponsorship agreement form required the insertion of the signature, the name and the address of a witness to M Booth's execution. Those parts of the agreement were complete. Under a signature appeared the name: "Alexi Voltraint" and the address: "52 Railway Rd, Petersham." 134 There is no Railway Road at Petersham. There is a Railway Street, but the occupant of the house at number 52 was not and had never heard of Alexi Voltraint. 135 On 19 September a man calling himself Mark Booth attended the premises of Voicemail, 160 Goulburn Street Surry Hills and purchased, for cash, a telephone answering service. 136 On 20 September Mr Staehli informed Booth by telephone that he had purchased 5,000 option contracts and that there was $1,500 left of the amount he had deposited in the trust account. Booth was annoyed that not all the amount deposited had been spent. 137 On 30 September Booth telephoned Mr Staehli and observed that there had been no movement in the price of TNT shares. He asked whether he should reduce his holding and Mr Staehli advised him to wait. Things were left there. 138 On 1 October TNT announced that it had sold its Ansett shares. 139 On 2 October there was a public announcement of the takeover of TNT by KPN at $2.45 per TNT share. On the same day Mr Staehli told Booth by telephone about this announcement and Booth expressed surprise. 140 On 3 October Booth wrote a letter to Mr Staehli directing him, among other things, to hold the options until 4 November and then begin selling them in lots likely to yield the best price. The letter (Exhibit 10) began: "Dear Andrew, I apologise for not being able to ring earlier today, but with having to deal with everything before I depart, I was told you were not available when I rang." 141 Booth also said in the letter: "I somewhat stumbled into such a large option holding when you were able to secure many more options than I expected…" The author noted that there was an inquiry into trading in TNT options. 142 The Australian Securities Commission commenced proceedings in the Federal Court of Australia naming Mark Booth as defendant. On 4 October 1996 it obtained a court order restraining the distribution of the proceeds of sale of the options. Mark Booth never entered any appearance and no claim was made for any order authorising payment out of the proceeds. 143 On 4 October Mr Staehli received a further letter from Booth enclosing a statement by M Booth dated 3 October 1996 denying the possession of any insider information, claiming that he had not expected to be able to acquire more than 1,000 to 2,000 contracts, with consequent surprise that he had ended up with so many, and generally explaining why, relying on information that was generally available, he had formed the opinion that there might be an increase in the price of shares in TNT. 144 On or about 12 November Mr Staehli received a further letter from M Booth, apparently posted in Australia on 11 November. The author directed Ord Minnett to pay all moneys in the trust account as recommended by the Australian Securities Commission. 145 The Appellant left Australia on 14 November and returned on 17 December. 146 On 17 January 1997 Federal police executed a search warrant at the Appellant's house and took away certain things, including the Appellant's computer. A number of records that had been "deleted" from the computer but which had not been completely obliterated were later retrieved. A printout (Exhibit 213) contained passages of script identical or similar to some of the passages in Exhibits 2 and 10 quoted above. It also contained a fragment of a letter that appeared to have been addressed to Maiboxes Etc about the payment of rent. The records repeatedly included the name "M Booth" and the address "Suite 140, 650 Military Road Mosman 2088". 147 Also seized were writing pads, one of which, a 'Victory' brand notebook (Exhibit 233), contained pages bearing handwriting and others of which bore indentations apparently caused by writing on pages since removed. The pages bearing the indentations were examined and processed, in a way called ESDA, that enabled the original writing to be deciphered. They became Exhibits 253-261 inclusive. The defence accepted them at trial as having possibly been written by the accused. They contained information that the person who dealt with Leveraged Equities and Ord Minnett must have possessed. They also contained material personal to the Appellant. One page contained a number of signatures "M Booth" arranged in a vertical column. Another, Exhibit 261, entitled "Should I visit ASC or not", and referred to as the "pros and cons document", asserted the innocence of the author and treated the author and "Mark" as different persons. Another page bore the indentation "Suite 140". 148 Another document seized was the Appellant's 1996 diary, Exhibit 199. The handwritten entry for the evening of 16 October was: ³ 5 ö Railway Petersham (The figure "1" appeared to have been crossed out and the street number "50" changed to "51"). Mrs Tricia Myers lived at 51 Railway Street Petersham. She was a member of a book club whose members met in one another's houses. The Appellant was a member and had visited her house. Assuming that the entry was to record such a meeting, the arrangement would probably have been made at the meeting of the club on 12 September. 149 Police also seized a computer floppy disk, which contained the texts of an investment agreement dated 5 September 1996 between persons referred to as SH and MS-L and three letters, two dated 23 and 27 September respectively and one undated, apparently written to the Appellant by a man called Mark. Those records had not been made by the Appellant's computer. They became Exhibits D71 to D74 inclusive. 150 Also on 17 January the Appellant was interviewed by Federal Agents McLean and Scadden. The interview was recorded and a transcript put into evidence. The questions and answers included these passages (AB 7106-7120): "Q Do you want to tell me anything about the allegations I've raised with you? A Okay. Well – I've seen the warrant actually and I've sort of drifted through the warrant and seen these allegations. Let me – there's some things I – oh. First let me say that I'm innocent of the allegations. So I suppose the main one I'm focusing on which is to mind – there seem to be a lot of technical ones here, but I'm really not on top of it – but the insider trading allegation. I'd like to say that I'm innocent of that. I'd like to say, however – I'd like to tell you some things that happened – and once again I'm not on top of the dates. But late in 1996, I agreed with an individual, whose name I'm not going to name – I don't know how I should refer to him, but I agreed with this individual -- MR SCADDEN: Q Mr X is fine with me? A Okay, you can call him Mr X – whom I've known for some time to – I suppose the way of putting it is to enter into him with an investment syndicate. The deal basically was we would each put in some money and then the money would be invested in securities here and overseas in an attempt to make a profit. The moneys weren't – that we were intending to do it weren't massive. I wasn't going to invest any more than $100,000 and that means he would have put in the same amount and then we would share in the proceeds. I'm a director of Macquarie Bank. As a director of Macquarie Bank we have a whole series of restrictions on what we can invest in. Although I've for a long time wanted to invest in an investment syndicate that's why I basically haven't, because of these restrictions when you're working in the bank were so onerous. Anyway, one of the restrictions – well, I'm not sure whether it's actually written down there, but I've always thought one of the prudent restrictions was if we invest in a stock we have to have that cleared by the bank under what we call our embargo list. And so similarly, it seems to me – and it probably isn't a rule of the bank; I'm not specifically aware that if one has an investment syndicate similarly anything that was – investment that was made by that syndicate I think should have been cleared. So the individual with whom I entered or decided to embark on this, I told them that and they were aware of that. The deal was basically going to be that he would do all the administration and the investments, et cetera, and I would provide half the money, because I felt that he could add to the investments we could make. I decided – I'm actually a – I retired from my job effectively. Q Could you tell me when? A I beg your pardon? Q From when? A It was the 1st of August, I think, technically my last day in the office. I think it was the 1st of August. Where was I? MR SCADDEN: Sorry. MS McLEAN: Q You said you'd effectively retired from the bank? A Oh, that's right. I retired from the bank and I suppose I'd done that in the knowledge that I was financially secure for the foreseeable future. I have a family who I'm quite close to. One of them is my sister -- Q Would you like to take a break? A No, one of them is my sister, whose name is Mignon – well, Mignon Hannes, who's married and her name is Mignon Booth, Mignon Booth, B-O-O-- MR SCADDEN: Q How do you spell Mignon? A M-I-G-N-O-N Q M-I-G-- A N-O-N Q -- N-O-N – and her married name is Booth? A Booth. She's my youngest sister; she's a nurse and she gets a nurse's salary and therefore is not very wealthy, and I decided that the money that I was going to invest in the syndicate I would, in my mind at least, use for Mignon - … … A …So I decided that I would invest that money, put the $100,000 in, and any profits I would use for Mignon, to make Mignon's situation secure. She's recently had a child. So, okay, the individual – we got to the point – we'd been discussing it for a while; we got to the point where he said, "Well, let's do it" and he – we agreed that we'd kick in the hundred thousand. I met him and he asked for the hundred thousand dollars to be the initial investment and he – he is a – well, I don't know what his nationality is, but he's an Englishman; he lives in England. He wanted – and I understood that, you know, he – at some stage, I didn't know exactly when it was, but at some stage indicated that, you know – I don't know exactly what his tax planning either was, but anyway, he asked for a hundred thousand and he asked if I could get it in cash. I – when I agreed to that, I thought, yes – I said we'd get it in cash. And he wanted week delivery, you know, I'd get it by date X. I haven't got the dates, because I can't recall the dates, quite frankly. It wasn't significant at the time. I went to – I went – the day I decided to get the cash I'd agreed – arranged to meet him in town to give him the cash and I thought, you know, no point in having that much cash around for too long – look, I won't get into too much depth about that - so I decided I'd get the cash out that day. I went to see the – my bank, which is the Commonwealth Bank in Roseville and filled out a withdrawal slip for $100,000 cash. The lady took it to the counter and I don't know – I'm only going into this detail, because there is this thing in here about the financial transactions Act. So I don't know exactly what the offence is, but I'm telling you that bit about – that's why I'm going into this spiel about it. 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 cash on the premises. I learned 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?" and she said, "You should ring the Commonwealth Bank in Wynyard". She said – my – well, I actually have a Taxola branch I think – yeah, I have a - an account with the Commonwealth Bank in the name of Taxola and an account with the Commonwealth Bank in my personal name. We must have gone through those details and she said, "Try the Wynyard branch, right, in the city. They might have that much cash". I didn't – 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 will 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 proceeded to do. 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. Then the other things I would like to say I think it's sort of – I don't think I need legal advice to say this – is that I – the arrangements we had come to, we didn't write it down in a legal sort of thing, but the arrangement we had come to in discussions is that he could make the investments, but he would consult me in advance. Some time afterwards, he informed me that he had made an investment in TNT. That – I got extremely upset because – firstly, that was against the rules and, secondly, TNT is a client of Macquarie Bank and I was aware that there was work going on for TNT. I had never on any occasion talked to him about the work that Macquarie Bank was doing for TNT. If he had any knowledge of that, it was not through me. I got very upset. At the same time, obviously, I can't tell him that – I couldn't tell him that there was this transaction going on for TNT. I got very upset that he had not consulted me beforehand. I got so upset that he – that he immediately agreed to reverse the transaction, and he told me on that occasion that he would reverse the transaction. The next thing that happened some time later was the TNT – I read in the newspaper of the announcement of the TNT bid. And then some time later I read in the newspaper – it wasn't – some time later I read in the newspaper about M Booth – and my sister's name is Mignon Booth and I don't know any Mark Booth and I'm not related to any Mark Booth. I saw him then after that occurred and – to discuss what to do. I didn't know myself what the right thing to do was. I thought one possibility was to immediately come and see the ASC, which he wasn't keen on and quite frankly I didn't – I wasn't relishing, so what I agreed with him was that all the profits – all the moneys would be returned to the people from whom they were got; you know, the money would be handed over to the ASC. And he undertook to me that that would occur. He then left Australia. He told me he had to leave. He left Australia. I didn't have contact numbers or anything else for him. Time passed and I got very concerned that – what was going on, right. I hadn't read in the newspapers that the money had been returned or anything else like that, and so I got on a plane to London in November and I went to London and I managed to locate him and he told me the moneys had been returned; he told me again that he had no knowledge of what was going to happen with TNT; and we discussed once again what to do. And I at that stage seriously discussed with him that he should come back to Australia and we should go and see the ASC together. He was not keen on that, although he didn't rule it out, and I came back to Australia. But he had told me that moneys had been returned some time ago. And I – I agreed with him – we discussed – I anticipated – I 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. … Q You mentioned something along the lines of restrictions are in place at Macquarie, such as a thing called an embargo list? A Yes. Q What is that list? A If anyone who works in the relevant area – and my area would be the relevant area – wants to make investment in securities, they must do that through Macquarie Underwriting, if it's in their personal name, and they must – Macquarie Equities, sorry – and the procedure is you must ring up a certain person and indicate the security you want to invest in and whether you want to buy or sell. If then any – if it is on a list that we – if that stock is then on a list that we call the embargo list, you will be told whether or not you can trade. Then there is a whole series of procedures about what goes on the embargo list and stocks go on the embargo list on which anyone within our Chinese walls would have inside information and in some circumstances other stocks go on. But certainly stocks like TNT, on which – whether we were at the point where we had inside – where there was an active transaction or an active client would be on that list. I'd be astonished if it were not on that list. Q Upon your leaving Macquarie Corporate Finance on the date given, being 1 August 1996, did you have a view that TNT was a restricted stock? A Well, my procedure with my clients, of which TNT was not one – but my procedure with my clients is if I had a client for which I was regularly doing work, I would have it on the embargo list for years after that time. So I wouldn't everyday review whether I did or did not have any inside information and take it off the list. That was impractical and subject to abuse. So TNT had been sort of an active client, I would say, for – I mean, 12 months at least, and so I would have imagined it – if somebody had asked me, I would have imagined it would be on that list – whether or not we had inside information, it should have been on that list. It would have been unseemly for an employee of Macquarie Corporate Finance to be trading in that stock – if not illegal. Q You mentioned a name Mark Booth? A Mmm–hmm. Q And you indicated to me that you knew a person with the surname Booth, M Booth, being Mignon Booth? A That's right. Q Do you know how the Mark became part of this name Booth? Did you make that decision? A Yeah – no. Mignon is my sister. I've made investments for her in the past from time to time, so -- … Q You've said that Mr X – again, I'm happy to leave it with Mr X – told you to put money into the cash management account at Ord Minnett? A Well, he asked me to get cash and then he asked me to get cheques for the cash management trust. Q You said that Mr X told you there is a mail box? A There was a mail box – that was part of the administrative arrangements." 151 The prosecution has to prove that the information about the takeover was not generally available. Its case depended principally on the evidence of Mr Goldberg, a stockbroker with experience in the analysis of transport industry stocks and a consequent understanding of the relationship between the values of shares and options in transport companies. He had made a study of TNT. He said that there had been no public comment in September 1996 about any takeover of TNT. During the four months ended October 1996 its shares traded in the range $1.30 to $1.60. Nothing in the movement of the price of the shares suggested to him that any takeover was likely. 152 The prosecution case on the capacity of the information materially to affect the price of options relied principally on the evidence of another expert witness, Mr Holubko, Manager, Derivatives Trading Operations, Australian Stock Exchange. His opinion was that knowledge of the information particularised would, if generally available, have had a material effect on the price of the options. The evidence of these and other witnesses will be discussed in more detail in the context of the relevant grounds of appeal. 153 The prosecution asserted that the Appellant knew that TNT's name had been entered on the embargo list because Macquarie Bank was advising it about a possible takeover. He knew about Project Tennis and that TNT's shares were being valued. He knew that the parties' offers were only 10 cents apart in a range that well exceeded the current market price of TNT shares and the option strike price of $2.00 per share. His knowledge of those matters derived not only from his conversation with Mr Murdoch and what he had heard about Project Tennis at the restaurant and Mt Bulla. The prosecution said that he must have read Project Tennis documents during his private visits to level 20. The very placing of the order for the $2.00 options implied the possession of knowledge not available to the market, in view of the facts that the shares were then trading at $1.60 and that Mr Staehli considered and advised that the investment was risky. In these circumstances, the Appellant could not openly purchase the options, so he dealt secretly and in a false name with a broker with whom he was not permitted to deal. Although the name he used could have derived from his sister's, the moneys were not beneficially hers. For the same reason he took care never to let Mr Staehli see his face. 154 As the prosecution put it, when he was required to sign a document under the FTR Act he realised that the transfer of sums exceeding $10,000 would be reported. In case further reports should reveal his secret he dealt thereafter in sums always slightly less than $10,000. The man referred to as "X" and as "MS-L" on the floppy disk records was an invention of the Appellant. The floppy disk documents were fabricated by the Appellant. The recorded times of their creation, which were contemporary with the events they described, were unreliable, the computer clock having been manipulated. The ESDA "pros and cons document" was a self-serving fabrication. Finally, the prosecution argued, the information he relied on was not generally available. If it had been, a reasonable person would have expected it to have a material effect on the price of the options. 155 The defence case was that the prosecution had not proved that the Appellant had any more knowledge than that which any astute investor might have acquired. If he knew that TNT was on the embargo list because of Operation Warrior, it did not follow that he knew that it had remained on the list after the public announcement of the sale of the Ansett shares. The occasions relied on by the prosecution when the subject of Project Tennis was discussed all took place well before the Appellant went on leave on 1 August. Although the Appellant had withdrawn the moneys he had not necessarily purchased all the cheques. His answers in the interview did not deal with them all. The several bank officers' descriptions of their customers varied, suggesting that more than one person might have bought cheques. Someone other than the Appellant opened the account at Ord Minnett, knowing that the Appellant wished to use his sister's name. Someone other than the Appellant had opened the Voicemail and Mailbox Etc accounts. The Appellant's reason for withdrawing funds in small amounts was explained in the interview and should be accepted. The existence of the floppy disk records supported the conclusion that MS-L existed and was the investor. The "pros and cons document" was a genuine record of the Appellant's musings. No reasonable person would consider an offer at a price in excess of $2.00 per share likely to have a material effect on the value of the options. 2. The legal framework of charges 156 The events the subject of the various charges occurred in 1996. Accordingly, the legal framework against which the Appellant's conduct is to be judged was that in force in 1996. At that time, offences relating to insider trading were dealt with in Chapter 7 (Part 7.11, Div 2A) of The Corporations Law, as then in force. Accordingly, the relevant statutory provisions have been taken from the Corporations Law, although it has long since been repealed and replaced by the Corporations Act 2001. 157 Because the second trial occurred after the repeal of the Corporations Law, it was necessary to determine at that time the transitional provisions under which the earlier law continued to operate. Although there is no challenge to the conclusion that the old law continued to apply in relation to the conduct of the Appellant, it is convenient to identify at this stage the provisions which had that effect. 158 As appears from the judgment of this Court in relation to the first appeal, at 158 FLR 359 at [5], the indictment then before the Court alleged an offence under s1002G(2) of the Corporations Law. In the indictment the subject of the re-trial, the charge refers to the same section, identified by reference to the Corporations Act 2001. Senior Counsel for the prosecution advised the trial judge that this course had been taken pursuant to s1383 of the Corporations Act. The Corporations Act does not in its terms contain a s1002G, under which the Appellant was charged. The equivalent provisions, in Part 7.10, are differently numbered and differently worded, in certain respects. However, the relevant provision of the Corporations Law which preceded the Corporations Act was deemed, by s1401 of the Act, to be included in the latter Act. Hence the slightly curious adoption of the numbering and terminology of the Corporations Law provisions, identified as provisions of the Corporations Act. 159 Whether or not this approach was correct need not be addressed here, as both parties were content to adopt it. The substantial issue, also not in contention, was that the liability of the Appellant in the re-trial was to be determined in accordance with the requirements of the law as it stood at the time the acts complained of in the indictment were committed. 3. The insider trading charge 160 The terms of the indictment charging the Appellant with the offence of insider trading are set out above at [18]. 161 The insider trading charge contained five elements. These may be identified as follows: (a) First, that the securities were purchased by the Appellant. This element has two limbs. The first was that instructing a broker to obtain an options contract, as principal, constituted the purchase of securities by the client. The second element was that the Appellant was the client of the broker who sought the purchase of the option contracts in question. (b) Secondly, that the information as particularised was possessed by the Appellant at the time of the purchase of the securities. (c) Thirdly, that at the time the Appellant purchased the securities, the information particularised in the indictment was not generally available. (d) Fourthly, that had the information been generally available at the time the options were purchased, a reasonable person would have expected it to have had a material effect on the price or value of the options. (e) Fifthly, that at the time the options were purchased, the Appellant knew or ought reasonably to have known that the information particularised in the indictment was not generally available and, that if it had been, it might have had a material effect on the price or value of the options. 162 The prosecution case in relation to this charge was presented to the jury, as the Crown argued, in the following terms (par 1407): "Very early in the Crown address, when outlining the elements of the offences …, it was made clear that the key factual issue of the Crown case was whether the appellant had purchased the option contracts, and that once the jury were satisfied as to that, the rest fell into place … . That remains the Crown position." 163 The reasoning behind this approach appeared to be as follows: if the Appellant were willing to invest some $90,000 in TNT options at 1.5¢ or 2¢ each, it was either a highly speculative punt on his part, or involved the application of information which was not generally available to investors: had there been a reasonable likelihood of a takeover at a price in excess of $2, the price of the options would not have been so low. However, if it were pure speculation and he was privy to no insider information, there was no rational explanation for the use of an alias and the complex steps taken to cover his true identity by obtaining the cash in parcels of $9,000 or $10,000, by transactions which required visits to numerous banks and separate withdrawals and deposits. Such conduct was at least consistent with a consciousness of impropriety, the source of which could readily be inferred to be insider trading, given the information available at his place of employment and the opportunities to obtain access to that information. 4. The reporting charges 164 By each of the counts under the FTR Act the prosecution undertook to prove that: (a) the Appellant was party to two or more non-reportable cash transactions; (b) having regard to the manner and form in which the transactions were conducted and any explanation given by the Appellant about their manner and form it would be reasonable to conclude that he conducted them in that manner and form for the dominant purpose of ensuring that the currency involved in them was transferred in a way that would not give rise to a significant cash transaction; (c) when he conducted each of the transactions the Appellant knew - (i) that the transaction involved the physical transfer of currency from one person to another; (ii) that the other party to the transaction was a cash dealer; and (iii) that the transaction involved a transfer of currency worth less than $10,000; and (d) at the time the Appellant knew that a transaction involving a physical transfer of currency of not less than $10,000 in value must by law be reported to a Government agency but that a transaction involving a transfer of currency of less than $10,000 in value did not have to be reported to a Government agency. 165 A non-reportable cash transaction was one involving less than $10,000. A significant cash transaction was one involving $10,000 or more. PART B: Admissibility of evidence 166 This part deals with challenges to the admissibility of certain aspects of the evidence admitted or not admitted at the trial. It also addresses grounds relating to the manner in which his Honour summed up to the jury in respect of that evidence. 167 It is convenient to note at the outset a difficulty with the Appellant's submissions which arises in relation to each of the evidential challenges. It is that the arguments presented relied, perhaps in varying degrees, on the false assumption that each piece of evidence needed to demonstrate a material element of the prosecution case, beyond reasonable doubt. To adopt a commonly used metaphor, there was a failure to distinguish between evidence which comprised a link in a chain and that which comprised a strand in a rope. Not each strand need be capable of demonstrating a fact beyond reasonable doubt. The prosecution case was that virtually no element was established by one piece of evidence only. 168 Related to this difficulty was the tendency in the submissions to invite this Court to assess the strength of the evidence. For limited purposes, which will be addressed below, the Court may need to undertake some assessment of the evidence. Generally speaking, whether evidence is accepted, and what weight should be given to it, is a matter for the jury. 1. Photographic evidence 169 On appeal, as at the trial, the Appellant made detailed complaint about the admission of evidence, about the weight the jury were entitled to give it and about what the jury were told about it. The Appellant assumed that each aspect of the evidence he was criticising was likely to have been seen by the jury as critically important. Looking at it in context, however, that is unlikely to have been so. Evidence of identification by photograph is a good example. One of the ways in which the prosecution set out to prove that the Appellant was the man calling himself M Booth or Mark Booth, who dealt with Mr Staehli, was to prove that he looked like the man who visited the offices of Voicemail and who called himself Booth. There were several other ways, of course, in which the prosecution set out to prove that the Appellant and Booth were the same, including: (a) the Appellant's use of the name M Booth when he purchased bank cheques, (b) that a document containing a column of what looked like practice signatures of "M Booth" was found in his possession, (c) that fragments of letters written by M Booth were found on the hard-drive of his computer and, most importantly, (d) that it was the money which the Appellant borrowed from Leveraged Equities and which he personally withdrew from his Commonwealth Bank account that was used to establish the M Booth investment account at Ord Minnett. 170 There arose thereby a strong implication that the whole operation was the Appellant's and that he was the man calling himself M Booth who attended the offices of Voicemail and Mailboxes Etc to set up an address and a message service, because he could not afford to use his ordinary work or home addresses or telephone numbers for fear of detection. Neither did the prosecution undertake to prove that the Appellant was the only person involved in the operation, and a positive finding that some other person had taken a step in the preparation of the scheme would not necessarily have harmed the prosecution case. The evidence of Ms Wilkins and Mr Brear must be seen in that context. This was not a case like Alexander v The Queen (1979-1980) 145 CLR 395 or Festa v The Queen (2001) 208 CLR 593 in which evidence of visual identification was crucial. 171 Two employees of Voicemail, Ms Wilkins and Mr Brear, saw and spoke to a man on 19 September 1996 who set up the relevant account. Some three months later, they individually described him to Federal Agent Jemmeson and she showed them cards on which twelve photographs had been mounted. These came to be called "the photoboards". The images on the photoboards had been taken from a security camera which had recorded images of persons at the National Australia Bank, Leichhardt on 9 September 1996. Photograph number four was a copy of the one shown to the Appellant during his interview with the police and about which he said (AB 7161): "It's probably me, because it looks a bit like me, doesn't it?" "It's not a great photo, but it could be me, yeah;" and "That looks like me." 172 The description given by Ms Wilkins on 20 December 1996 was as follows (AB 4814): "About 5'7 very slim, 'gay looking [effeminate]', dressed in expensive nice casual clothes. Clean shaven, slightly sharp nose, short cropped hair. Wearing baseball cap which he took off. Sat there a long time asked if he would like coffee – he said he was waiting for Peter. Hair short cut, clean looking. Well articulated/or English accent. Smallish face. Late 20's/mid to late 20's. Can't recall jewellery or accessories. He refused coffee appeared very nervous/looked uncomfortable – was there about ½ hour. This occurred a few months ago. People rarely come in and rarer that they sit down for ages. May be able to recognise." 173 On the same day Ms Wilkins wrote the following statement, having been shown the photoboard (AB 4815): "Today 20.12.96 I was shown the photoboard numbered GP96 1437. Prior to being shown the photoboard I was advised by Federal Agent Joanne Jemmeson that the person I know as 'a person who visited our office of Voicemail 4/160 Goulburn St Sydney a few months ago and was seated for around half hour in our front office waiting to speak to Peter Brear'. I spoke to the person a couple of times asking if he needed 'help or a coffee he seemed very nervous'. This person may not be pictured on the photoboard and I have also been advised that if I am unable to identify this person with reasonable certainty I must say so, but I believe No 4 on the board to be the person that I spoke to in our office." 174 Ms Wilkins read to the jury the description she had given and the statement she had written on 20 December 1996. 175 On 4 December 1996 Mr Brear gave this description to Federal Agent Jemmeson (AB 4797): "28-30 yrs, 5ft 10, short black hair straight/not black dark brown, slightly overgrown crew cut/cut close to the head about an inch all over. Had a red baseball cap which he took off. Looked gay. Some growth of hair on chin may be 5 o'clock shadow. Can't recall any other features about face. Casually dressed, jeans, can't recall shirt, can't recall jewellery, not carrying anything, slim build Anglo Celtic Australian, Australian accent." 176 He told the officer that he would probably not be able to recall the man if asked to identify him. Nevertheless, on 20 December 1996 Mr Brear was shown the photoboard and wrote on the back (AB 4813): "Today I have been shown the Photocard GP961437. Prior to being shown the photocard I was advised by Federal Agent Joanne Jemmeson that the person I know as Mark Booth may not be pictured in the photoboard. I was advised that if I am unable to identify the person I know as Mark Booth with reasonable certainty I must say so. I cannot identify Mark Booth with any certainty, however I consider the photo number four (4) is the nearest likeness." He read that statement to the jury. 177 Objection was taken at trial on a number of grounds, including the provisions of s3ZO(2) Crimes Act (Cth), which require that when photographs are put to a witness for the purpose of obtaining evidence of identity, at least nine must be shown and each must resemble the suspect in age and general appearance and not have visible features that are markedly different from those of the suspect as described by the witness before viewing the photographs. The defence also submitted that the probative value of the evidence was outweighed by the danger of unfair prejudice: Evidence Act, s137. His Honour delivered a detailed judgment, concluding that s3ZO(2) had been complied with and that the balance under s137 favoured the admission of the evidence. 178 The relevant grounds of appeal were as follows: " Grounds Relating to Photoboard Selection 8. The judge erred in admitting evidence of the photoboard selection of Wilkins (Ex 94, Ex 95). 9. The judge erred in admitting evidence of photoboard selection of Brear (Ex 87). 10. There was an error of law (s116 and 165 of Evidence Act), or alternatively a miscarriage of justice, because the judge's directions to the jury in relation to Brear's and Wilkins' photoboard evidence were inadequate and/or misleading or inaccurate. 11. There was an error of law, or a miscarriage of justice, because as part of his warnings in relation to the photoboard evidence, the judge made the comments to the jury about the Crown's argument for the significance of Brear's and/or Wilkins' photoboard selection at pages 195 and 199-200 of his summing-up. 12. There was an error of law, or alternatively a miscarriage of justice, because the judge did not permit the appellant to cross-examine Brear or Wilkins in relation to Ex 151 and Ex 152 (the photograph from NAB Leichhardt)." 179 Grounds 8, 9 and 12 may be dealt with together. It was submitted that his Honour ought to have rejected the tender of the evidence of Ms Wilkins and Mr Brear because its probative value was outweighed by the risk of unfair prejudice to the Appellant. It was said that the evidence had negligible probative value because: 1. Ms Wilkins and Mr Brear made "process of elimination" selections; 2. the photoboards were unfairly assembled; 3. the witnesses were not asked what similarities had motivated their choice; and 4. the choice of photograph number 4 added nothing to their descriptions. It was also argued that the admission in each case gave rise to the risk of unfair prejudice because: 1. although the evidence was not of positive identification the jury were likely to understand it as such; and 2. the evidence was consistent with a belief that the person in photograph number 4 was not the person they saw. 180 The submission that the selections made by Ms Wilkins and Mr Brear were by "process of elimination" was not made to the trial judge. The Appellant referred in this Court to the danger pointed out by Deane, Toohey and McHugh JJ in Pitkin v The Queen (1995) 69 ALJR 612 at [5] that witnesses who are shown photographs by investigating police will ordinarily desire to assist the police and will assume that the photographs are of likely offenders. Consequently, there arises a subconscious pressure to choose a photograph of a "suspect" who "looks like" the offender, even though the witness cannot and does not purport positively to identify the subject of the photograph as the offender. It was put that out of any collection of photographs there will always be one that is most like, in the sense of least unlike, the image the witness has in mind. That, it was submitted, was what Ms Wilkins and Mr Brear really did. Their evidence was consistent with their belief that the photograph they chose was not of the man they saw. 181 We do not accept this submission. In the first place, the process of selection was unlikely to give rise to the danger referred to in Pitkin v The Queen. The photographs were not, using the language of Pitkin v The Queen, of likely offenders but of members of the public recorded on the security camera of a bank or other commercial institution. The offender in this case, given the nature of the offence and the fact that these persons did not witness any crime being committed, was indeed a 'member of the public'. That fact may have given credence to Federal Agent Jemmeson's statement that the person known to the witnesses as Mark Booth might not be pictured on the photoboard. 182 The effect of the 'balancing' statement made by law enforcement officers may be treated with a degree of scepticism. A member of the public is likely to assume that law enforcement officers do not waste time creating photoboards and showing them to people unless they themselves believe the offender is one of those pictured. Weight had to be given to the evidence of the instruction given by Federal Agent Jemmeson to the effect that if the witness was unable to identify the person the witness had to say so. 183 Ms Wilkins' response was to say that she believed that the man shown in photograph number four was the person she spoke to in her office. On the other hand, Mr Brear stated that he could not identify Mr Booth with any certainty but considered photograph number four the nearest likeness. Describing the process he took he said (AB 1398): "It was more of a process of elimination as opposed to actually positive identification. Like sort of doesn't look like. It was very difficult to come to any conclusion from those photographs." 184 It must have been obvious to the jury that, unlike Ms Wilkins, Mr Brear was not saying that he believed that photograph number four was of the man Booth. The evidence was not of positive identification but of a man having a similar appearance. This was "circumstantial identification evidence" capable of pointing, with the other evidence in the case, to the Appellant as the person concerned: R v Adams [2004] NSWCCA 279. The jury needed to be properly directed as to the use they could make of this material, because its probative weight was limited. However, its prejudicial effect, namely the danger that it would be given weight it could not reasonably bear, or that it would be used for an impermissible purpose, was also slight. There is no reason to find that it should have been rejected. 185 The next submission was that there was bias and unfairness in the way the photoboards had been put together. It was submitted that they were strongly biased towards the selection of photograph number four because there were only two or three photographs from which any choice could realistically be made. Only photographs numbered one and four were close-ups. Many of the photographs were of such poor quality or showed the subject at such a distance that facial features could not be observed. Most did not resemble the verbal descriptions given by Ms Wilkins and Mr Brear as to age, build and hairstyle, and "many" of the photographs were markedly different from those descriptions. Photograph number four was effectively enlarged so that the face and upper body were more visible than many of the others. 186 We can see for ourselves that that summary is not accurate. It is not correct to say that other photographs do not resemble the descriptions given by Ms Wilkins and Mr Brear in the respects contended for. It is not correct to say that only two of the photographs are close-ups. It is not correct to say that a choice could realistically be made from only two or three of them. His Honour found that photograph number four was generally consistent with the descriptions given by Ms Wilkins, except possibly for hair length, and with the description given by Mr Brear, except possibly for facial hair. His Honour observed that some of the photographs were of only moderate or even poor quality but did not consider them so poor as not to be photographs of at least nine persons. His Honour found that the photographs other than number four were not markedly different from it and that the statutory criteria of resemblance in age and general appearance were satisfied. His Honour found that there was no feature of the person shown in photograph four that made it stand out from the others. 187 The next submission relied on what were said to be differences between the evidence of Ms Wilkins and Mr Brear about various features of the appearance of the man in the office, particularly his haircut, and the appearance in photograph number four. There was particular reference to the length and style of the haircut. Also relied on were what were asserted to be differences between Ms Wilkins' evidence and her endorsement of the photoboard. As his Honour said, photograph number four was generally consistent with the description given by Ms Wilkins and, with the possible exception of hair length and whether the person had facial hair, the description given by Mr Brear. The jury were entitled in assessing the evidence of Ms Wilkins to take into account any differences they saw between her endorsement and her evidence. The submission would have formed the basis for a comment in an address to the jury: it does not demonstrate a basis for rejecting the evidence. 188 His Honour concluded that the evidence of Ms Wilkins had probative value, which was not outweighed by the danger of unfair prejudice. It seems to us that his Honour was entitled to assess the evidence in that way. His Honour considered that the probative value of Mr Brear's evidence was less than that of Ms Wilkins' but that it was not outweighed by the danger of unfair prejudice. That assessment was open on the evidence. 189 The next submission was that unfair use was made of two enlargements of photograph number four (Exhibits 151 and 152). In his written submissions the Appellant said this: "The unfairly prejudicial forensic use (or misuse) the Crown made of the photoboard evidence was critically important. Brear and Wilkins gave consistent descriptions of the person's hair as extremely short which the appellant argued eliminated the possibility that Hannes was the person who visited Voicemail National. There was nothing in the photoboard evidence, properly understood, which undermined the verbal descriptions of the person's haircut. The Crown admitted it wished to use the photoboard evidence to undermine the clear, reliable and detailed haircut descriptions from the same witnesses. The photoboard evidence was misused to suggest the haircut descriptions were either unreliable or consistent with the haircut in photo 4. Thus, the Crown suggested the witnesses had selected photo 4 (with longer hair) as the person they saw ( whereas it was a process-of-elimination selection); that Ex 151 and Ex 152 showed the person selected had longer hair; or suggested spurious reasons to reconcile the verbal descriptions and the longer hair shown in the photos, such as alleged ambiguity of the description, or that the person may have had a baseball cap on most of the time ( whereas there was no need for reconciliation as no witness said the hair in the photo was similar to the hair of the person they saw)." (Cross-references and footnotes omitted). 190 These submissions should not be accepted. They contain significant misstatements of fact. The prosecution did not admit that it wished to use the photoboard evidence to undermine the witnesses' description. Neither witness said that the man's hair was "extremely short". Mr Brear described the man as having (AB 1382): "Short dark brown, straight hair, cut about an inch from the person's head, in the shape of a crew cut." 191 Ms Wilkins described him as having (AB 1431): "Short cropped hair." 192 In cross-examination Ms Wilkins said (AB 1451): "Maybe I imagined because it was very very short at the side of the cap that it was probably short on top. Maybe that is my perception." 193 Then it was submitted that his Honour erred in law in admitting the evidence of Mr Brear "on the basis that it was 'enhanced'" by the evidence of Ms Wilkins. This submission should be rejected. In deciding to admit the evidence of Mr Brear his Honour said (AB 827): "For the reasons I have given, the probative value of Mr Brear's photoboard evidence is less than the probative value of Ms Wilkins' photoboard evidence. However, I consider that his evidence, considered by itself, has some probative value and that its probative value is not outweighed by the danger of unfair prejudice." 194 The discrepancies between their descriptions was a fact which could have been, and was, exploited by the defence before the jury. It could not, in the circumstances, be erected into a challenge to admissibility even on discretionary grounds. 195 Ground 12 charged that a miscarriage of justice resulted from the refusal of his Honour to permit cross-examination of Ms Wilkins on Exhibits 151 and 152, the enlarged versions of photograph four. It was submitted that their size enabled more detail to be discerned and that it was consequently easier to see that they were photographs of the Appellant. Defence counsel for the Appellant sought at trial to put the enlargements to Ms Wilkins in order to ask her about the length of the hair shown in them and to compare the appearance of the hair with the description she had given of the hair of the man in the office. Counsel was prevented upon objection from doing so. That, it was submitted, was an error of law. 196 Ms Wilkins had never been shown any enlargement of photograph number four. The only copy of it that she had seen was the one affixed to the photoboard. To cross-examine her on any differences discernible between that photograph and the enlargements would have been unfair to her, because she had never used the enlargements, and it would have been misleading and confusing for the jury. In our opinion no error of law was made and no miscarriage of justice resulted. 197 Grounds 8, 9 and 12 have not been made good. 198 Ground 10 complains about his Honour's directions on the evidence of Ms Wilkins and Mr Brear. It was submitted that his Honour should have drawn to the jury's attention: (a) the unfair way in which the photoboards had been assembled, (b) the fact that Ms Wilkins and Mr Brear made their selections by process of elimination, (c) the special risk of prejudice said to arise from the difference between Ms Wilkins' endorsement of the photoboards and her oral evidence, (d) the asserted unfair prejudice that arose from the use of Exhibits 151 and 152, (e) the prosecution's use of the photoboards to "undermine verbal descriptions" of the visitor's haircut, (f) the inability of defence counsel to cross-examine Ms Wilkins on Exhibits 151 and 152, and (g) the risk that the jury might impermissibly regard the evidence of Ms Wilkins or Mr Brear, or both, as stronger because each had chosen the same photograph. 199 No application was made by defence counsel for such directions as are contended for under this ground of appeal. In our opinion r 4 of the Criminal Appeal Rules should apply and leave should be refused to appeal on this ground. 200 Ground 11 complains about a passage in the summing-up. In his closing address, prosecuting counsel dealt with the evidence of Ms Wilkins and Mr Brear, remarking on parts of their descriptions that fitted the Appellant. The address included these passages (AB 3928): "That is the description [Ms Wilkins] gave. Again we submit all entirely consistent with Mr Hannes. It is not Mr Hannes versus the rest of the world. It is Mr Hannes and some unidentified person who, as I said yesterday, if he existed might have been short and bald. … Now you might think that is strong evidence pointing to Mr Hannes. You will be warned about photographic identification in due course but you do not just look at the evidence alone. You look at the evidence together with the other evidence and this points strongly to it being Mr Hannes." 201 Prosecuting counsel invited his Honour to remind the jury of those submissions. 202 Having dealt in detail with the evidence of Mr Brear, his Honour said this (AB 4415): "An argument put by the Crown is that there are, the Crown submits, only two conceivable possibilities, either this person who came to the premises of Voicemail National on 19 September was the accused or he was the person M Booth – Mark Booth, separate from the accused. The Crown submits to you that it is evidence of some significance that the witness thought there was any likeness between the person seen and photograph number 4. You might recall the Crown putting to you that M Booth or Mark Booth, if he does exist, might look entirely different from the accused." 203 Having dealt similarly with Ms Wilkins' evidence his Honour said this (AB 4419): The Crown would repeat the same argument, that the person who was in the office that afternoon was either the accused or the real M Booth, if there is a real M Booth. So the Crown submits that there are only two possibilities and any likeness to the accused is evidence of some significance. I have spent a lot of time on the evidence of photoboard identification by Miss Wilkins and Mr Brear, in order to give you appropriately detailed directions about this part of their evidence. However, as I have said before, you should not think that this evidence of photoboard identification is necessarily an important part of the Crown case and I repeat that the warnings and directions I have given you apply only to that part of their evidence which consists of the evidence of photoboard identification." 204 Defence counsel (Mr Wigney) asked his Honour to withdraw what he had said on the ground that it undermined the cautions given about photographic identification. The prosecution responded. There was this debate (AB 4422): "WIGNEY: The only other point is that it may be a bit late but we object to your Honour's putting the Crown argument, as it were, and ask your Honour to withdraw it. In our submission it ought not to have been put in those terms. Effectively it goes to undermine the cautions your Honour had given, indeed the significance is really the evidence was, there wasn't any likeness. HIS HONOUR: It's hard for me to withdraw it. CROWN PROSECUTOR: Our submission is the reason for the warning is much less strong in a case such as this, where the Crown is relying upon it as circumstantial evidence and it's much less strong where the evidence as probability in similar evidence as to the accused and we are entitled to have that put. Part of our case is the similarity between Mr Hannes and whenever this person bobs up that's part of our case. WIGNEY: Part of our case and part of the cautions your Honour gave was the dissimilarity between the verbal descriptions and Mr Hannes' appearance. It goes to undermine what the Crown says is the probative strength of the evidence. I don't want to take up any more time. HIS HONOUR: I think it's hard for me to withdraw it but I will say something about it." 205 A few minutes later his Honour added this in summing-up to the jury (AB 4424): "Ladies and gentlemen, in giving you directions and warnings about the evidence of photoboard identification by Mr Brear and Miss Wilkins, I did refer to a submission made by the Crown. That submission made by the Crown is obviously not part of the warning and directions I give you on my authority as the trial judge. It's merely a submission made by the Crown." 206 In this Court, the Appellant argued that the prosecution submission was illogical. If Mr Booth existed there was no evidence of how he looked independent of the evidence of those purporting to have dealt with him. So if he existed Mr Booth might have looked like the Appellant, and a description of a man generally like the Appellant might be a description of a man generally like anyone else, particularly the real Mr Booth. 207 Then it was submitted that the references to the prosecution's submission placed immediately after the conventional warnings, would have suggested to the jury that the warnings were not apposite to the circumstances of the case. That in turn might amount to a suggestion that this evidence had greater probative value than was in fact warranted. 208 It was submitted that his Honour was in error in using the description "likeness" when summarising Mr Brear's evidence. Whether there was a likeness, it was submitted, was the question the jury had to decide. Finally, it was submitted that the prosecution submission had failed to take account of, and so undermined the effect of, the differences between the descriptions given by Ms Wilkins and Mr Brear of the length of Mr Booth's hair. 209 It may be accepted that there was no description of Mr Booth's appearance from anyone who claimed to know him. If the person in the Voicemail office were the Appellant's supposed business partner, then according to a statement made by the Appellant to the investigating officers, he might have been English. Beyond that, there seems to have been no evidence capable of bearing on how Mr Booth, if he existed, might have looked or sounded. A description of a man having an appearance similar to that of the Appellant might therefore have been of a man having an appearance similar to Mr Booth's. The prosecution's submission was not entirely without substance, however. If accepted, the fact that the elusive Mr Booth had an appearance like that of the Appellant was a circumstance that the jury was entitled to consider together with all the other circumstances pointing to the Appellant as the man not only who attended the Voicemail office but who attended Mailboxes Etc, purchased the bank cheques and dealt with Ord Minnett. We reject any implication in the Appellant's submissions that evidence of Ms Wilkins or Mr Brear about what she or he saw and heard had to be dealt with in isolation. The same may be said of the witnesses from Mailboxes Etc who described the appearance of the man who visited that office. 210 The substance of the prosecution submission at trial was that the descriptions given by Ms Wilkins and Mr Brear, like all other descriptions of Mr Booth, were of a man like the Appellant. That approach accepts that the identification evidence, taken in isolation, did not establish that the Appellant was the man who attended Voicemail National on the day in question. What it did establish was that the man looked like the Appellant. It would have been a strange coincidence, the prosecution argued, if there were a second person involved who just happened to look like the Appellant. The strength of the argument depended on the degree of similarity and whether any unusual or distinctive appearance was involved. These were matters for the jury. But to remind the jury that the prosecution has put the case on a weaker basis than actual identification does not necessarily undermine the effect of the caution: in fact, it might strengthen it. Reading this part of the summing-up as a whole, the need for caution in the use of this evidence was satisfactorily put to the jury. Accordingly, no miscarriage of justice resulted from his Honour's reminder about the submission. 211 Nor do we accept the other submissions. His Honour dealt appropriately with the descriptions given by Ms Wilkins and Mr Brear, including the respects in which they corresponded and those in which they did not. 212 This ground of appeal has not been made good. 2. Character evidence 213 It is convenient to consider grounds 30 and 31 together. They are as follows: "30 There was an error of law and a miscarriage of justice when the judge permitted the re-examination of Rousselot in purported rebuttal of the appellant's character. 31 (a) The judge erred in telling the Crown it was permissible to address the jury on why only Rousselot was asked by the appellant about his character. (b) There was a miscarriage of justice because the Crown asked the jury to speculate why certain Crown witnesses were not asked by the appellant about his character and said this was relevant to "what weight is to be given to Mr Hannes' character". (c) The judge erred in his comments to the jury about those Crown submissions and the use which could be made of the failure of the appellant to question other witnesses about his character. (d) There was a miscarriage of justice because the judge failed to make adequate and proper directions following those Crown comments." 214 The evidence showed that the Appellant had occupied senior positions with Macquarie Bank or MCF since the mid-1980s. He was one of about a dozen executive directors of Macquarie Corporate Finance and had at one time been responsible for the Sydney business of Macquarie Corporate Finance. As such he was well-known to all those holding senior positions in Macquarie Bank and MCF. The evidence also showed that he was very good at his job. He had been the leader of the team of executives advising one of the parties in the merger of CRA and RTZ, then the biggest merger in Australian corporate history. According to Mr Moss, the Managing Director and Chief Executive Officer of Macquarie Bank, the Appellant had an outstanding grasp of the merger and acquisition business. 215 The prosecution called a number of senior personnel as to the history of the project in MCF. Their evidence as to the Appellant's character might, because of their status, have been impressive, if favourable. They all knew the Appellant well. They included Mr Moss, who had known the Appellant since he joined Macquarie Bank; Mr Lucas, head of the Corporate Advisory Division, who had been with Macquarie Bank for twenty-one years and had worked with the Appellant on the CRA-RTZ merger; Mr Poole, a member of the Tennis team, and an executive director who had been with Macquarie Bank since 1985; Mr Johnson, Deputy Chairman, who had known him since 1987; Mr Joyce, an executive director and member of the Tennis team, who had known him since early 1994; Mr Yates, an executive director and Mr Cox, Chairman of the Corporate Finance Division. None of these witnesses was asked any question about the Appellant's good character by defence counsel. (1) Re-examination of Ms Martin-Rousselot 216 Then Ms Martin-Rousselot was called to give evidence. She had joined Macquarie Bank in 1994 and had been promoted in 1996 to assistant director. She was a member of the Tennis team. Her desk was next to the Appellant's. She had worked with Mr Murdoch and others on the valuation of TNT shares. A number of questions were asked of her and answers given in cross-examination to establish her association with and knowledge of the Appellant. She was then asked (AB 3437): "Q. And in terms of his reputation at Macquarie Corporate Finance, what was that? A. His reputation was excellent. Not only for his ability professionally but also personally for his integrity and his upstandingness. And even after this happened, even after he was arrested and implicated in this, which is when you'd expect all the skeletons to come out of the closet, and everyone to come up with nasty things to say, nobody could think of anything to say except good things. It's just inconceivable. Q. What observations did you make about his honesty integrity and ethical standards whilst at Macquarie Corporate Finance? A. I assume the jury's heard all about the open plan, but in open plan when you work in an investment bank, you really get to know everybody you work with. And I don't mean the details of what they do, and who they're with, but I mean the people that they are, because you see people working under intense pressure with sleep deprivation, and things going wrong, and lots, lots of money involved, and clients that are very demanding, and you see the true colours of people. I mean everyone can look good the first day when they come in, and they're all charming and, you know, have got the whole thing going, but after two months of sleep deprivation, and your client finding a $50 million mistake in the financial model, you see how people really are deep down. And, you know, you see how people speak to their wife on the phone when they're under pressure, or yell at their secretary when something goes wrong, or turn on their juniors when they find the mistake, and you see what they're made of. And with Simon, I sat next to him in 95 and 96, he's somebody I saw more closely than anybody. What you saw was always integrity, loyalty. Simon wasn't about shortcuts or deception, or anything like that, he was always about earning everything you got, and being loyal to people, and the idea of him doing something that would betray the employer, his mentors, his colleagues, his clients, it's impossible in my opinion." 217 In re-examination, the prosecution adduced this evidence (AB 2599): "CROWN PROSECUTOR: Q. Miss Rousselot, you have been asked a number of questions about Mr Hannes' character? A. Yes. Q. Just now. Would it affect your assessment of Mr Hannes' character if you knew that on his own account he intended to operated or be a party to operation of a securities trading account in a false name? A. (No answer) Q. I take it operating a securities account in a false name is illegal? A. I'm just thinking of - just trying to think of the situations, various interactions. Of that you mean a false name - Q. Yes? A. - or on somebody else's behalf Q. A false name? A. Yes. Q. How would it affect it? A. Negatively. Q. Would it affect your assessment of Mr Hannes' character if you knew that he intended to operate a securities trading account, or be a party to operation of such in his sister's name to avoid tax? A. If the sole reason was to avoid tax, yes. Q. And in what way would it affect it? A. Negatively. Q. Would it affect your assessment of Mr Hannes' character if on his own account he obtained a series of bank cheques from different banks in the sum of 9,000 or $9,100, would that affect your assessment of his character if you knew that on his own account that he did that? A. Can I just ask if you're asking me if he's doing that to avoid financial transactions reporting? Q. I will add something. If he did that knowing that it was unlawful to structure transactions and, he he knew transactions over $10,000 were reportable? OBJECTION (WIGNEY) WIGNEY: It is something the Crown would have to establish. CROWN PROSECUTOR: I understand that, but it's a factual assumption. I am entitled to put the question. It's a factual assumption. HIS HONOUR: It seems to me it's permissible Mr Wigney. WIGNEY: One of the difficulties, I think the questions were commenced with on his own account. CROWN PROSECUTOR: I will take that out. HIS HONOUR: Yes take that out. CROWN PROSECUTOR: Q. I ask would it affect your assessment of Mr Hannes' character if you knew - HIS HONOUR: I ask you to assume I think. CROWN PROSECUTOR: Q. It be assumed that he obtained a series of banks cheques for 9,000 or $9,000 knowing that sums over $10,000 were reportable? A. If he did it to avoid the law, then yes that would affect my judgment negatively. Q. How? A. Negatively." 218 Ms Martin-Rousselot gave her evidence on 5 August 2002. On 15 August, after the close of evidence but before final addresses, defence counsel handed up a document entitled "Accused's list of matters which require directions". The list included the following: "Good character: … . The unproven allegations of criminal conduct, the 'question begging' and [t]he questions in hypothetical form should not have been raised in cross-examination [sic] of Ms Rousselot and are not evidence of bad character or any qualification on the evidence of good character." Debate ensued on the directions required on good character. 219 The form of the evidence elicited by the prosecution and the manner in which it was adduced are both, to say the least, unusual. The defence having cross-examined a prosecution witness to adduce favourable character evidence, the purpose of the re-examination was to undermine the credibility of the views thus expressed. Counsel for the defence was, as he candidly admitted in the course of argument as to the use which could be made of such evidence, caught off-guard. Several questions were asked and answered before he first objected and, although the substance of the objection may not have been fully recorded, it seems unlikely that it was addressed to all aspects of the exercise then being undertaken. That is a matter to which it will be necessary to return. However, the re-examination was open to two fundamental criticisms. First, the re-examination was not designed to remove ambiguities or uncertainties in the previous evidence of the witness, nor to give the witness an opportunity to explain an answer previously given. Rather, the sole purpose was to destroy the effect of the answers given in cross-examination. 220 The second difficulty with the re-examination was that the means of undermining the answers given in relation to the character of the Appellant was to invite the witness to assume that the Appellant had engaged in illegal activities, either being those the subject of the charges in the indictment, or being activities undertaken in the course of the conduct which was the subject of the charges, but was not itself a count in the indictment. 221 Questions of credibility, to which good character evidence could have been relevant, arose, but largely on the periphery of the case. The Appellant did not give evidence. So far as the interview given to the investigating officers was concerned, the prosecution case undoubtedly challenged denials contained in that interview, but also relied upon the interview, to a significant extent, as demonstrating guilty knowledge. Rather, the primary purpose of adducing good character evidence was to demonstrate that the Appellant was a man of integrity, who had over many years had continual access to confidential information which could have been used for personal benefit had he been so inclined, and had proved himself trustworthy. He was therefore not a person likely to have succumbed to temptation in the manner alleged. 222 To the extent that it does not go to credibility, good character evidence is admitted as a basis for concluding that it is improbable that the person accused would have conducted himself as alleged. Historically, such evidence was admitted for that purpose before an accused was permitted to give evidence in his or her own defence: see R v Stannard (1837) 173 ER 295 and, in even earlier times R v Turner (1664) 6 How St Tr 565 at 613 and R v Harris (1680) 7 How St Tr 926 at 929. The evidence is, however, in effect evidence of prior good character. Thus, a statement by a judge to a jury that "in the case of every criminal, there was a time when he was a person of good repute" was treated as an inappropriate denigration of character evidence and as constituting a misdirection: see R v Thompson [1966] QWN 47 (Gibbs J). In the present case, the whole of the re-examination on this topic was to the effect, 'If Mr Hannes committed the form of illegality with which he is presently charged, how would that affect your assessment of his character?' Not surprisingly, the answer in each case was, "negatively". That line of cross-examination was impermissible: where the witness had expressed an opinion of the accused's character, which would support the view that, in her opinion, he would not have acted as alleged, it is entirely beside the point to ask her to assume that he did act as alleged and then seek an opinion as to his character. The false premise of such questioning renders it mischievous. Neither defence counsel, nor the trial judge perceived the mischief before it had been completed. 223 It is at this point that the manner in which the re-examination occurred takes on significance. In effect, prosecution counsel treated the witness, in relation to this evidence, as a defence witness whom it was entitled to cross-examination. Ms Martin-Rousselot was, however, a prosecution witness. The prosecution may have been entitled to cross-examine her on this evidence, but to do so it should have sought leave. Had that step been taken, the line of cross-examination would no doubt have been foreshadowed and the illegitimacy exposed before the damage was done. 224 The Evidence Act 1995 defines, in the Dictionary, "leading question" in the following terms: " leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question, or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked." 225 Each of the questions asked of Ms Martin-Rousselot in re-examination, with respect to her opinion of the Appellant's character, would appear to be a leading question. Section 37 of the Evidence Act provides: 37(1) A leading question must not be put a witness in examination in chief or in re-examination unless: (a) the court gives leave, or (b) …, or (c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by a lawyer, or (d) …, or (e) if the witness has specialised knowledge based on the witness's training, study or experience – the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given. 226 It appears that the prohibition in s37(1) applied unless the questioning fell within one of the exceptions. Paragraph (e) appears to be directed to expert witnesses, which was not the role played by Ms Martin-Rousselot in the proceeding. No leave was granted under paragraph (a), with the result that the only basis on which the examination was permitted was that there had been no objection made to the question by defence counsel, for the purposes of paragraph (c). However, a criminal trial is not one in which the prosecution is entitled to introduce evidence by what should have been understood to be a patently impermissible course, by taking advantage of the element of surprise and the likelihood that defence counsel may not object to an unexpected and most unusual line of re-examination. 227 By the time defence counsel took his second objection, the trial judge appeared to assume that the witness was being cross-examined, as did the prosecutor, who said he was "actually putting a prior inconsistent statement". Upon the trial judge commenting that it "does rather sound like cross-examination" the prosecutor sought leave under s38 of the Evidence Act. That provision requires that a party who called a witness obtain leave of the court to question the witness "as though the party were cross-examining the witness". Such leave may be sought where the witness has made a prior inconsistent statement, or even where the witness is giving evidence "unfavourable to" the party which called her. The issue having crystallized in that form, his Honour refused leave. 228 Ms Martin-Rousselot's views about the character of the Appellant, as apparently conveyed in re-examination, had no probative weight at all. However, it is clear that the answers obtained were those expected by the prosecution and that the questions were put quite deliberately, for the purpose of undermining her earlier evidence. The Court should assume that their immediate effect was as intended. That effect was entirely prejudicial. Had objection been taken at the outset of the line of questioning, it should have been rejected under s137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the defendant. 229 The failure to take objection is not fatal to the challenge by the Appellant. To commence such questioning without seeking leave was improper conduct on the part of the prosecution. In those circumstances, it cannot invoke rule 4 of the Criminal Appeal Rules as protection against a failure to raise an earlier objection. 230 The consequence of this conclusion depends upon a consideration of subsequent events. There was no application at that stage to discharge the jury, but because a lengthy trial was reaching the stage where the evidence was almost complete, little significance should be given to that fact. More importantly, there was serious consideration given to the way in which the evidence should be left to or withdrawn from the jury, and the appropriate comment upon it which should be made by the trial judge, and which might be permissible on the part of the prosecution. However, before turning to this aspect of the matter, it is convenient to note a separate ground of challenge to the way in which the prosecution approached this part of the case. (2) Crown address 231 In his closing address senior counsel for the prosecution said this (AB 3130): "I want to say one thing with respect to character. Mr Hannes has raised character in this case. He put to you that he is unlikely to have committed offences by reason of good character and what he says in the record of interview is likely to be true by reason of good character. You might think, members of the jury, that having read the record of interview that the record of interview is demonstrably false. In respect of his character, I wanted to make one point to you, the only person who was asked any questions about Mr Hannes' character was a Miss Martin-Rousselot, a person he had known probably for the least amount of time, amongst the least amount of time. Mr Johnson, Mr Moss, Mr Poole had all known him for years. Not one of those was asked one single question about Mr Hannes' character. Why? You might wonder what weight is to be given to Mr Hannes' character in the light of the fact that only one witness, one of the more junior members of the team, Miss Martin-Rousselot was asked about his good character. That's all I wanted to say on that topic, members of the jury." 232 On appeal, the Appellant attacked these remarks of the Prosecutor in his closing address and the consequent directions his Honour gave to the jury in relation to them. It was submitted that his Honour erred in permitting the prosecution to make the comment that it did and in directing the jury about the use they could make, in assessing Ms Martin-Rousselot's evidence, of the fact that other witnesses did not give evidence about good character. 233 Despite the formulation of grounds 31(a) and (b), there is some doubt as to whether the Appellant was alleging, as a separate matter, that the trial miscarried because of the comments by the prosecution, rather than as a result of the failure of the trial judge adequately to direct the jury in relation to this aspect of the matter. There are limits expressly imposed by the Evidence Act on the subject matter about which the prosecutor may comment. Thus, s18 of the Evidence Act provides that objection may be made before a person who is a spouse, de facto spouse, parent or child of an accused who is called as a witness for the prosecution, may be required to give evidence. The objection is to be considered by the Court according to certain criteria. Subsection 18(8) then provides: (8) If an objection under this section has been determined, the prosecutor may not comment on: (a) the objection, or (b) the decision of the court in relation to the objection, or (c) the failure of the person to give evidence. 234 To similar effect, s20(2) prohibits (at least by implication) the prosecutor from commenting on the failure of an accused to give evidence and, consistently with s18(8), the failure of a person referred to in that section to give evidence: see s20(3). 235 Those provisions do not, in their terms, prohibit comment by the prosecution on the failure of the accused to elicit evidence from a prosecution witness, or the failure of the defence to call evidence. In Dyers v The Queen (2002) 210 CLR 285, a principle was established, to which there will be reference below, with respect to the undesirability of a trial judge pointing out to a jury that a particular witness might have been called by the defence, or inviting the jury to speculate about what the witness might have said if called. There are three reasons given in the joint judgment of Gaudron and Hayne JJ in support of that principle. The first reason (discussed at [8]) concerned the assumption underlying such a direction, derived from the civil case of Jones v Dunkel (1959) 101 CLR 298, that the witness was, in effect, in the camp of one party rather than another and accordingly should have been called by the former; the failure of that party to call the witness can then support a negative inference, namely that the witness would not have given evidence favourable to that party. In Dyers, their Honours said that there was no evidence as to the witnesses being in the defence camp, but continued: "Rather, the final address for the prosecution asserted (in effect) that there were persons whom it could be expected that the defence would call, but the basis for making that assertion had not been established in evidence." Their Honours did not then comment on the suggestion by the prosecution, but rather the direction given by the trial judge. 236 Callinan J set out the comments by the prosecutor at [106] and [107]. Although, his Honour directed attention to the failure of the trial judge to given an appropriate direction, he added at [123]: "As, save for exceptional cases, the Crown Prosecutor may not address or comment on the non-attendance of witnesses for the defence, the reason, and therefore the occasion, for a trial judge to comment, should also be very rare." 237 The circumstances of Dyers were not on all fours with the present case, the witnesses in question in that case being witnesses as to aspects of the events in question. The right of a prosecutor to comment on the failure of the defence to call such witnesses is doubly inappropriate. As Callinan J noted at [119]: "The fact that the prosecution here saw fit to comment on the absence of the possible witnesses forecloses any argument by the respondent that they were not material witnesses or were not available, and provides a clear indication that if it was for anyone to call them, it was, as indicated by Apostilides, for the prosecution to do so." 238 The reference to The Queen v Apostilides (1984) 154 CLR 563 is relevant to a significant difference between a criminal case and a civil case. The difference is that the prosecution in a criminal case may be required to call, or at least consider calling, any witness to material facts, whether or not he or she is likely to support the prosecution's assessment of the facts, because the State must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one": Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 (per Deane J), quoted by Gaudron and Hayne JJ in Dyers at [11]. It is that consideration which may make it doubly inappropriate for the Crown to comment on the failure of the defence to call evidence, if that evidence is material to the facts in issue. 239 The same criticism of the prosecution cannot be made in circumstances where the evidence in question is not of a kind which would ordinarily be called by the prosecution at all, as in the case of evidence of good character. Nevertheless, the discussion of the principles at stake in Dyers demonstrates the general undesirability of the prosecution commenting on the failure of the defence to call evidence, just as it is inappropriate for the trial judge to make such comment, generally speaking. One practical difficulty is that the circumstances in which the defence could be expected to call such evidence may well need explanation, the giving of which will tend to divert the attention of the jury from the primary matters before them and will inevitably be to encourage speculation, not based upon evidence, but upon that which was not said. 240 Nevertheless, as is clear from the circumstances of Dyers itself, even an inappropriate comment by the Crown will not, in the ordinary course, give rise to a mistrial or a miscarriage of justice. It will, at most, be a consideration to be taken into account in considering the appropriate direction to be given by the trial judge. Accordingly, in the present case, the Appellant's challenge in this respect must focus on the directions given by his Honour. (3) Summing-up 241 On 29 August 2002 his Honour began summing-up. On 4 September, having warned the jury against drawing inferences against the accused from the fact that he had not called evidence, his Honour dealt with good character in the following terms (AB 4452): "Evidence has been adduced on behalf of the accused by cross-examination of the Crown witness, tending to show that he is a person of good character. The evidence was adduced in the cross-examination of Miss Rousselot." 242 His Honour summarised Ms Martin-Rousselot's evidence about the Appellant's character and continued (AB 4453-4454): "In considering whether the accused is a person of good character you should disregard any recollection you have of questions and answers on that subject in the re-examination of Miss Rousselot. That is the evidence relating to the character of the accused. No other witness from Macquarie Bank who gave evidence was asked any question or gave any evidence about the accused's character. It is clearly open to you to find that the accused is a person of good character. The law provides that an accused person is entitled to have you take that evidence into account in the following ways. The fact that the accused is a person of good character entitles you to consider the improbability of his having committed the offences alleged. You are entitled to take the good character of the accused into account on the question of his guilt. Secondly, in considering the answers given by the accused in the interview, and indeed in considering things said by the accused on other occasions, you should bear in mind that the answers were given by a person of good character. The accused is entitled to have that taken into account in deciding whether you believe his answers or believe that his answers may reasonably possibly be true. None of this means of course that good character provides the accused with some kind of defence. Good character is only one of the many factors which you have to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused. It is only one of many factors. An argument put on behalf of the Crown in relation to the subject of character is that other witnesses from Macquarie Bank who had known the accused for much longer than Miss Rousselot, did not give any evidence and were not asked any questions about the accused's character." 243 This direction was challenged by the Appellant on two grounds. The first was that his Honour's attempt to direct the jury to disregard the evidence adduced from Ms Martin-Rousselot by the Crown, by referring to her "re-examination", would have been ineffective, because it would not have been understood by the jury. Whilst it is fair to say that technical legal terms should be avoided where possible, terms such as examination, cross-examination and re-examination form part of the language of the courts: they are not obscure or technical terms. The jury in this case had listened to witnesses being examined, cross-examined and re-examined for some three months. It is fanciful to suppose that such language would not have been understood. 244 By way of a second limb to his challenge to this paragraph in the direction, the Appellant asserted that the jury would not have been able to recall, when they finally retired to consider their verdict, some four weeks after the evidence was given, what was said in cross-examination and what in re-examination and hence to identify that which they were entitled to take into account and that which they were not. However, the Appellant also argued in his written submissions: "A dry and literal analysis of the words in the transcript does not convey how dramatic and damaging the questioning of Rousselot was. The Crown's tone was scornful and insistent; Rousselot was uncertain and flustered by the Crown's questions. … That the questions were based on false factual premises was never drawn to the attention of the jury. The jury would only remember the drama of the confrontation and apparent recantation." 245 The Appellant argued that the direction given was insufficient and that his Honour ought to have stated in forthright terms that the evidence should not have been admitted, that it had no probative value and why, that it had been struck from the record, that it was not evidence and that it was not available for the jury's consideration. Reference was made to a form of words used in Peacock v The King (1911) 13 CLR 619. Following the directions set out above, defence counsel expressly asked the trial judge to direct the jury "to disregard the Crown's submission about the character evidence and the fact that other people were not asked". No other application for further directions was made by senior counsel for the Appellant, from which it may be inferred that counsel did not consider his Honour's direction insufficient to identify the evidence concerned. 246 We do not accept that to be effective the words of withdrawal needed to incorporate any explanation about the intrinsic value of the evidence. It is appropriate, to proceed in a confident expectation that the jury would and did obey the direction to disregard the evidence: Gilbert v The Queen (2000) 201 CLR 414 per McHugh J at [31], [32]. The direction in that respect was unequivocal. 247 The tenor of this complaint is that no redirection could have undone the prejudicial effect. But having expressly determined that the evidence by way of re-examination should be disregarded, his Honour (and the defence) were faced with the practical difficulty of deciding how much repetition was desirable in order most effectively to undo any inappropriate effect. A brief allusion to the evidence, without repetition, may reasonably be seen as the appropriate course. That course was taken in the present case and was not, in terms, challenged. If indeed the evidence had the somewhat melodramatic quality ascribed to it by the Appellant, this may well have been perceived to be the preferable, and effective, course. (4) Other witnesses not questioned 248 The second complaint concerning the trial judge's direction related to his repetition of the fact that others could have been asked about his character, but were not. Leaving the matter in that way was described by senior counsel for the accused as "really an invitation to the jury to make a finding of bad character". That submission was accepted and his Honour then gave a further direction in the following terms (AB 4457): "Ladies and gentlemen, when I was dealing with the subject of character I referred to a submission made by the Crown that the evidence of good character had been given by one witness, Miss Rousselot, and that other witnesses from Macquarie Bank had not been asked questions about the accused's character. That other witnesses had not been asked questions about character and had not given evidence about character is at the highest only a matter which could be considered by you, if you thought fit, as going to the weight of Miss Rousselot's evidence. It is not a matter from which you could draw any inference of bad character. I repeat that. I direct that you could not draw any inference of bad character." 249 After further discussion with counsel going to other matters, his Honour appears to have raised, on his own volition, a further direction which he sought to give to the jury about character evidence, which he then gave in the following terms (AB 4470): "Ladies and gentlemen I'd like to refer once again to the evidence about character, the evidence by Miss Rousselot. In assessing the evidence you can, if you see fit, have regard to the fact that it is evidence by a single witness. You would not be entitled to, and you must not infer, that if any of the other witnesses had given evidence that they would have given any evidence unfavourable to Mr Hannes. The position simply is that the other witnesses have not given any evidence on the subject." 250 The summing-up on this topic may be resolved into five propositions: (1) the jury was entitled to find on the basis of Ms Martin-Rousselot's evidence that the Appellant was a person of good character at the time of the alleged offences; (2) the jury could take that into account in considering the improbability of him committing the offences and in considering the answers given during his interview with law enforcement officers; (3) they should disregard the re-examination of Ms Martin-Rousselot in making an assessment of his character; (4) they could take account of the fact that no other witness from Macquarie Bank was asked about character in considering the weight to be given to Ms Martin-Rousselot's evidence, but (5) they could not infer from the fact that other witnesses were not asked, that they would have given evidence unfavourable to the Appellant had they been asked. 251 The aspect of these directions now in question is the direction with respect to the absence of questioning or calling of other witnesses. (The Appellant gave a reason for taking this course, which will be dealt with separately below, but does not affect the present argument.) The substance of the direction in this regard was that, in considering whether the Appellant was a person of good character, the jury could take into account who gave evidence to that effect and her status in the organisation. The evidence would undoubtedly have been more persuasive if it had come from someone more senior in the hierarchy. The jury were entitled to reason in that way. What they were not entitled to do, a matter which his Honour made clear, was to infer from the failure to ask more senior officers questions as to character that their evidence would have been unfavourable to the Appellant. 252 No doubt this is a fine line for a jury to draw, but it is logically sound and it would be dangerous for the trial judge not to give a direction adverting to the distinction. It is not possible or appropriate for this Court to assess the precise effect of the language used on the jury, or to examine with a fine tooth-comb the terminology used by the trial judge. In our view the directions given were correct and clear. They expressly warned against drawing any adverse inference from a failure to call other witnesses or ask other witnesses questions as to character. This reflected the principles discussed in Dyers v The Queen, without seeking to distinguish between character evidence and evidence as to the commission of an offence, and bearing in mind the warnings against drawing such inferences which had been established in R v Buckland (1977) 2 NSWLR 452 at 459B (Street CJ) and recently (on 1 May 2002) reaffirmed by this Court in R v Noonan [2002] NSWCCA 150 at [25]-[27] (Beazley JA, Bell J and Smart AJA agreeing). The need for such caution was affirmed in more emphatic terms in Dyers, the High Court judgment being delivered five days after this part of the summing-up. (5) Effect of belated withdrawal of evidence 253 It was submitted that a miscarriage of justice resulted because of the times at which things happened. The Appellant asserted that he had a number of witnesses ready to be called to give evidence about his good character. After the re-examination of Ms Martin-Rousselot, fearing that they might be cross-examined as she had been re-examined, the Appellant changed his mind and decided not to call the witnesses. By the time his Honour withdrew Ms Martin-Rousselot's evidence in re-examination on the subject of good character it was too late; the evidence had closed. 254 This is the order in which things happened as this long case drew towards its end. The prosecution closed its case on 12 August 2002. The defence closed its case on 14 August, having called no evidence of good character. Legal argument ensued and on 15 August his Honour held that the prosecution would not be permitted to rely on any evidence relevant to character raised during the re-examination of Ms Martin-Rousselot. Legal argument continued. The final address by the prosecution did not begin until 19 August. 255 There seems no reason why defence counsel could not, on 15 August, have reconsidered, in the light of his Honour's announcement made on that day, whether an application should be made to reopen the defence case to enable evidence of good character to be adduced. Given the timing of his Honour's announcement, it is difficult to see that his Honour would have refused leave if counsel had told the Court that character witnesses were available, having been previously put off solely because of the form taken by the re-examination of Ms Martin-Rousselot. No prejudice would have resulted to the prosecution from such a grant of leave. Nothing had happened before the jury between the close of the defence case and his Honour's announcement. 256 We do not accept that the way things developed following the re-examination of Ms Martin-Rousselot was the only reason why counsel decided not to adduce further evidence of good character. There is no affidavit from counsel saying why no further character evidence was adduced. Nor was any attempt made to put before this Court any statement or summary of the evidence of the witnesses the Appellant would have called, but for the re-examination of Ms Martin-Rousselot. The Court therefore cannot assess the weight the jury might have given to such evidence. 257 It is neither necessary, nor appropriate, for this Court to draw any inference from the failure of the defence to cross-examine other prosecution witnesses as to the Appellant's character. At the very least, in the case of witnesses whose evidence had been challenged in cross-examination, it may have been reasonable to avoid seeking a character reference at the end of a hostile cross-examination. Rather, the question is whether the defence was dissuaded by the re-examination of Ms Martin-Rousselot from calling other, unidentified, witnesses. The Court is not satisfied that the Appellant was deprived of an opportunity to take that course after the trial judge had ruled against the admissibility of the evidence elicited in re-examination from Ms Martin-Rousselot. 258 It follows that none of the elements of grounds 30 and 31 have been made good. Those challenges should be rejected. 3. Handwriting evidence 259 As part of its case that the Appellant was the man who dealt with Ord Minnett, the prosecution tendered evidence of expert comparison between the Appellant's writing and the writing of the man calling himself M Booth. It called a handwriting expert, Mr Westwood, to give evidence. 260 Documents used by Mr Westwood, which were taken to bear handwriting of the Appellant, came from various sources. Some contained long passages of writing, both upper and lower case, notably the Appellant's 'Victory' notebook, letters he had written to Mr Allan Moss, Chief Executive Officer of Macquarie Bank and leave applications and other documents completed by the Appellant in the course of his work with Macquarie Bank. Mr Westwood made up a document reproducing and enlarging certain words extracted from several of those documents: Ex 231. 261 The documents about which Mr Westwood was asked to express an opinion were several withdrawal slips from the Commonwealth Bank written on 6 and 9 September, together with a deposit slip for $50,000 dated 6 September, forms completed for, and letters written by M Booth to Mr Staehli, documents written by M Booth for Mailboxes Etc, six bank cheque application forms, the entry in the Appellant's diary for 16 October 1996 reading "51 Railway Petersham" and several of the ESDA writing impressions from the Appellant's notebook. 262 Mr Westwood examined the specimen documents, said to be in the Appellant's handwriting, and carried out a detailed analysis of upper and lower case letter formation. He concluded that, apart from certain writings obviously placed on the documents by others, as to which there was no controversy, the documents were all written by the one person. To compare the questioned documents he took the bulk of the writing in all the specimen documents. He was satisfied that he had thereby established a reliable basis for comparison. 263 Mr Westwood set about comparing questioned documents with the specimen documents and expressed his opinion about each comparison according to any of four degrees of confidence. From the highest to lowest levels, he concluded that the person who wrote the specimen writing: (a) wrote, (b) very probably wrote, (c) probably wrote the questioned writing, or (d) it was a distinct possibility that the writer wrote the questioned writing. He explained this last level of confidence as being a serious possibility, not just theoretical or hypothetical, being one for which there was good evidence of similarities but where, because of lack of clarity, no higher opinion could be stated. 264 Mr Westwood concluded that all the signatures on the Commonwealth Bank withdrawal slips and the deposit slip were written by the writer of the specimen writings. He concluded that the signatures "M Booth" on the letters to Mr Staehli of 17 September (Ex 2), 3 October (Ex 10), 4 October (Ex 11) and the three page statement of 3 October (Ex 12) were very probably written by the writer of the specimen writings. He concluded that the signature "M Booth" on an undated letter sent by facsimile transmission to Mr Staehli was very probably written by the writer of the specimen writings. He concluded that the writer of the specimen writings wrote everything on the front of the envelope in which the original letter and completed forms were left on Mr Staehli's desk. 265 Mr Westwood concluded that all writing in blue ink on the ASX options client agreement form (Ex 3) was written by one person and that that person was the writer of the specimen writings. He concluded that the blue ink entries in the application for individual or joint account in the name of Mark Booth was written by the writer of the specimen writings. He concluded that the writer of the words in blue ink, the signature "M Booth", and the entry "52 Railway Road Petersham" in the sponsorship agreement (Ex 5), was the writer of the specimen writings and that the same person wrote the ASX options client agreement form and the account application form. He concluded that the entry "Alexi Voltraint" was probably written by the person who wrote the specimen writings. He thought that the signature "Alexi Voltraint" was very probably written by the writer of the specimen writings. 266 Mr Westwood concluded that black ink writings on the Ord Minnett application form (Ex 175) were written by the writer of the specimen writings. He concluded that the three signatures "M Booth" were very probably written by the writer of the specimen writings. He concluded that Ex 175 was written by the person who had written Ex 3 and 4. 267 Of the documents from Mailboxes Etc, Mr Westwood concluded that the person who had written the address of M Booth as "Intercontinental Hotel, cnr Bridge & Phillip, Sydney 2000" on an information sheet (Ex 80) and the service agreement (Ex 81) was the writer of the specimen writings. He concluded that the signature "M Booth" in Ex 81 was very probably written by the writer of the specimen writings. He concluded that the envelope addressed to Mailboxes Etc postmarked 4 October 1996 (Ex 88-2) was written by the writer of the specimen documents. 268 Mr Westwood concluded that the writer of the ASX options agreement, the sponsorship agreement and the Ord Minnett application form may well have written the signature "M Booth" on the credit card application form of Voice Information Processing Service (the owner of Voicemail) (Ex 83). 269 Mr Westwood examined six of the bank cheque application forms and concluded as follows - 1 ANZ Bank, Camperdown: the writing was written by the writer of the specimen writings; the signature very probably written by the writer of the specimen writings; 2 ANZ Bank, Leichhardt: the signature very probably written by the writer of the specimen writings; 3 National Australia Bank, Leichhardt: the writing was written by the writer of the specimen writings; the signature was very probably written by the writer of the specimen writings; 4 National Australia Bank, Roseville: the signature was very probably written by the writer of the specimen writings; 5 Westpac Bank, Leichhardt: the writing was written by the writer of the specimen writings; the signature was very probably written by the writer of the specimen writings; 6 Westpac Bank, Roseville: the writing was written by the writer of the specimen writings; the signature was very probably written by the writer of the specimen writings. 270 Mr Westwood considered the "51 Railway Petersham" entry in the Appellant's diary and the "52 Railway Road, Petersham" entry in the Ord Minnett sponsorship agreement. He concluded that they were very probably written by the same person and that the diary entry was probably written by the person who wrote the specimen writings. He said that he was almost certain about that conclusion. 271 Mr Westwood considered the indented writing impressions from the 'Victory' notebook and concluded that the original writing that generated the impressions was probably that of the writer of the specimen writings. He thought it significantly more likely than not that that was so. He thought that two of the ESDA signatures were probably written by the writer of the specimen writings. He observed that most of the writings on the ESDA treated documents appeared to be sitting just above the lines of the page, a feature noted on the specimen documents. 272 Dealing with the other pages treated by the ESDA process, Mr Westwood expressed various degrees of confidence that they were written by the writer of the specimen documents, ranging from possible to distinctly possible to probable. He remarked generally on the position of the writings above the line on the page, a feature common to the identified writings, and said that the limitations in the ESDA process did not permit him to express his opinions to any greater degree of confidence. He said, however, of the column of "M Booth" signatures, that they were probably written by the writer of the specimen documents. He was able to say so with "a high degree of confidence". 273 The relevant grounds of appeal are as follows: Grounds Relating To Handwriting Evidence 4 The judge erred in admitting into evidence the opinions of Mr Westwood in his Statement of 18 October 2001 in: (i) paragraphs 21(a) and 22(a) and/or (ii) paragraphs 23(c) and 24(a); and (iii) all other opinions dependant on the opinions in (a) and/or (b) 5 There was a miscarriage of justice because the premises and reasoning on which some of Mr Westwood's opinions were based, and some of the opinions themselves, were not disclosed to the jury, or were misrepresented to the jury. 6 There was a miscarriage of justice because the Crown did not adduce evidence of all of Mr Westwood's opinions. 7 The judge erred in admitting into evidence Ex 234 ("Missing Data Form") and words in Ex 236 and Ex 237 from an envelope (MFI 124). 274 Paragraph 21(a) of Mr Westwood's report of 18 October 2001 set out his opinion summarised above as to the authorship and signature of the ASX options client agreement, par 22(a) as to the application for individual or joint account, par 23(c) as to the name M Booth in the sponsorship agreement and par 24(a) as to the writing and signatures on the Ord Minnett application form. 275 The Appellant's submissions on these grounds began with an assertion that the critical issue was whether the Appellant had written the Booth signature on the letter placing the order for TNT options (Ex 2). That may be accepted. The submission continues: "If written by Hannes, it is inconsistent with innocence as it mentions the TNT options." 276 The use of the expression "inconsistent with innocence", while correct, illustrates the unspoken contention of the Appellant throughout the appeal, that Ex 2 had to be of such a quality that it proved the prosecution's case by itself. That was not so, and the trial judge in our opinion correctly refused, with respect to a number of documents including that one, to direct the jury in accordance with Shepherd v The Queen (1990) 170 CLR 573. This matter is further dealt with under ground 15. (1) Challenge to expertise 277 The Appellant commenced his submissions with an attack on the expertise, or perhaps the credibility, of Mr Westwood by referring to judgments of other courts in other cases, in which Mr Westwood appeared to have given evidence in relation to handwriting and judges had expressed various levels of criticism of his opinions. This challenge is misconceived for a number of reasons. First, these criticisms made by trial judges in two cases in the year 2000 dealt with matters entirely unrelated to the present proceedings. In one case, Voros v Janosne, in Re Estate of Anna Gdyro [2000] NSWSC 1166 at [44], Young CJ in Eq noted that Mr Westwood was "an experienced document examiner" but continued: "However, I was not, I must say, particularly impressed with his evidence on this occasion." He then identified four matters which he thought were critical. The earlier opinions formed by other judges in different matters have nothing to do with the evidence he gave in the present case. If it were suggested that he had fallen into an error of a specific kind on prior occasions, being an error which occurred in the present case, it is possible that he might have been cross-examined about his earlier conduct. If it were suggested that his evidence was unreliable, on the basis of earlier conduct, there might have been a challenge to his qualifications as an expert. However, these matters were not raised before the jury, or before the trial judge, and are far removed from the reliance now sought to be placed upon comments in other judgments about his reliability. These complaints appear to have been raised as part of the background to the specific grounds noted above, but in truth they do not go to any of the grounds and could not form the basis of a separate ground of appeal. 278 Mr Westwood had given evidence at the Appellant's first trial in accordance with opinions he had set forth in statements made on 23 February and 10 March 1997. He was asked about those opinions in the retrial and it appeared that between trials he had changed his opinions about some of the documents he had examined, so as to express some of his conclusions with a greater degree of confidence. By way of example, he had earlier said that the signatures "M Booth" on Exhibits 2, 10, 11 and 12 were "probably written" by the person who wrote the specimen writings, whereas by the re-trial he had increased his degree of confidence to "very probably". A voir dire was held during which several matters, but not this matter, were raised. The trial judge decided to admit the evidence of Mr Westwood's opinions. At trial, Mr Westwood was cross-examined about why he was expressing in some respects a higher level of confidence than at the first trial. He explained that between trials he had been furnished with additional documents, which he described. It is not necessary to recite the whole list here but sufficient to observe that some were quite extensive documents. Exhibit 234, a document entitled "Missing Data", contained a substantial passage of handwriting in upper and lower case. A further substantial document was the letter the Appellant wrote to Mr Moss on 12 October 1999. It was several pages long and bore hundreds of words. 279 Mr Westwood said that as well as considering the additional documents he had taken a different approach for the purposes of his second report and had looked at the questioned documents as a whole. He explained that exercise in detail which need not be reproduced here. 280 It does not seem to us that the fact that Mr Westwood increased his degree of confidence in expressing his opinions was a matter that ought to have led to the rejection of his evidence. No suspicion could arise from the mere change of an opinion in response to a request that further material be considered: something more was required, in practical terms. Mr Westwood's evidence was criticised by defence counsel for this and other reasons but ultimately it was a matter for the jury whether they accepted Mr Westwood's opinions at face value or not. 281 One reason put forward why Mr Westwood's evidence ought not to have been admitted was the asserted failure of the prosecution to respond to a letter of 26 April 2002 complaining that Mr Westwood's statement of 18 October 2001 made findings without setting out reasons and expressing concern at the prospect that the reasons would be given orally at trial in a manner that might prevent the defence giving them proper consideration. In fact the prosecution did respond. More importantly, the defence failed to take advantage of several opportunities before and during the trial to raise issues on the evidence, including the evidence of Mr Westwood. The difficulty referred to in the letter of 26 April 2002, if it existed, had existed since Mr Westwood's original reports. The trial judge set aside time in December 2001 to deal with issues about Mr Westwood's evidence but defence counsel resisted dealing with this point at that time. Defence counsel made no attempt to have the trial judge appoint a further fixture. It seems possible that there were tactical reasons for this. If there were genuine difficulties for the prosecution with Mr Westwood's evidence, the later they were exposed the better for the Appellant. At any rate, there were numerous opportunities during the trial, both before and during Mr Westwood's evidence, to raise these matters. If defence counsel had been in genuine difficulty understanding Mr Westwood's processes of reasoning he could have asked for the cross-examination to be deferred while such matters were considered. He did not. 282 The next submission was that Mr Westwood ought not have been permitted to express the opinion that one person wrote the writing and very probably the signature on each of the documents referred to in pars 21(a) and 22(a) of the report "given the similarities which exist between common characters in various parts of this document, the use of the same water-based blue ink and absence of any evidence of multiple writers". The admissibility of that evidence was raised during the course of the trial. Mr Westwood had explained his method and asserted that he had checked every letter of every questioned document against the specimen writings. He explained his reasoning and any assumptions he made. His reasons for concluding that there was one writer were threefold, namely that there were no dissimilarities between the writings in different parts of the documents, that there were similarities, the detail of which he explained, and that the same ink appeared to have been used in different documents. 283 The focus of the Appellant's attack was on the reliance placed by Mr Westwood on the view that a particular kind of ink was used to write certain characters. Thus, in relation to the ASX options client agreement, Mr Westwood stated in his report of 18 October 2001 at paragraph 21(a) (AB 5501): "Given the similarities which exist between common characters in various parts of this document, the use of the same water based blue ink and the absence of any evidence of multiple writers, I concluded that all of the blue ink writing, including the two M. Booth signatures, on this document was written by the one person." A conclusion in similar terms, in relation to the Ord Minnett application, is found in paragraph 22(a). 284 The complaint raised as to the admissibility of this evidence (Tcpt 2822-2824) was that Mr Westwood had no expertise in identifying inks, nor did he purport to test the ink in question. Accordingly, his expression of opinion in relation to the ink was not an expert opinion and was therefore inadmissible. 285 Little weight, however, was placed upon this complaint in the submissions in this Court. Rather, the focus of the complaint in relation to expertise, was placed upon the proposition that Mr Westwood founded his opinion that one person had produced all the handwriting on a single document was not based on any expertise. Thus, instead of comparing one character with another, he was said to have relied upon "similarities which exist between common characters", "the use of the same water-based ink" and "the absence of any evidence of multiple writers". 286 This challenge is, in our view, misconceived for a number of reasons. First, it is necessary to start with the rule that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: Evidence Act, s76(1). In order to understand the prohibition, it is necessary to identify each relevant fact about which an opinion is asserted. However, an opinion is usually an inference derived from assumed or observed facts: see, eg, Guide Dog Owners' and Friends' Association Inc v Guide Dog Association of NSW and ACT (1998) 154 ALR 527 at 532 (30) (Sackville J). Sometimes there may be expertise involved in observing primary facts, sometimes not. Furthermore, a distinction may be drawn between the inference and a process of reasoning which explains why the inference was drawn. 287 Section 79 of the Evidence Act provides an exception with respect to an opinion expressed by a person who "has specialised knowledge based on the person's training, study or experience" and the opinion is "wholly or substantially based on that knowledge". 288 Under the common law, attempts were made to restrict the admissibility of opinion evidence to cases where the witness possessed peculiar skill, "such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance": a comment by J.W. Smith (1876) quoted with approval by Dixon CJ in Clark v Ryan (1960) 103 CLR 486 at 491. The extent to which the constraints imposed by the general law have been weakened under the Evidence Act is yet to be definitively addressed: see Anderson, Hunter and Williams "The New Evidence Law" (2002) par 79.05. As suggested by Gaudron J in HG v The Queen (1999) 197 CLR 414 at [58]: "There is no reason to think that the expression 'specialised knowledge' gives rise to a test which is in any respect narrower or more restrictive than the position at common law." 289 The Evidence Act reveals a tendency to relax restrictive rules, no doubt based on the proposition that juries (and judges) are better able to assess the weight which should be given to evidence, than was assumed in the past to be the case. Nevertheless, as stated by Gleeson CJ in HG v The Queen at [44]: "Experts who venture 'opinions' (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted." 290 Even though the spurious nature of the authority may be apprehended, and allowance made, there is a potentially more insidious risk that the exercise required of the Court or jury will be subverted through adoption of a shortcut, by acceptance of the opinion of another, without careful evaluation of the steps by which that opinion was reached. 291 It is clear that it was a similar concern which, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, led Heydon JA to emphasise the need for the evidence to demonstrate, by a number of steps, how each element of s79 is satisfied and to provide reasons for conclusions and "to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions": at [59]. 292 A reading of the cases suggests that the strictness with which the courts approach questions of admissibility of opinion evidence is directly related to the doubtfulness of the claim to special knowledge. That is understandable. On the other hand, requirements in relation to what must be disclosed for the benefit of the trier of fact, as opposed to the judge ruling on admissibility, find no ready source in s79 of the Evidence Act. It seems likely that they must be evaluated by reference to the power to exclude evidence, the probative value of which may be outweighed by the danger of unfair prejudice to the defendant, pursuant to s137 of the Evidence Act. Again, the need to demonstrate the process by which an inference was drawn is less likely to be insisted upon with strictness in the case of a well-accepted area of expertise, than in other cases. Indeed, the greater the ability of the witness to explain the process of inference, the greater the likelihood that the existence of "specialised knowledge" will be doubted: see, eg, the differing attitudes expressed in Quick v Stoland (1998) 87 FCR 371 at 374F-G (Branson J), 381D-G (Emmet J) and 382F (Finkelstein J), in relation to views as to the solvency of a company expressed by a qualified accountant and registered auditor. 293 In the present case, the process of reasoning of Mr Westwood, as a handwriting expert, was well able to be assessed by the jury. As noted above, he explained the steps in his reasoning at some length, though not always with clarity. However, the challenge was not so much to the area of handwriting expertise as an area of specialised knowledge, but rather to specific opinions which were said not to be based on his specialised knowledge. The claim noted at [285] above, however, is directed to the process of reasoning, rather than the inference in which it resulted. The distinction does not involve a bright line test, but in the present case the challenge, based on admissibility, is not made out. In many respects, both the processes of reasoning and the strength of the opinions expressed were well open to challenge by way of cross-examination and indeed were challenged. What weight the jury gave to Mr Westwood's evidence is not known. 294 In the course of dismissing the objection to admissibility, the trial judge referred to the reasoning of the High Court in Velevski v The Queen (2002) 76 ALJR 402. At [82] Gaudron J commented on s79 in the following terms: "The concept of 'specialised knowledge' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which 'is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience'. So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. So much is expressly acknowledged by s80(b) of the Evidence Act ." 295 The gravamen of the attack was that the same pen was used for all the writing and that it was a pen with a water-based ink. Mr Westwood accepted that the ink had not been subjected to chemical analysis, but said that it was inspected under a microscope. That allowed Mr Westwood to describe the ink as viscous, as sitting on the paper and as containing traces of fibre. 296 The fact that other, possibly more accurate (though more invasive) forms of testing could have been undertaken does not demonstrate that the opinion as to the ink was not based on specialised knowledge. 297 The opinions expressed by Mr Westwood in the present case were that the handwriting on each of the relevant documents was by the same person. The trial judge accepted that his opinion was substantially based on specialised knowledge, which was in turn based on his training, study or experience. It was not necessary that each reason for reaching a conclusion was referable to specialised knowledge, nor that the process of reasoning was based on such knowledge. There was no error on the part of the trial judge in admitting this evidence. 298 The second element of ground 4 concerned similar 'one writer' opinions in relation to the Ord Minnett sponsorship agreement and application form. The challenge to these documents fails for the same reason. 299 Ground 5 complained that there was a miscarriage of justice because the basis of Mr Westwood's opinion was not put before the jury. In our opinion this complaint has not been made good. Mr Westwood explained in detail in chief and in cross-examination what his factual observations were and how he reasoned to the conclusions which he made. 300 A large number of other submissions were made under these grounds, principally directed to the quality of Mr Westwood's evidence, comprising arguments why he was not entitled to come to views that he did. However, those arguments, even if accepted, would not have affected the admissibility of the evidence. They might have affected its probative value but there was no risk of misuse of the evidence, so the probative value would have outweighed the risk of unfair prejudice. 301 Grounds 4 and 5 have not been made good. 302 Ground 6 draws a distinction between the opinions expressed by Mr Westwood in his first report and those expressed in his final report and at trial. The underlying assertion was that the several conclusions were in conflict, and that Mr Westwood did not resile from his earlier conclusions or assert that his later conclusions superseded or were superior to his earlier conclusions. 303 For reasons we have already expressed, we do not consider that there was any conflict between the later conclusions of Mr Westwood and the earlier conclusions. He explained how he worked once again through his processes of reasoning having been given additional documents, documents we consider significant. He explained why he came to the same conclusions with a greater degree of confidence in some instances. He nowhere came to any different conclusion. All that changed was, for some conclusions, the degree of confidence with which he held them. Nor was it explained why the prosecution was obliged to adduce evidence of superseded opinions. The defence had access to them and could (and did) seek to make use of them for its own purposes. 304 Ground 6 has not been made good. (2) The comparison documents 305 Ground 7 concerned the admissibility of certain documents used by Mr Westwood as a basis for his opinions with respect to the handwriting on key documents in the proceedings. Following his conviction at his first trial, the Appellant was sentenced to a period of imprisonment. While in prison, he wrote a letter to the managing director of his former employer, Macquarie Bank, Mr Alan Moss. The letter was a lengthy handwritten document and was provided to Mr Westwood for comparison with other specimens. The second disputed document was the envelope in which the letter to Mr Moss was contained. The third document was a form which emanated from the Department of Corrective Services and contained handwritten particulars concerning the Appellant. 306 In preparing its case, the prosecution did not assume that it could prove by extraneous evidence that the Appellant was the author of the handwriting on any of these three documents. Accordingly, it invited Mr Westwood to consider first whether the three documents were written by the same person as the so-called "known control documents", whose authorship could be independently demonstrated. 307 On 15 July 2002 his Honour delivered a judgment holding that the documents were admissible, on condition that the writing on the envelope was extracted and presented in a form which concealed the place from which it was posted and, in relation to the personal data form, by removal of material which revealed its source. 308 The bulk of the handwriting on the documents was to be found in the letter. As the trial judge noted, the refusal to concede the authorship of the letter was curious, as Mr Moss had given evidence, without objection, prior to the present issue arising that the letter had been received by him in late 1999 and was signed by the Appellant: Judgment at [14]. By the time the present appeal was lodged, authorship appears to have been conceded, so that no issue was raised in relation to the admissibility of the contents of the letter for this purpose. 309 The challenge to the admissibility of the two documents was based on s137 of the Evidence Act, which provides: 137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 310 The probative value to the prosecution was significant, though not overwhelming. Prior to obtaining the letter from Mr Moss, there had been a relatively limited amount of handwriting, which could be independently sourced to the Appellant, available for purposes of comparison. In varying degrees, the new material was relied upon by Mr Westwood for the expression of his various opinions, which were, as noted above, in some cases at a higher level of certainty than the opinions expressed by him before the first trial. 311 The focus of the discussion as to admissibility at trial related to the potential for unfairness to the Appellant. In substance the concern raised was that the defence would have difficulty challenging any conclusion that the handwriting was that of the Appellant without exploring its provenance within the prison system. Thus, it might be hypothesised that an attempt to demonstrate that his was not the handwriting on the personal data form, or even on the envelope, would require cross-examination as to the practices in prison with respect to the preparation of such documents. The expression "hypothesised" is used advisedly: both on appeal and in the hearing with respect to the admissibility of the evidence at the trial, there was a lack of clarity as to the means by which the challenge might be raised and the form which such cross-examination could take. 312 Before addressing the factual evaluation, it is convenient to identify the legal relevance of the objection, so identified. Section 137, as set out above, refers merely to "the danger of unfair prejudice" to the defendant. The section only refers to prosecution evidence and thus stands in contrast to s135 which makes similar provision in relation to evidence generally, including in civil proceedings and including with respect to defence evidence: see [330] below. That section requires that the probative value be substantially outweighed, and not by the danger of unfair prejudice to the defendant, but by the danger that "the evidence might … be unfairly prejudicial" to a party. Thus, in dealing with defence evidence, this Court held in R v Richards (2001) 123 A Crim R 14 at [39]: "The power vested by s135 is to refuse to admit evidence when there is danger that the evidence (my emphasis) might be unfairly prejudicial to a party. The proposed evidence in this case was that Cluff received a non-custodial sentence and it was not of itself unfairly prejudicial to the Crown. It was the possible consequence of the response which the Crown wished to make to the evidence which may have been prejudicial and, in a general sense, could be perceived in the circumstances to be unfair." 313 In Papakosmas v The Queen (1999) 196 CLR 297, McHugh J, in discussing the discretionary limitations on the use of evidence under s136 stated at [93]: "Some recent decisions suggest that the term 'unfair prejudice' may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act." However, it is clear from what follows that his Honour was more concerned with the introduction of discretionary limits on the use of evidence which would formerly have been inadmissible hearsay. Nor, in the passage cited with approval from R v BD (1997) 94 A Crim R 131 at 139 was the point being made that procedural unfairness could not be relied on under s137. 314 The form of ss 135, 136 and 137 differs. Just as s135 refers to the danger that the evidence might be unfairly prejudicial, s136 refers to the danger that a particular use of the evidence might be unfairly prejudicial. That language is not repeated in s137. This Court has dealt with the operation of s137 in R v Cook [2004] NSWCCA 52, in which Simpson J (Ipp JA and Adams J agreeing) stated at [36]-[37]: "What s137 called for was a consideration of the probative value of the evidence of flight relative to its prejudicial effect to the extent that that could or would be unfair. … The balancing exercising required by s137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise. … What the appellant told the judge was that his explanation for his flight would necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. There was no other way (on the appellant's case) that he could remove the sting from the flight evidence. But the explanation carried its own, serious, sting – disclosing his history of violence and breach of the law. … The prejudicial effect of the explanation was what s137 required to be balanced against the probative value the Crown evidence would otherwise have had." 315 In our view, that approach should be followed. There is no reason to read an implied limitation into s137, based on the different language adopted in the two preceding sections, nor otherwise to limit it according to former general law principles. Care must, of course, be taken in identifying unfair prejudice resulting from the practical consequences for the accused of admitting the evidence. Thus, the mere fact that, as a practical matter, an accused might think it impossible to resist the prosecution case without taking the risk of giving evidence, would not constitute unfair prejudice. The unfair prejudice relied upon in the present case, however, would provide a legitimate source of complaint if made out, because it would require the Appellant to disclose information that he was entitled to have excluded from the trial, namely his prior conviction and sentence for the charges before the jury. The question is, accordingly, whether that danger outweighed the probative value of the material in the prosecution case. 316 It is clear from his judgment that his Honour accepted that prejudice of this kind was an issue. His Honour considered that the danger of the prejudice identified in fact materialising was low because counsel had been unable to explain how it was likely to arise. 317 On the appeal, the Appellant argued that he suffered "unfair prejudice from their admission in this form as he was denied the opportunity to dispute they were written by him". He noted that the documents had been edited to remove the means by which it could be inferred that they had been sent from prison, the submission continued: "The judge permitted the Crown to tender the documents in an edited and scrambled form to remove this prejudice, but it had the inevitable consequence that once they were admitted, to contest that he wrote them he would have to have recourse to the original document and introduce details relating to his imprisonment. He would have had to adduce evidence, probably through Rudd, of his presence in prison, prison procedures relating to the completion of documents, inmates mail and visits." 318 The Appellant further argued that the unfair prejudice, far from being mitigated, was exacerbated by the fact that the prosecution had told the jury in summing-up that "no attempt was made by the defence to undermine the basis of any one or other of these documents" and that the judge had told the jury (AB 4426): "There does not seem to have been any real challenge to the authenticity of the specimen or control documents as samples of the accused's handwriting": Summing-up, p 206. 319 Whilst the Appellant has made out an arguable challenge to this aspect of the evidence, there are three reasons for not accepting his conclusion. First, although the envelope and the personal data form provided some increase in the specimen documents available to Mr Westwood, the bulk of the additional handwriting was to be found in the letter. Although it is true that Mr Westwood relied upon comparisons with specific writings contained in the former documents, it was not suggested that this constituted a critical, independent element underpinning his opinions. Secondly, as we understand it, the evidence given by Mr Rudd as to the provenance of the documents within the prison system would have been largely directed to routine practice, rather than specific evidence about the completion of the documents in question. As the Appellant did not give evidence, it is unlikely that any significant challenge to Mr Westwood's opinion would have resulted from evidence that the Appellant might not in fact have written the material in question. Thirdly, the underlying assumption is that unfair prejudice would flow to the Appellant from a revelation that a former jury had convicted him and he had served a period of imprisonment. 320 Later in the trial defence counsel wished to put into evidence certain documents obtained from a computer disk and considered that the argument for their authenticity would be supported by proof of the previous trial, the conviction and the sentence. Accordingly, defence counsel joined in the production and reading to the jury of an agreed statement of facts to that effect. Defence counsel obviously took the view that the risk of prejudice was slight and outweighed by the tactical advantage then taken. Most recently, the Appellant acknowledged that he was the writer of the letter to Mr Moss. However, for the purposes of the appeal, the trial must be viewed as a single proceeding, not a series of discrete, independent episodes. Once the jury had been told, with the agreement of the defence, that the Appellant had served a sentence of imprisonment, the potential unfair prejudice which might have attended the cross-examination of Mr Rudd, or some other witness, was dissipated. This Court does not know whether there was a tactical change in approach, and, if so, when it was made. Nevertheless, if there was some benefit to the defence in challenging the possible authorship of the writings on the envelope and the data form, an application could then have been made to recall witnesses, or tender other evidence. That step was not taken. Accordingly, no unfair prejudice resulted from the receipt of any of the evidence contemplated by this ground. This ground of appeal should be dismissed. 4. Progress of "Project Tennis" 321 It is convenient to turn next to certain challenges with respect to the admission of evidence, not addressed above. Ground 13(a) complained that the trial judge erred in admitting evidence "of events and occurrences in the progress of Project Tennis, including evidence of meetings held on the 12-18 September, and the outcome of the meeting on the 18 September relating to a possible offer for TNT by KPN at $2.45". However, without objection from the Crown, that ground was expanded dramatically in the written submissions to include virtually all aspects of the progress of Project Tennis, including: "(a) the actual occurrence of events and steps in the transaction (meetings in Hong Kong and Australia, meetings on June 22, the holding of board meetings on 15 July, progress of Ansett negotiations in August … (b) the meaning of codenames in the documents … (c) the purposes for which certain documents were prepared, including that certain valuations were prepared for the TNT Board to assess the fairness of a offer price and make a recommendation … (d) the fact documents Ex 123 and Ex 124 were prepared for TNT management in preparation for their resuming discussions with KPN … (e) the arrival of Goldman Sachs and KPN staff in Australia on the 12 and 13 of September and the holding of meetings between them and MCF and TNT's solicitors; meetings with TNT on the 13 September; continuing work undertaken on the weekend by MCF; the arrival of more senior Goldman Sachs staff on the 15 September and meetings with them and MCF of the 15 September; meetings between TNT and MCF on Monday 16 September; the arrival in Sydney of the Managing Director of KPN on the 16 September; meetings on 17 September between TNT, KPN, MCF; a final meeting on the 18 September at which MCF, Goldman Sachs, KPN, and TNT were present …; the departure of KPN and Goldman Sachs personnel shortly after that meeting; the continuation of MCF's work after that meeting on a Part B takeover statement … (f) … permitt[ing] … evidence of a conditional agreement at a figure of $2.45 arising from the meeting on the 18 September …" 322 Much of the evidence was also admitted at the first trial. On the first appeal, the Chief Justice noted that objection had been taken to various aspects of the evidence with respect to Project Tennis: at [305]-[315]. The Chief Justice also noted that some of the material was plainly relevant (at [307]), that some appeared to have relevance, though not on a basis supported by the Crown (at [308]) and that some might have been relevant to issues of general availability and materiality: at [310]. However, as his Honour expressly stated at [315] it was "not necessary to analyse the evidence in detail" and the comments made were not intended "to be exhaustive as to the way in which evidence of this character may be relevant to issues in the trial". (A retrial had been held necessary for other reasons.) It is therefore necessary to address the arguments raised at the second trial and on this appeal. 323 As the prosecution correctly noted in its written submissions in response on the appeal, the evidence complained of by the Appellant was referred to generically, the particular grounds of objection were not fully identified, nor were the bases upon which the trial judge admitted the evidence discussed in each instance. In a judgment delivered on 26 June 2002, his Honour ruled on a category of evidence broadly described in the following terms, which was sought to be led from Mr Poole, an executive director of Macquarie Bank, at [3] (AB 4708): "Evidence that meetings were held at Sydney on or about 12 September and 13 September 1996 and perhaps also on 17 September 1996 between representatives of Macquarie Corporate Finance and representatives of Goldman Sachs who were the financial advisers acting for KPN in relation to the proposed takeover of TNT." 324 The information contained in the proposed evidence had potential relevance in a number of respects. For example parts of the evidence could be useful for: (1) assisting the jury to understand the significance of documents to which the Appellant was alleged to have had access; (2) proving that the information was kept confidential, thereby supporting the prosecution argument that it was not generally available, and (3) explaining how the coincidence between the availability of information in MCF, the visits by the Appellant to MCF's office, and steps taken by the Appellant to obtain the option contracts led to the inference that he had the particularised information. 325 Apart from information not recorded in the documents as at 17 September, which significantly included the agreements reached at the meeting on 18 September, the background information was potentially relevant in a number of somewhat diffuse respects. Taken together, it tended to form a picture which was undoubtedly of some significance. The Appellant alleged that it was prejudicial, because the jury, uninstructed, would not have fairly distinguished between that which was information available to him, and that which was not. To the extent that instructions were required, their adequacy will be considered below; the precise nature of the prejudice, on the other hand, was not clearly identified in relation to the particular categories of evidence to which objection was taken. 326 For example, objection was taken to the meaning of certain code names used in the documents. Thus, the Appellant complained that only one document identified KPN as the potential bidder and that was a confidentiality agreement kept in hard copy in an arch lever folder behind Mr Poole's desk. However, the identity of the bidder was not a particular of the Crown case, so the information was not critical. On the other hand, the complaint is somewhat precious. The code name "Kapitain" was not entirely obscure; the documents contained discussion of price in Dutch guilders and, as the Appellant himself noted, publicly available material allowed Mr Myles at MEL to identify the Dutch Post Office as a possible purchaser, as it had recently purchased an interest in a European joint venture involving TNT, named GD Express. 327 In his written submissions, the Appellant sought to make some mileage from the fact that the trial judge had stated in his summing up (AB 4306): "I confirm what I said to the effect that the information particularised in the indictment contains information, not merely that it was likely in a general sort of way that shares in TNT Ltd would be the subject of a takeover offer from someone or other at a price in excess of $2.00 per share, but information that it was likely that shares in TNT would be the subject of a specific takeover offer from a specific offerer, that is KPN, and in connection with that specific potential takeover the Corporate Advisory Division of Macquarie Corporate Finance was advising TNT." 328 This passage, it was suggested, may make the identity of KPN a critical factor, although the particulars did not, and one about which there might be real doubt that the Appellant could know this from the documents available to him during the relevant period. 329 With respect, this involves the construction of a false issue. It effectively imposed an additional burden on the prosecution, but it was hardly a passage of which the Appellant could complain. The Appellant gave other examples in his written submissions, as examples of unfair prejudice, and noted that they could be multiplied. However, with respect, none of the examples demonstrates a risk of real prejudice, as opposed to a theoretical risk. The examples given identify hypothetical situations, about which the jury might not have had a view at all. In any event, the question of prejudice depends to a large extent on the directions given to the jury, a matter dealt with below. The issues are raised at this stage because, if it were thought that the evidence had some relevance, the alternative basis on which objection was raised invoked ss 135(b) and 137 of the Evidence Act. 330 Section 135 operates generally in relation to civil and criminal proceedings and provides a discretionary power to exclude evidence in the following circumstances: "135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time." The Appellant sought to rely on par (b). 331 He also sought to rely upon s 137, set out at [309] above, which applies only in criminal proceedings and which is mandatory in its terms. 332 As appears from the chronology of events set out at the beginning of this judgment, the Appellant would have known by the date of the presentation at Mt Bulla in late July 1996, if not before, that MCF was working on a major project for TNT. Documents were available in the offices at MCF, including an options paper dated 11 July 1996 headed "TNT – Project Tennis" which discussed a proposal to acquire TNT by a bidder identified as "K", in circumstances where TNT failed to effect a sale of its interest in Ansett to Air New Zealand. This material is clearly relevant and not prejudicial in the sense that it would be in danger of misuse by the jury. The documents referred to in [321] (a) were correctly admitted. 333 The question of "code names" referred to in [321] (b) has already been discussed and provides no demonstrable element of prejudice. 334 The purpose for which certain documents were prepared, including the valuations prepared for the TNT Board, constituted an integral part of progress towards a takeover bid, which was at the heart of the prosecution case. A Board update dated 15 July 1996 noted that "K has proposed Project Tennis to TNT". It continued (AB 6571): "Tennis poses these issues for TNT to consider: Ø Does Tennis represent fair value for TNT shareholders? Ø Does it involve an acceptable degree of completion risk? How can this be reduced? Ø Does Tennis compare favourably with other alternatives? Ø To what extent do market factors influence these decisions?" On the next page, the summary of Macquarie's views said that "the pricing range for Tennis discussed in Hong Kong represents fair value". Further on, the MCF document stated "our analysis indicates a price range per share of $2.22 to $2.94 (based on 803.6m shares)". There is then further discussion of pricing issues and alternatives. If the document were admissible, the evidence of Mr Poole as to the purpose of the valuation is also admissible, and, one would think, uncontroversial in the sense that it could not give rise to any real risk of prejudice. The objection at par (c) must be rejected. The same analysis and conclusion applies in relation to the reason given for the preparation of the documents referred to at par (d), being update documents on Project Tennis, dated 11 and 16 September 1996. 335 The next objection comes to the evidence of the arrival of overseas representatives of Goldman Sachs and KPN on 12 and 13 September 1996 and the holding of meetings with them on 13 September and subsequent dates up to and including 18 September. 336 The objection which was taken to this evidence can be seen from the transcript at 1133-1138 and his Honour's ruling by way of a separate judgment. The substance of the objection was that what happened after 17 September cannot have affected the Appellant's knowledge, on which he acted on 17 September. However, the prosecutor put admissibility on two bases. First, he argued that what happened on subsequent days, up until the date of the announcement on 2 October, was relevant to the question of maintenance of confidentiality and hence the non-availability generally of the information about the takeover bid. Secondly, the prosecution argued that it was relevant to subsequent conversations and actions that were taken by "Booth" with Mr Staehli, demonstrating further support for the contention that the Appellant and "Booth" were the same person. 337 His Honour substantially accepted the Crown arguments in his judgment of 26 June 2002 where he stated (AB 4713): "[23] It seems to me that the arguments the Crown seeks to put is based on the unlikelihood of the final steps in the negotiations in which representatives of Macquarie Corporate Finance were advising TNT and the taking of steps by Mr Hannes to acquire the options both occurring at about the same time, merely as a matter of coincidence without Mr Hannes being aware of those negotiations. It is an argument which the Crown is entitled to put. [24] In my opinion, the concurrence of timing between the holding of the final negotiations and the taking of steps by Mr Hannes, assuming that he was M Booth, to acquire the options is such as could rationally affect the probability of Mr Hannes being aware of those final negotiations. Such a concurrence of timing, at least in combination with other evidence could properly lead to the drawing of an inference by the jury that Mr Hannes did not acquire the options independently and without knowledge of the negotiations for the take-over. [25] At least one other basis on which the evidence is admissible is that the jury could find that the holdings of the meetings between the representatives of Macquarie Corporate Finance and Goldman Sachs remained confidential up to 2 October, and the fact that the holding of such meetings remained confidential is capable of tending to prove, not merely the confidentiality of those meetings, but also the confidentiality of the negotiations between the parties which had led up to the holding of those meetings." 338 The other evidence to which his Honour referred included evidence that the Appellant was in MCF offices briefly on September 15, 18 and 28. The actions of "M Booth" included speaking to Mr Staehli on September 17, opening the voice mail account on September 19, speaking with Mr Staehli on September 20 and again on September 30 about a possible sell-down of the options, the day before the announcement that the sale of Ansett had been completed and two days before the announcement of the takeover bid. 339 Leaving to one side the confidentiality issue, it is difficult to resist the inference that the real prejudice asserted by the Appellant was the strength of the coincidence between the actions of "M Booth" and the opportunities enjoyed by Mr Hannes to obtain particular levels of information. But that was a legitimate part of the prosecution case, which needed to establish that "Booth" was a pseudonym used by Hannes. The prejudice was not that which would flow from the implication of improper behaviour or from an invalid process of reasoning. It follows that his Honour was not in error in admitting the evidence, including evidence of what happened after the purchase order was placed on 17 September. 5. The announcement effect 340 The Appellant raised three grounds of appeal in relation to the effect of a public announcement on 2 October 1996 of the bid by KPN for TNT shares at a price of $2.45 per share. The grounds were identified as follows: "14 (a) The judge erred in admitting evidence of the prices and volumes of TNT shares and options on and following announcement of the takeover on the 2 October 1996 ('the announcement effect'), and the comparative options analysis of Mr Holubko. (b) There was an error of law, or alternatively, a miscarriage of justice because the judge did not limit the use of the announcement effect in relation to the third and fourth element[s] of count 1, and the use of the comparative options analysis in relation to proof of the second element of count 1. (c) There was a miscarriage of justice because the judge in his summing up failed to give the jury adequate or comprehensible directions on the use they could or could not make of: (i) the announcement effect in relation to the third and fourth element of count 1; and/or (ii) the comparative options analysis in relation to the second element of count 1." 341 Despite some differences in terminology, there were, in effect, two challenges, as identified in ground (c). The content of ground (b) does not raise materially different issues. Ground (a) involves a challenge to the admissibility of the evidence. 342 In addition to the grounds as particularised, in his written submissions the Appellant raised a separate point in relation to the use of the evidence to establish his knowledge of the particularised information. That complaint, so far as it related to admissibility, may have fallen within ground 14(a); his complaint in relation to the inadequacies of the summing-up did not, but no point was taken in that respect. In any event, for reasons which will be noted below, the Appellant's challenge on this basis involved, in one sense, the converse argument to his challenge with respect to materiality (being the fourth element of the charge). Thus, in relation to the materiality, his complaint was that evidence of what happened in the marketplace following an announcement of an offer at $2.45 did not assist the jury and, indeed, was apt to mislead, because the jury needed to be satisfied of the materiality of the particularised information according to its terms, which could have involved an offer only marginally above $2. In other words, because the securities in question became the most effective security to purchase, at the mid-September prices, only if the offer exceeded about $2.25, the actual offer provided no assistance in assessing the materiality of an offer at $2.01, with respect to the same securities. On the other hand, the prosecution sought to rely on the effects of the announcement and the analysis of the price of the options for precisely that point, namely to establish that the Appellant had knowledge of the likelihood of an offer in the $2.40-$2.50 range. In other words, he had access to information which satisfied the particulars, which could only have been obtained from his position inside MCF. So far as the first element of the charge was concerned (possession of information) the fact that it was at a price substantially higher than $2 was beside the point: subject to two qualifications addressed below, it was relevant and admissible for that purpose. 343 The Appellant sought to challenge its relevance on the basis that the exact price of $2.45 was not fixed until 18 September 1996, after the options had been purchased. If, as the Appellant suggested, the prosecution had indicated otherwise in its address, that statement would have been incorrect. It is true that there was a reference in the prosecutor's address to the fact that the jury could "infer Mr Hannes had knowledge from the fact that he bought $2 call options … that a takeover would come well in excess of $2 at $2.45": Tcpt 3106 (25). However, there are extensive references which do not suggest such precise information, including, at Tcpt 3869 (25): "According to documents that were later produced and which were accessible to, and we submit accessed, by Mr Hannes, in Hong Kong, KPN had an initial price range of $2.20 to $2.40 but a gap of 10 cents emerged. In other words KPN indicated that it was thinking of offering up to $2.40 and TNT was thinking of $2.50." 344 We do not think that the prosecutor would have been understood to be saying that he had actual knowledge of a price which only emerged after the purchase: in any event, it was a misapprehension which was easily correctable by the defence and by the judge in his summing-up. The summing-up, and the defence response to it, are dealt with below. 345 It is convenient to return to the two qualifications noted above. The first is that, if the evidence were admissible in one respect, but not in others, it was necessary for the jury to be advised as to how they could use evidence. This matter will be discussed further below. The second qualification concerns the way in which the prosecution used the evidence with respect to the knowledge possessed by the Appellant. In substance, it sought to use the circumstantial evidence that an offer at a particular price would have a foreseeable effect on the price of various option contracts to invite the jury to infer that the person who expended a significant sum of money on those option contracts had the relevant information. In particular, the jury could infer that the purchaser was indeed the Appellant and, secondly, that, at the time he made the purchase, he had the relevant state of mind. 346 As will appear below from the discussion with respect to the summing-up, it is clear that the evidence was relevant. The only question was whether the Court was entitled, or required, to exclude the evidence because it might be unfairly prejudicial or the danger of unfair prejudice might outweigh its probative value, for the purposes of ss 135 and 137 of the Evidence Act. After hearing counsel in respect of these issues, on 23 May 2002, his Honour delivered a judgment accepting, in substance, that it would be necessary to give clear directions to the jury as to how they might use the evidence, but concluding that could be done. Unless it proved impossible to give the foreshadowed direction, effectively, that conclusion should be accepted. The directions given must be duly assessed, but unless they were inadequate or in error, the challenge to the admissibility of the evidence is not made good. 347 In relation to the question of admissibility, the Court was invited to distinguish two Australian authorities, including the earlier appeal involving the Appellant, and follow a US authority. 348 In the first appeal, R v Hannes (2000) 158 FLR 359, Spigelman CJ dealt with both the relevance and directions with respect to similar evidence (at [297]-[299]). Thus, on the first appeal the submission was put that the events which actually transpired after the announcement of the takeover would be of a "qualitatively different nature" from the information which particularised merely a "prospect of a takeover": [297]. To this, the Chief Justice responded at [298]: "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." 349 The Appellant sought to distinguish the first appeal on two bases: first, there was no challenge to the admissibility of the evidence at the first trial and, secondly, the terminology of the particulars, namely a "prospect" that a takeover offer would be made, was found to involve "an element of 'probability' rather than mere 'possibility'": [277]. These distinctions are, in their terms, correctly drawn, but do not have a material effect on the reasoning of the Chief Justice in the first appeal. With respect to the first, it is clear that the submission in relation to the directions placed weight upon the fact that the subsequent effects were "irrelevant" to the materiality of a prospect that an offer would be made. The point appears to have been dealt with in the abstract, rather than by reference to the specific terminology of the summing-up. Because the challenge identified in the first appeal went to the directions to the jury, it should be accepted as not governing the outcome of the present appeal in respect of different directions, or in respect of admissibility. However, this point is pertinent to the weight to be given to reliance on the judgment of the Chief Justice in the first appeal, in the next case to be discussed. The second point of distinction is also of limited import. His Honour derived the element of probability from the use of the word "would" in the particulars, a word which also appears in the present particulars in the same place. Whatever the jury may have made of the term "likely", it is doubtful that it was given a lesser degree of likelihood than "prospect". 350 The second authority sought to be distinguished was the discussion in the reasons of this Court in R v Rivkin (2004) 59 NSWLR 284; (2004) 184 FLR 365. In that case, which also involved an insider trading charge, evidence had been called with respect to the effect in the marketplace of an announcement, which contained information said to be "more detailed and positive" than that particularised. A challenge was made to admissibility based on the extremely slight relevance or probative value which it might have and the danger of unfair prejudice: at [189]. The judgment of the Court (comprised by Mason P, Wood CJ at CL and Sully J) rejected the suggestion that, in some abstract way, the Court could determine whether or not the evidence should be disregarded as irrelevant. Further, whilst reliance was placed on the remarks of the Chief Justice in the first Hannes appeal, their Honours clearly appreciated that the ground which was the subject of comment concerned the directions and not admissibility: 184 FLR 365 at [194]. The conclusion reached at [197] was expressed in the following terms: "It is true that were differences between the particularised information and the public announcement, although there were a number of similarities … . His Honour clearly recognised that the jury needed to exercise care in this regard, and to give proper attention to the fact that the public announcement was in a more detailed form than the information upon which the Crown case was based." The challenge made by the Appellant in that case was rejected. 351 Neither of these decisions is authority for the proposition that evidence will necessarily be admissible of the actual effect of a subsequent release of information said to have been the basis of insider trading. Factors which will be relevant to admissibility will include an assessment of the likelihood of unfair prejudice eventuating and the ability of the trial judge, both when the evidence is tendered and in the final summing-up, to direct the jury in a manner which will obviate the danger of prejudice. Further, the probative value of such evidence will undoubtedly vary from case to case and will depend in part on which element or elements of the charge the evidence may support. In particular, where the evidence goes to questions of general availability or materiality, it must be borne in mind that the jury is invited to speculate as to whether information has been made known in a manner likely to bring it to the attention of persons who commonly invest in securities of a particular kind and whether a reasonable person would be taken to expect such information to have a material effect on the price or value of the security. The actual effect of the release of the information to the marketplace is not necessarily without probative value in answering those questions. The possibility that other factors may have affected the market for a particular security at a particular time must always be borne in mind, but to reject information as to price movements out of hand on that basis is at least to risk inviting the jury to speculate, without the assistance of the only concrete evidence which might be thought to provide some assistance in undertaking that evaluation. 352 There is then a question as to whether that conclusion is inconsistent with the US authority to which the Court was directed. The case was Reiss v Pan American World Airways Inc 711 F.2d 11 (2d Cir. 1983). In that case, the Court of Appeals relied upon its earlier decision in Securities and Exchange Commission v Texas Gulf Sulphur Co, 401 F.2d 833 at 863 (2d Cir. 1968) for the proposition that a claim of non-disclosure must be viewed "in the light of the facts existing at the time of the release" and continued that "hindsight is of limited value and the fact that ultimate disclosure of the negotiations affected stock price is not compelling". This conclusion was not addressed to admissibility of evidence, but rather the inference which might be drawn from it. Further, the non-disclosure upon which the claimants in those proceedings unsuccessfully relied involved negotiations by Pan Am to purchase another airline. The failure to make disclosure at the time debenture holders were invited to redeem their entitlements by taking up stock which they then sold, was alleged to be misleading conduct on the part of Pan Am. There are two important points of distinction, in addition to the fact that admissibility was not in dispute. The first point is that what was in issue was not the materiality of the information as to the negotiations, but whether the failure to disclose was misleading, an issue to which any increase in the value of the stock after disclosure was clearly not compelling. Secondly, to describe a change in stock price as "of limited value" is different from saying it has no probative value. 353 Both the danger of drawing general rules from cases determined on particular provisions and facts, and the danger of drawing such rules from authorities in other jurisdictions which apply different statutory provisions, are illustrated by the decision of the same Circuit Court of Appeals in United States v Libera, 989 F.2d 596 (2d Cir. 1993), a case involving a prosecution for trading in confidential information, obtained in breach of a fiduciary duty. In that case, the Court held that information could be considered public, even though there had been no public announcement of it and only a small number of people knew of it. The court continued (at p 601): "The issue is not the number of people who possess it but whether their trading has caused the information to be fully impounded into the price of the particular stock. Once the information is fully impounded in price, such information can no longer be misused by trading because no further profit can be made. However, trading on stolen information that is not fully impounded in price is a misuse of such information whether or not others are also trading on it. … Because appellants concede that the increase in trading volume and price of the securities in question continued after the release of the magazine to the general public, the jury was correct in finding that the information was not fully impounded in the price at the time of appellants' trades and was not public … prior to the magazine's release." 354 While it is readily apparent that the law in question in that case was a materially different form of insider trading prohibition to that with which the present charge is concerned, the reasoning nevertheless demonstrates that evidence of subsequent trading is treated in US law as potentially relevant to issues similar to that of "general availability" under Australian law. 355 Before turning to the substance of the complaint with respect to the summing-up, it is necessary to reiterate a comment made above in relation to the value of the $2 option contracts. As at 17 September 1996, when they were purchased, their value was 1.5 cents-2 cents per share. There was a period of two months until they expired. As noted by Mr Holubko, an experienced options dealer, the time until expiry was significant because, even if the share price did not rise above the strike price, the value of the options would nevertheless tend to increase, so long as there was time before they expired. The purchaser of call options is, at all stages, acting in the belief that the share price will increase. (Mr Goldberg, a chartered accountant and stockbroker, gave evidence to similar effect.) 356 In substance the complaint about the directions of the trial judge in relation to this material is dealt with below in considering the issue of materiality more generally. 357 It is convenient now to turn to the challenge made with respect to the summing-up to the jury. It was at this point that, as has already been noted, the potential for prejudice arose from the way in which the prosecution had particularised the information on which it relied. Thus, perhaps with the intention of improving its prospects of establishing that the Appellant had the relevant knowledge, it placed the bar at a low level, requiring only that it was likely that a takeover offer would be made at a price in excess of $2. It did not set itself to establish that an offer would be made at a price in excess of $2.25, let alone at a price of $2.45. Accordingly, by establishing that the Appellant might have possessed information about a likely takeover offer at $2.40-$2.50, the need arose to distinguish clearly by way of directions to the jury that general availability and materiality needed to be established at the lower, not the higher, level. 358 A direction was given in considering the elements of the information particularised, (at Summing-up, p 47) in the following terms (AB 4267): "Information about a takeover offer which has actually been made is different from information about the likelihood of a takeover offer, even the likelihood of a specific takeover. The information particularised in the indictment includes information that it was likely that shares in TNT Limited would be the subject of a takeover offer at a price in excess of $2 per share, which would include any price exceeding $2 per share, by however small an amount. The information about the actual takeover offer announced on 2 October includes information that the price offered was $2.45 per share, that is, a specific price exceeding $2 by an amount of 45 cents. You must also carefully distinguish the information particularised in the indictment from information conveyed in any conversation or at any meeting at which the accused was not present and hence could not have heard what was said." 359 Again, in directing the jury in relation to "general availability" his Honour told them that they could, if they saw fit, have regard to the large increase in the share price after the public announcement of the takeover offer "as being relevant to whether at the time of the purchase of the option contracts on 17 September the information particularised in the indictment was not generally available": Summing up, p 72 (AB 4292). Further, he gave them a specific caution in using the evidence for that purpose, in the following terms (AB 4293): "The information which became generally available on 2 October was information of an actual takeover offer, as distinct from merely the likelihood of a takeover offer. Furthermore, the information which became generally available on 2 October was information of an actual takeover offer at a price of $2.45 per share, that is at a specific price considerably exceeding $2 per share. There is also the fact that KPN was actively buying shares on the market on 2 October, helping to drive the price up." A similar direction was repeated on 2 September at Summing up, p 107 (AB 4327). 360 With respect, we do not think it has been shown that the jury would have been confused by these directions. That about which the Appellant complains was stated on three occasions at least, in terms which were not unfavourable to the Appellant. Repetition is not always desirable, but in matters of some complexity, it may be of assistance to the jury. The restatement of the direction in substantially similar terms leaves little room for the complaint as to inadequate or confusing directions. No further direction was sought in that respect by the defence. The various elements of ground 14 are therefore not made out. PART C: The insider trading charge – Background and pleadings 1. Introduction 361 The charge, including its particulars and the 'elements' identified for the jury are set out at [18] and [161] respectively above. The principal focus of the Appellant's challenge in relation to the elements of this charge was directed to the effect of the first particular identified in the indictment concerning the information he possessed. The information was identified in the following terms (AB 11): "It was likely that shares in TNT Limited would be the subject of a takeover offer at a price in excess of $2 per share." 362 As noted above, the Crown sought to establish that the Appellant knew of an in-house valuation of TNT Ltd at $2.25 per share and knew that an offer was likely to be made by KPN in the range $2.40-$2.50 per share. However, the particular did not specify a price, or even a price range: it merely specified a floor price, namely $2. That meant, the Appellant asserted, that the Crown must accept the consequences of any finding at a price in excess of $2, including $2.01. 363 This position was beneficial to the Appellant in a number of respects. First, he argued, information of a takeover at $2.01 would not induce a rational person to buy $2 November call options at a cost of 1.5 or 2 cents. More generally, the lower the anticipated takeover price, the lower the expectation that the information would have a material effect on the price of the particular securities which were purchased, namely $2 November options. Thus, he argued that until the price reached $2.25, it would have been more beneficial to purchase $1.65 November options. Further, the lower the level of particularised information about the offer, the easier it would be to convince the jury that the information was generally available in the marketplace. 364 Thus, the gravamen of the complaint was that the prosecution had departed from the case particularised in the indictment and had left the jury with a case based on information as to an offer at $2.40-$2.50, or even a precise offer at $2.45. 2. Statutory scheme 365 In order to understand the various elements of the argument thus presented, it is necessary to turn to the statutory elements of the offence. Section 1002G is in the following terms: 1002G Prohibited conduct by person in possession of inside information (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; the following subsections apply. (2) The insider must not (whether as principal or agent): (a) subscribe for, purchase or sell, or enter into an agreement to subscribe for, purchase or sell, any such securities; or (b) procure another person to subscribe for, purchase or sell, or to enter into an agreement to subscribe for, purchase or sell, any such securities. 366 The concept of "material effect", in the phraseology of sub-s (1)(a), is further defined in s1002C, in the following terms: 1002C Material effect on price or value of securities 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 subscribe for, buy or sell the first-mentioned securities. 367 The provisions of Division 2A are complex and were stated to be so by the trial judge. They operate by reference to definitions of terms including "information", "purchase", and "securities" (s.1002A). 368 Section 1002G of the Corporations Act 2001, which created the statutory offence, has four elements:- (a) The insider purchases "securities" . (b) A person (the insider ) possesses information that is not generally available. (c) If the information were generally available , a reasonable person as described would expect it to have a material effect on the price or value of securities of a body corporate. (d) The insider knows or ought reasonably to know two matters:- (i) that the information is not generally available ; and (ii) that if it were generally available, it might have a material effect on the price or value of those securities. 369 The provisions of s1002G(1) and (2) involve, accordingly, a number of concepts, some of which involve state of mind type issues (in particular 'knowledge') and specific acts (eg., "subscribe for, purchase or sell, or enter into an agreement …"). The significance of information and knowledge in terms of the particulars and their relevance to the evidence in the proceedings will be addressed below. 3. Analysis of the statutory offence 370 An offence under s1002G, in general terms, is constituted by an insider doing one or other of the acts identified in s1002G(2) (subscribe, purchase, sell, etc.). In terms of the present proceedings, the foundation of the charge was particularised as the purchase by the Appellant of the TNT $2.00 November 1996 Options whilst in possession of information that may, in general terms, be said to have been "confidential" information being information of a certain quality or kind, namely, that which would or would be likely to have the "material effect" as prescribed by s1002C. 371 The elements in the insider trading charge have been identified in paragraph [161] above. These may be summarised in these proceedings as essentially that the Appellant was: • an insider; • who purchased the securities; • that he did so with certain "information" ; • that was not generally available (general availability); and • which, if known to relevant investors, would be expected to have the material effect on price or value of the securities referred to in s1002G(1) (materiality); and further • that he, the Appellant, knew, or ought reasonably to have known, that the information was not generally available and that if it were so available, it might have a material effect on price or value (the mental element). 372 As Young J (as he then was) observed in Exicom Pty Limited v Futuris Corporation Limited (1995) 123 FLR 394 at 398; (1995) 13 ACLC 1758, the theory behind insider trading was that it constituted a breach of fiduciary duty. In the United States, even before the Securities Act 1933 (US), his Honour observed, the obtaining of insider information was considered to be an appropriation of corporate property and a breach of fiduciary duty owed to the corporation. His Honour observed at 398: "Although the matter is now statutory, the earlier American cases on the statute did still continue to develop this particular line of thought." 373 In Regina v Firns (2001) 51 NSWLR 548 at 556 to 558, Mason P examined the theories that have been offered as a basis for prohibiting insider trading. 4. Overview as to issues concerning elements of the charge of the insider trading offence 374 The first element of the insider trading offence (possession) of "information" (namely, the information particularised in paragraphs (i) and (ii) of the Particulars in the indictment) is directed to information within the personal possession of the insider. The Crown contended that the Appellant had possession, inter alia, of information as to the actual takeover offer that was likely to be made and so prove that TNT would be the subject of a takeover offer at a price in excess of $2.00 per share. 375 Accordingly, the "information" on which the Crown relied for each of the purposes for which that word is employed in s1002G was as described by Spigelman CJ in Regina v Hannes (2000) 158 FLR 359 at 365: "… 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 Macquarie Corporate Finance was advising TNT in connection with that take-over and, finally, that Macquarie Corporate Finance had placed securities in TNT on an embargo list. All four of these aspects were part of the Crown case." 376 The Crown, in its submissions on this appeal (paragraph 1036) emphasised that the particulars in the information included the potential for a price rise generally above $2.00 and did not exclude the possibility of an increase in TNT shares beyond $2.00. The particulars, in other words, were not limited to a "price specific" amount such as that referred to by the Appellant, namely, $2.01 per share. 377 Issues concerning ambiguity or uncertainty in relation to the particulars in the indictment are discussed later in this judgment. It is sufficient at this point to observe that the elements of the statutory offence of insider trading provide an important context within which to identify the level of precision that is required in the formulation of a particular charge. In particular, in this regard, the expansive definition of "information" in s1002A is a relevant factor. The position arising in that respect stands in contrast to provisions of former s75A of the Securities Industry Act 1970 (NSW) which referred, inter alia, to "… a person has knowledge of specific information relating to the corporation or body or to securities issued or made available by the corporation or body …". 378 The second element (general availability) is directed to whether the information particularised in paragraphs (i) and (ii) of the Particulars if made known to certain persons, namely, persons who commonly invest in securities of bodies corporate, is of a kind which would or would be likely to affect the price or value of such securities. The Crown relied, amongst other evidence, on that of Mr Goldberg, to whom reference has earlier been made (paragraph [151]). He gave evidence to the effect that as at 17, 18 and 19 September 1996 there had been no movements in the stock market indicating general knowledge in the market of the likelihood of a specific or actual takeover of TNT or of a likely takeover in excess of $2.00 (AB 3587). 379 The Appellant has contended that there was information in the market place concerning the possible takeover of TNT. It is, however, important to bring to account both the nature of such "information" and all of the material contained in paragraphs (i) and (ii) of the Particulars as the relevant "information". In Hannes (supra), in relation to a body of evidence in the first trial as to (i) which included brokers' reports and newspaper articles on TNT, Spigelman CJ observed (at pp.402-403): "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 Macquarie Corporate Finance 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. 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." 380 In Hannes (supra), Spigelman CJ (at p.403) also observed that the content of the brokers' reports in the first trial was of a character which was appropriately described in the Crown's submissions as "speculative" . In that appeal, the reports were treated as relevant to the issue of whether or not the information particularised had become "generally available". The Chief Justice concluded that "nothing in these documents went beyond market consideration of TNT's vulnerability to 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". Reference will again be made to evidence relied upon by the Appellant on the issue of general availability. 381 In relation to a similar argument raised in the present appeal by the Appellant as to information on TNT being available in the marketplace, the Crown contended that the observations of the Chief Justice as set out above have equal relevance in the present appeal. 382 It is of some importance in relation to this second element to observe that, even if it can be said that aspects of the particularised information were generally available, that did not lead to the conclusion that the particularised information as a whole was generally available. In that respect, there is a difference, for example, between speculation as to a "takeover valuation", on the one hand, and information as to the likelihood of a particular takeover, on the other. It was the combination of information particularised which was significant in relation to the offence charged. 383 The Appellant has not in this appeal established that the information in brokers' reports and other materials referred to was of the same character as the information particularised in the indictment. 384 The third element, materiality, is concerned with investor conduct and, more particularly, with the question as to whether the particularised 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 specified securities: s1002C and s1002G. This might generally be said to be concerned with the capacity of information to influence investor behaviour which, in turn, has a material effect on price or value of securities. Accordingly, materiality is concerned with information which might be said to be price sensitive. 385 The particularised information must be material to the class of securities in question: Hooker Investments Pty. Limited v Baring Bros. Halkerston & Partners Limited (1986) 5 NSWLR 157 at 162; 10 ACLR 524 at 528; Exicom Pty Limited v Futuris Corporation Limited (1995) 123 FLR 394 at 399; (1995) 13 ACLC 1758 at 1763 and for the purposes of materiality, the information must be assessed objectively in the context of what is generally available. 386 Whatever level of information that the Crown had shown on the evidence to have been within the possession of the Appellant was an issue separate from the information generally available to investors in the market place and to information that could affect investor behaviour and the value and price of securities. An issue has been raised in this appeal as to whether ambiguity or uncertainty arose in relation to those matters having regard to the particularised information, the basis upon which the Crown put its case to the jury and the trial judge's directions. 5. Uncertainty in criminal pleadings 387 Because we have reached a different conclusion to Basten JA on issues of claimed duplicity, ambiguity and/or uncertainty said to arise from the particulars in the indictment, the evidence in the proceedings and the way in which the Crown is said to have conducted the prosecution, we set forth below relevant principles and then proceed to deal with relevant issues in the light of such principles. 388 Questions of uncertainty or ambiguity in criminal pleadings have arisen in a variety of cases. In some, there is a need to distinguish between duplicity and other bases upon which a complaint may be said to be defective in substance. 389 The common law rule against duplicity distinguishes between patent duplicity and latent duplicity: Walsh v Tattersall (1996) 188 CLR 77 at 100 per Kirby J. The High Court in Johnson v Miller (1937) 59 CLR 467 did not decide the issue that arose in that case in terms of duplicity. The question was whether the complaint was defective in substance. In dealing with that matter, however, the Court proceeded to make a number of observations on the principles relevant to duplicity: see Walsh (supra) at 86 per Dawson and Toohey JJ. 390 In the application of the common law rule against duplicity, a great deal depends upon the nature of the offence: Walsh (supra) at 109 per Kirby J. His Honour there observed latent duplicity may be manifested by the way in which evidence is presented to support the charge. 391 A duplicitous count may be productive of prejudice as, for example, by evidence being wrongly admitted or incorrect directions being given to the jury: S v The Queen (1989) 168 CLR 266 at 285 per Gaudron and McHugh JJ. 392 The standard imposed by well-established rules of practice in criminal proceedings requires that fair information and reasonable particularity as to the nature of the offence charged be given to a defendant: Johnson (supra) per McTiernan J at 501, citing Smith v Moody (1903) 1 KB 56. See also John L Pty Limited v Attorney General (NSW) (1987) 163 CLR 508, 521 per Mason CJ, Deane and Dawson JJ. 393 A defect in a criminal pleading may arise due to a deficiency in particulars, as for example, in specifying the factual matters said to support the charge. Such a deficiency may give rise to ambiguity capable of creating prejudice for a defendant. 394 The question raised by the ground of appeal under consideration in the present proceedings is not concerned with an issue of duplicity or ambiguity as to the existence of more than one offence. In Johnson (supra), the position was the converse – the prosecutor was required to identify out of a number of sets of facts, each capable of amounting to the commission of the same offence, the particular set of facts on which it was said the charge was based. It was in that sense necessary for the prosecutor to identify "the transaction" on which he relied. This requirement was based, as Dixon J observed at 489, upon the fact that a defendant is entitled to be apprised, not only of the legal nature of the offence with which he is charged but, the particular act, matter or thing alleged as the foundation of the charge. 395 The question in these proceedings as to possible duplicity, ambiguity or uncertainty calls for close attention to two matters: (a) Firstly, to the specific characteristics of the substantive offence in Count 1. (b) Secondly, to the particulars pleaded in the indictment. 396 In the consideration of the issue referred to by Basten JA as "uncertainty of convictions", it is essential to relate the ingredients of the insider trading offence (Count 1) to the particulars of the indictment. The legal nature of the offence alleged in Count 1 as prescribed by the provisions in Division 2A – Insider Trading will be discussed below. 6. Principles as to the form of an indictment 397 In Regina v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281; (2005) 223 ALR 580, at [52]-[53], Spigelman CJ stated: "Most of the functions performed by the process which initiates criminal proceedings, particularly an indictment for serious offences, have been fully satisfied by the precise terms of the charge appearing, as it does, in the same form in the various indictments. These include (i) Informing the court of the precise identity of the offence with which it is required to deal (John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 519). (ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients (John L (supra) at 519). (iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law (S v The Queen (1989) 168 CLR 266 at 284, 285). (iv) Determining the availability of a plea of autrefois acquit and autrefois convict (S v The Queen (supra) at 284; Walsh v Tattersall (1996) 188 CLR 77 at 90, 110-111). Of particular significance for the present case is a fifth function performed by an information: (v) To invest the trial court with jurisdiction to hear and determine the prosecution (John L (supra) at 519)." 398 In John L Pty Limited v Attorney General (NSW) (supra) at 519, Mason CJ, Deane and Dawson JJ referred to the underlying requirement that an information inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed: "The rationale of that requirement has, in more recent times, commonly be seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet." 399 The joint judgment refers to dicta in Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 at 166 in the following terms: "… an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence." 400 Mason CJ, Deane and Dawson JJ in John L (at 519) referred to legislation enacted to render summary proceedings before justices less open to technical objection but observed that such legislation did not go so far as to abrogate the requirement "… that a valid information must at least identify the essential factual ingredients of the actual offence": see, eg., Smith v Moody (supra) at 60; Johnson (supra) at 486-487, 501; Ex parte Graham; re Dowling (1968) 88 WN (NSW) 270 at 280. 7. The particulars in the indictment charging the offence of insider trading (the "particularised information") 401 The Appellant contended that there was a miscarriage of justice associated with the particulars in the indictment in three respects. The first concerns the question as to whether the Crown departed from the "particulars of information" in the indictment in paragraph (i) of the Particulars. The second concerns the meaning of the word "likely" in that paragraph of the Particulars in the expression "it was likely that shares in TNT Limited would be the subject of a takeover offer at a price in excess of $2 per share". The third concerns an issue as to whether the jury were permitted to determine the element of possession of information on a basis that did or may have differed from the basis upon which the jury was permitted to determine the elements of general availability and materiality, notwithstanding that the particularised information had to be applied uniformly or consistently with all three elements. If so, relevant ambiguity or uncertainty is said to have arisen. 402 Before examining each aspect, the following comments are made by way of preliminary observation. The Appellant's submissions concerning the element of "possession" firstly require a consideration of whether, as he contended, the Crown went beyond the particulars which referred to a likely takeover "in excess of $2 per share". Secondly, whether the trial judge's directions to the jury on the matter were adequate and appropriate in ensuring that there was a consistency in approach in the application of the particularised information to the three elements to which reference has been made above. 403 The second of the three matters identified in the preceding paragraph (the meaning of the word "likely", in paragraph (i) of the Particulars) requires a consideration as to whether the trial judge was required to direct the jury as to the meaning of the word and whether his decision not to give such a direction was a correct decision. A related matter is whether any uncertainty or ambiguity arose in failing to instruct the jury in that respect in the circumstances of the trial which included submissions made by the Crown as to how the jury should interpret "likely". 404 It is convenient to revisit the terms of the indictment and particulars of Count 1, set out at [18] above. 405 In the discussion of issues in this judgment from this point, paragraph (i) of the Particulars of Information as set out at [18] above will be referred to as "paragraph (i) of the Particulars". 8. Grounds relating to particulars 406 It is convenient to deal first with the complaints made by the Appellant in relation to the form of the particulars of information. Grounds 18 and 19 being of particular relevance for present purposes, read: "18 (a) There was a miscarriage of justice because a case for conviction on count 1 was put to the jury which was outside the Particulars in the indictment in relation to: (i) the likelihood of the prospect that TNT would be subject to a takeover at in excess of $2 (ii) whether TNT had been placed on the embargo list because of the potential takeover (iii) whether every part of the information in the Particulars satisfied the third and fourth elements of the offence (was not generally available and was material) (b) Alternatively, there was a miscarriage of justice because the information the subject of count 1 was not adequately particularised in response to a request by the appellant in relation to the matters listed in (a) above. 19 There was a miscarriage of justice because: (a) the judge permitted the Crown to make submissions to the jury about what it "meant" by "likely" in the indictment; and/or (b) of the judge's comments on the meaning of "likely" to the jury; and/or (c) the judge prevented the appellant from putting contrary views to the jury." 407 The second ground relevant to the form of particulars was ground 24 which read: "24 There was an error of law or a miscarriage of justice on count 1 because: (a) paragraph (i) of the Particulars was an inference from other pieces of information said to have been possessed by the appellant; and/or (b) paragraph (i) of the Particulars was wide, vague, indeterminate and uncertain and not defined with sufficient precision; and/or (c) the information upon which the inference in paragraph (i) was based was not identified with sufficient precision in the indictment or to the jury; and/or (d) the jury were not directed that paragraph (i) had to be not merely an inference the appellant drew, but the only reasonable possible inference from the information the appellant possessed (or a reasonable inference or a possible inference)." 408 The form of the indictment was the subject of pre-trial correspondence between the Appellant and the Director of Public Prosecutions, and was the subject of a motion, heard on 2 October 2001. Ground 24 articulated the substance of one objection taken to the form of the indictment, namely that it contained an inference, rather than specific information and that the information from which the conclusion might have been drawn was not particularised. During the course of legal argument put by senior counsel for the defence, his Honour noted that "information can include matters of which the insider has been informed by someone else, matters which the insider has himself observed and matters which the insider has inferred or deduced from matters of which he has been informed or matters which he has observed". No challenge was made to that statement and the issue was not addressed in the judgment of 6 December 2001, which ruled on other aspects of the motion. Although the point had not been abandoned, the focus of the challenge had moved from the legal argument to the question of particularising the underlying information, a process which was undertaken by the Crown. The legal issue, however, remained alive for consideration on this appeal. 409 The high point of the Appellant's submissions in this regard was the reliance placed upon the decision of Lee J in Ryan v Triguboff [1976] 1 NSWLR 588. That case concerned an offence under the Securities Industry Act 1970 (NSW) based on knowledge of "specific information" alleged on the part of the defendant. The information relied on in that case was identified as knowledge that a company known as Dominance NL "was prepared to purchase a large parcel of shares in" a second company known as Kimberley Mineral Holdings Ltd. The defendant had such knowledge from his active participation in negotiations with Dominance NL. That inference or deduction was addressed by his Honour in the following terms at 597E-G: "In my view, the deduction so made cannot be held to be within the expression 'specific information' in the section. The 'specific information' to which the section refers must have an existence of its own quite apart from the operation of any process of deduction, such as has been employed here. The 'specific information' must be capable of being pointed to and identified, and must be capable of being expressed unequivocally. The complete inaptness of the section to permit 'specific information' to be created by a deductive process, such as has been used here, can be seen in the absurdity that results when one takes the 'specific information' and seeks to understand how the defendant put it to 'use' to make an advantage from some dealing he entered into." 410 Whatever the merits of this conclusion in relation to the specific statutory provision there under consideration, it provides little by way of persuasive reasoning in relation to the present provision which deals not with knowledge of specific information, but possessing information, and provides an expansive definition of "information". As noted by the prosecution, greater assistance may be derived from the decision in Commissioner for Corporate Affairs v Green [1978] VR 505. Although his attention was drawn to Triguboff, McInerney J declined to adopt its reasoning, noting that s124(2) of the Companies Act 1961 (Vic) (which was involved in the proceedings before him) did not qualify the term "information" by the word 'specific'. His Honour continued, at 511 (25): "In many cases a hint may suggest information or may enable an inference to be drawn as to information. Information about impending stock movements or share movements may often be veiled. Discussion concerning such a movement may often take the form of 'mooting' but not deciding a matter. I am of the view that it was open to the magistrate to find, as he did find, that the respondent gained information at the Board meeting on 16 January 1975, the information being that the board of directors had under consideration or had given consideration to the question of whether to make a five cent call on shares, and that the board had decided not to make a decision on that matter for the time being." 411 In the present case, the definition of "information" is inclusive rather than comprehensive, but expressly includes "matters relating to the intentions, or the likely intentions, of a person". A director of KPN might have intended to support a takeover offer at a particular price, an intention which may be shared by others having decision-making power within the company. A "person" includes KPN. The intention may be held with varying degrees of certainty. The existence of such an intention is information. If it is passed on to others, it is information in the hands of the recipients. However, the intention may be inferred by others from the conduct of the directors. The inference may be drawn with varying degrees of certainty as to its accuracy. Nevertheless, such an inference remains information. Indeed, there is no clear distinction between information conveyed orally and by conduct. In the case where the director tells a third party of his or her intentions, the information is in fact inferred not merely from receiving the communication, but from forming a belief as to its veracity. 412 The Appellant also sought to argue that if the information was an inference drawn by the Appellant himself, the jury should have been instructed that the inference had to be the only reasonably possible inference available to him. However, that is not so. The information was particularised in terms of a likelihood that a certain event would occur. One matter about which the jury had to be satisfied beyond reasonable doubt was that the Appellant possessed such information. The fact that his knowledge of negotiations might reasonably have led him to a different view might make it less likely that the jury would be so satisfied, but is otherwise irrelevant. 413 The other element in ground 24 is the imprecision of the inference identified in particular (i). However, there are also difficulties attending this aspect of the challenge. 414 To the extent that the defence had sought details of the underlying facts from which the inference was said to have been drawn, those further particulars were supplied and constituted a 15 point statement of the prosecution case. One aspect of the initial reluctance of the prosecution to supply such details was that it did not wish to be bound to establishing each fact so particularised. Any potential ambiguity was resolved in the statement of the further particulars that the inference was drawn from "one or more of the following … pieces of information". 415 Whether each element of the particulars contained in the indictment needed to be proved was a separate issue, which forms the basis of ground 22. The grounds tend to overlap, in that the Appellant sought to establish that each element of the particulars must satisfy the statutory preconditions to the commission of an offence. Thus, each must be information he possessed, must not be generally available and each must have been material to the price of the securities. These aspects will be dealt with separately below. For present purposes, the elements of the offence provide a context within which to identify the level of precision required in formulating a particular charge. As noted by McInerney J in Green, the kind of information which may affect a securities market may be quite imprecise. However, the source of the rumour may be of very considerable importance, despite the vagueness of the known details. If the information in question is so imprecise that it is not likely to affect the market, the charge will not be made out. But if it is sufficient to satisfy that element of the offence, there is no reason to import into the statutory definition an additional requirement of specificity or precision. 9. Submissions made during the trial as to particulars 416 The Appellant contended that the Crown case that the Appellant had knowledge of an actual offer at $2.45 fell outside the particulars in the indictment. In this respect, he contended that there was a fundamental difference between information that it is likely that there would be a takeover at a specific price of $2.45 and an unknown price in excess of $2.00. 417 The Appellant also contended that the words "in excess of $2" were not merely an imprecise description of a specific known price but were a description of price uncertainty. 418 The relative complexity of the statutory concepts in the elements constituting the offence of insider trading itself may be said to be conducive to a degree of potential difficulty in a jury applying those concepts in light of the evidence in a case. But that notwithstanding, and contrary to what has been stated upon the matter by Basten JA at paragraphs [23] and [24], whose judgment we have read in draft form, we are, with respect, unable to accept that there were discrepancies or a departure from the charge as particularised in the indictment and the evidence relied upon by the prosecution in relation to the issue of possession. There was, in our opinion, no basis for a contention of duplicity, ambiguity or confusion. 419 In a document prepared before trial and bearing a facsimile date of 10 October 2001, submissions were made on behalf of the Appellant concerning the particulars in the indictment. It was noted that they had changed from the first trial. What was previously expressed as a "prospect" qualified by "possible" is now said to have been "likely". It was contended that the particulars were significantly deficient and betrayed an uncertainty on the part of the prosecution as to what the case against the Appellant really was. 420 The submissions proceeded to develop an argument as to a claimed ambiguity in the word "likely" and the want of particulars as to what it was that the Crown really asserted. One argument advanced on behalf of the Appellant was that it was not known whether the particulars were intended to convey an objective likelihood or a likelihood seen by some other person or by the Appellant himself. 421 It was claimed that the Crown case at the first trial appeared to have gone far beyond the particulars then provided. The Prosecutor submitted that it had established actual possession of matters by having acquired actual knowledge. He spoke about the Appellant having "very specific knowledge" and "knowing everything he needed to know about the TNT takeover" (CCA judgment, paragraphs [235] to [238]). In the trial, the subject of these proceedings, it was contended (AB 242): "If the case is that Mr Hannes had direct knowledge of what was in documents, which would reasonably lead to the conclusion that a takeover of TNT at a price in excess of $2 a share was likely, then the particulars should say so and specify how and from what documents he acquired the knowledge." (paragraph [7]) 422 In reply to the submissions as to the alleged insufficiency of particulars, senior counsel for the prosecution contended that the Crown had clarified the particulars taking into account the comments of Spigelman CJ in the appeal from the first trial citing dicta of the Chief Justice at [277]. 423 The Crown maintained that the particulars remained substantially the same as in the first trial but used clearer and more common words "it was likely" instead of "there was a prospect". It was said that both phrases carried the connotation of a degree of probability, but that the formulation for the second trial was in more everyday language. The Crown further contended that the arguments being presented in relation to the particulars amounted to an attempt to impermissibly complicate the case by "refined dissections of issues that must ultimately be presented to 12 laymen for their decision", referring to Regina v Holden [1974] 2 NSWLR 548 at 551F, cited with approval by the Court of Criminal Appeal in Hannes (supra) at [272]. 10. Whether the Crown case departed from the particulars or a "defacto" transformation of paragraph (i) of the Particulars to an offer at $2.45 424 The particular grounds of appeal formulated within Ground 17 are stated as: (a) The judge erred in permitting the Crown to prove the appellant possessed the information in paragraph (i) of the Particulars by proving that he became possessed of more specific information, namely that it was likely that shares in TNT would be the subject of a takeover offer at a price of $2.45, without seeking to amend the Particulars. (b) Alternatively, his directions to the jury were inadequate to avoid a miscarriage of justice arising therefrom. 425 Ground 17, the Appellant submitted, essentially raised two issues: (a) Whether the Crown, having regard to paragraph (i) of the Particulars was free to attempt to prove that the Appellant possessed specific knowledge of the likely takeover offer at, say, $2.45; (b) In the event that the Crown was entitled to prove the element of "possession" of such specific knowledge, the impact, if any, that had on the third and fourth elements ( general availability and materiality ) and whether those elements had to be established for the offer at $2.45 or the offer as described in the particulars, namely, a "likely" offer in excess of $2.00. 426 The trial judge's ruling was that it was open to the Crown to prove that the Appellant has possession of specific information of the "likely" offer but that the third and fourth elements had to be proved in accordance with the particulars, namely, in excess of $2.00 per share, and that there should not be a defacto transformation of particular (i) in relation to the third and fourth elements by reference to $2.45 per share. 427 The first occasion on which a question was raised as to the Crown case in relation to the second element of Count 1 (possession of information) occurred on 23 May 2002. This was the first suggestion of evidence going beyond the particulars or of evidence which may be said to establish what was particularised and more. At AB 882 of the transcript, Mr Barker QC is recorded as saying: "On its face there is no inconsistency, I concede that, but there is a world of difference between an allegation that Mr Hannes knew there would be or thought it was likely that the price would be in excess of $2 and thought it was likely that it would be at a specific figure that is $2.45 I don't know how far the Crown intends to take this. My friend didn't open on it. CROWN PROSECUTOR: That's because I was asked not to." 428 Mr Barker QC is then recorded as saying that if the prosecutor was going to try to call evidence as to knowledge in the Appellant of a specific price likely to be offered, "in my submission it ought to be rejected, because it is going beyond the particulars". (AB 882). 429 This exchange raised the question argued on this appeal as to whether evidence of possession of information as to a specific price above $2.00 by way of a takeover for TNT shares went beyond the particulars or whether such evidence simply proved the particularised information. 430 Mr Barker QC submitted that the Crown was obliged to "nail its colours to the mast so we know where we are going. It is unfair to make a general allegation and try and prove the specific figure which is not pleaded" (AB 883). 431 Senior Counsel appearing on behalf of the Crown is recorded at the same page as saying: "We are entitled to prove, in proving those particulars if we can that, Mr Hannes had perfect information. One of our arguments will be, once we've proved Mr Hannes bought the options and takeover covering $2.45, him buying $2 call options is powerful evidence that he had inside knowledge. So it's a very important part of the circumstantial case. I do have a number of other bases upon which this evidence is put, but it may not [be] necessary to deal with all of them at this point." 432 The transcript then records the trial judge's statement as follows: "In my opinion, on the present particulars in the indictment of the first count including particular 1 'it was likely that shares in TNT Limited would be the subject of a takeover offer at a price in excess of $2 per share', evidence is admissible, which would tend to show that the accused was possessed of information that it was likely that shares in TNT Limited would be the subject of a takeover offer at some specific price in excess of $2 per share ." (p.50) (emphasis added). 433 Prior to the Crown Prosecutor's closing address, he outlined to the trial judge on 15 August 2002 how he proposed to address the jury. The trial judge stated at AB 3852: "The information of which the accused could be possessed could include an inference drawn by him. I consider that the Crown can seek to show that the accused was possessed of information that it was likely that there would be a takeover offer at a price of $2.40 - $2.45." 434 The essential complaint raised by the Appellant at trial was focused, not so much on what may be termed an inherent ambiguity or uncertainty in the words contained in the indictment and particulars describing a price, but the fact that the particulars were, in a sense, expressed in somewhat open-ended terms ("in excess of $2"). This, it was argued for the Appellant, enabled the Crown to put its case at trial either on the basis that the information allegedly possessed included a likely takeover at a level that exceeded $2.00 or that the information available to the Appellant was of a more precise or specific nature ($2.45). In written submissions made on behalf of the Appellant as to particulars (AB 242, paragraph 7), it was stated: "But the Crown case at the first trial seems to have gone far beyond the particulars then provided. The prosecutor talked about Mr Hannes having 'very specific knowledge' and 'knowing everything he needed to know about the TNT takeover'." (CCA judgment, paragraphs 235-238) 435 It was contended on behalf of the Appellant: "If the case is that Mr Hannes had direct knowledge of what was in documents, which would reasonably lead to the conclusion that a takeover of TNT at a price in excess of $2 a share was likely, then the particulars should say so and specify how and from what documents he acquired the knowledge" . 436 However, as the trial judge observed, evidence tending to show that it was likely that shares in TNT Limited would be the subject of a takeover offer at a specific price of $2.45 per share was necessarily evidence tending to show the fact that it was likely that shares in TNT Limited would be the subject of a takeover at a price in excess of $2.00 per share (AB 1035). 437 The Crown case put in relation to the second element ("possession") was that it had been established by the evidence at trial that the Appellant possessed information by having had access to documents etc. that it was likely that there would be an offer at a price of $2.45. In a circumstantial case, the Crown contended it had "cleared the hurdle" of establishing beyond reasonable doubt that the Appellant possessed information of a likely takeover offer at a price in excess of $2.00 per share. 438 The Crown also contended that its case and the evidence adduced in support of it did not have the effect of 'raising the bar' in relation to the remaining elements of the charge. The conceptualisation of the offer, as referred to and envisaged by the particulars, was of a price in excess of $2.00 per share. It was against this that the elements of general availability and materiality and knowledge of materiality remained to be assessed as the trial judge emphasised, irrespective of the evidence accepted by the jury concerning the second element. We will deal later with a submission by the Appellant that the way the Crown case was put on the element of possession created a tension in the application of the particularised information to the elements of general availability and materiality. 439 During the course of the trial, the trial judge referred, in the absence of the jury, to the particulars in this respect. He stated: "I remain of the view that if the Crown has alleged that it was likely that shares in TNT Limited would be the subject of a takeover offer at a price in excess of $2 per share, it is open to the Crown to adduce evidence in order to prove that assertion that it was likely that shares in TNT Limited would be the subject of a takeover offer at a specific price in excess of $2 per share, such as $2.45. But in determining such matters as general availability or materiality, the price that must be [sic] had regard to is a price in excess of $2 per share." (AB 1040-1041) (emphasis added). 440 The jury were directed in similar terms (AB 4269-4270). In the course of those directions, the trial judge stated: "… an argument put to you by the Crown was that the accused did become possessed of more specific information and it was possession of much more specific information that led him to acquire options with a strike price of $2.00 rather than options with any other strike price, because $2.00 options would maximise the profit if the share price rose above $2.25. Information that it was likely that shares in TNT would be the subject of a take-over offer at a price of $2.40 or $2.45 per share, or thereabouts, would be information that it was likely that shares in TNT would be the subject of a take-over offer at a price in excess of $2.00 per share." (emphasis added). 441 The trial judge, in the course of his summing up, distinguished information in the possession of the Appellant in relation to the second element from that which was relevant for the purposes of the third element of the offence (general availability). For the purposes of the third element of the offence, "the information about the likelihood of a takeover offer is information that it was likely that shares in TNT would be the subject of a takeover offer at a price in excess of $2 per share, by however small an amount" (AB 4280). Specific directions were given in respect of the third element of the offence at AB 4314. 442 The Appellant asserted that, in relation to the second element, possession, on the Crown case (that he had become possessed of information of the likelihood of a takeover offer at a price in excess of $2.00 per share by becoming possessed of more specific information, that is, information of the likelihood of a takeover offer at a price of $2.40 or $2.45 or thereabouts per share) the judge "did not plainly tell the jury of his ruling that the other elements of the offence (particularly materiality) had to be made out for a price of $2.01". Instead, he submitted that, in considering other elements of the offence, the jury would have to "keep constantly in mind" that paragraph (i) of the Particulars included "a price in excess of $2.00 per share by however small an amount". For reasons which are developed later in this judgment, we consider that the directions given by the trial judge on the elements of possession, general availability and materiality were properly based upon the particulars and were framed by reference to the particularised information in terms that were clear and free of ambiguity. 443 The Appellant's submissions accordingly raised the issue as to whether the Crown case on the element of possession in fact went beyond paragraph (i) of the Particulars and, if so, whether there was a consequential miscarriage of justice. That requires an understanding as to the correct interpretation of paragraph (i). 444 The Appellant contended that for the Crown to seek to make out a case on the first element ("possession") – that the Appellant possessed knowledge of a likely takeover offer at a price of $2.45 – required it to apply to amend paragraph (i) of the Particulars. In analysing the argument it is necessary to identify a number of matters: • One of the primary elements of the offence under s1006 is the possession of " information ", in this case, by the Appellant. • The information pleaded in an indictment had to be sufficiently specified so as to identify the essential factual ingredient of the actual offence. • The information specified in paragraph (i) of the Particulars was information allegedly possessed by the Appellant and which was essentially of a predictive nature ("it was likely that …"). • The factual content or ingredients of the information of the offence alleged had to be identified and was identified in the combination of paragraphs (i) and (ii) of the Particulars. • In specifying the information by reference to an offer at a price in excess of what might be termed a baseline price of $2.00 per share, the information was sufficiently identified having regard to the accepted requirements of criminal pleading. • The "baseline price" information referred to (as to a projected takeover offer which was in excess of the strike price of the options) may be proved by evidence that establishes information possessed of a takeover offer at a higher level. The " essential factual ingredient " (possession of the information particularised) of the offence alleged is not thereby transformed, altered or changed. The "information" may, in other words, be established by evidence of varying levels of specificity and probative weight. 445 It was the Crown case that the Appellant possessed the particularised information against a background which included the fact that TNT shares had, as at September 1996, for some time traded at a considerably lower level than $2.00 per share. A takeover offer in excess of $2.00 per share on the evidence plainly carried with it significant potential for a holder of TNT November $2.00 call options. 446 Basten JA has observed that the particulars in the indictment were less specific than what the Crown contended was established in evidence. However, we are of the opinion, with respect, that the real issue is not whether the evidence assumed a level of specificity that was greater than the particularised information but whether the indictment provided "fair information and reasonable particularity as to the nature of the offence charged" (Johnson (supra) at 501 per McTiernan J, cited by Mason CJ, Deane and Dawson JJ in John L Pty Limited v Attorney-General (NSW) (supra) at 521) and whether the evidence admitted was properly admitted to found the charge. 11. Particulars in the indictment 447 It is clear that the particulars of information in a prosecution for the offence of insider trading supplied by the Crown, constituted a critical aspect of the Crown case and of the conduct of a fair trial: Regina v Hannes (supra) at [27] per Spigelman CJ. 448 The "information" on which the Crown relied consisted of the cumulative effect of the four separate elements particularised being the same elements noted by Spigelman CJ in Hannes (supra) at [28], namely: (a) The prospect of a takeover. (b) The price of a takeover offer. (c) The fact that Macquarie Corporate Finance was advising TNT in connection with that takeover. (d) That Macquarie Corporate Finance had placed securities in TNT on an embargo list. 449 It is the particularised information that has to be shown to satisfy the elements of the offence, and that sets the ambit for the evidence that is properly admissible: Regina v Rivkin [2004] NSWCCA 7 at [125]. 450 The Court of Criminal Appeal in Rivkin (supra) (Mason P, Wood CJ at CL and Sully J) at [126], observed that the explanatory memorandum to the Corporations Legislation Amendment Bill 1991 and the terms of s1002A itself, made it clear that the information does not need to be "specific". Reference was made in Rivkin to Commissioner for Corporate Affairs v Green [1978] VR 505 as earlier noted in paragraph [410] which concerned s124(2) of the former Companies Act 1961 (Vic), and which similarly did not require the information to be "specific". 451 It is clear from the approach taken by the Court of Appeal in Rivkin (supra) and its endorsement of what was said by the trial judge in relation to particulars, that, whilst differences may occur between information particularised and evidence concerning the same, if the evidence is in accordance with the particulars or it can be said that the overall effect of the evidence materially coincided with the particulars, then that is sufficient. Evidence which establishes that the Appellant in fact possessed knowledge of the likelihood of a specific takeover offer does not constitute a difference of substance between what was alleged in the particulars and what was established. In other words, evidence as to the possession of actual knowledge of the likely takeover offer was in conformity with or in harmony with the particulars and not in conflict with the type of information alleged to have been possessed by the Appellant. 452 It is clear from the approach taken in Rivkin, that in determining whether evidence called in a prosecution for an insider trading offence materially coincided with the particulars of the information allegedly within an insider's possession essentially raises the issue as to whether or not the substance and effect of the evidence was in accordance with the particulars. In the present proceedings, the substance and effect of the evidence, if accepted by the jury, was that the Appellant, in fact, possessed knowledge of a likely takeover offer of $2.45. That plainly was in accordance with the particulars that it was likely that shares in TNT Limited would be the subject of a takeover offer "at a price in excess of $2.00 per share". 453 The particular matters alleged in paragraph (i) of the Particulars, as within the Appellant's possession, included: (a) The fact that a specific takeover offer was "likely" . (b) The fact that the subject of the offer would be shares in TNT. (c) The fact that the offer would be made at a price in excess of $2.00 per share. 454 The particulars also alleged that the Appellant had within his possession information specified in paragraph (ii) of the Particulars, namely: (a) That the Corporate Advisory Division of MCF was advising TNT Limited in connection with that potential takeover. (b) That the Corporate Advisory Division had placed securities in TNT Limited on an embargo list. 455 Basten JA has observed that the Crown case was essentially a circumstantial one in the sense that there was no direct evidence that the Appellant had access to the information in MCF documents. We, with respect, agree with his Honour's observation that nevertheless the jury could well have inferred from his willingness to invest in what an experienced broker thought to be a "risky" investment that he did in fact have information of that kind available to him. The Crown, of course, relied upon a number of other circumstances including matters of timing and the events that were associated with Count 2. 456 Whilst Basten JA refers to the facts that there were, in his view, real discrepancies between the charge particularised in the indictment and the evidence relied upon by the prosecution, his Honour does not accept in terms the submission made by the Appellant that it was not open to the Crown to seek to establish and have the jury accept that the Appellant possessed information of a takeover offer at a price, for example, of $2.45. That would, however, seem to be the effect of the conclusion that Basten JA has reached. We consider that it was open to the Crown to do so and that such a case was in accordance with paragraph (i) of the Particulars. 457 On analysis, it can be seen that the Appellant's contentions appear to essentially rest upon the proposition that there was an essential inconsistency between the particulars of information (ie, paragraph (i) in the Particulars) which was not exact or specific (that is, a likely offer above or in excess of $2.00 per share), and the Crown case that it had established in evidence that the Appellant had possession of information that an offer between $2.40 to $2.50 for TNT shares was likely. 458 It is necessary to examine the point of the Appellant's submissions on Ground 17 in relation to the element of "possession" and the element of "materiality'. The Appellant has argued in light of the matters he has raised in relation to the element of "possession" that the trial judge's directions were "inadequate" in relation to the elements of "general availability" and "materiality" and that confusion resulted as a consequence. In this respect, a number of matters are noted: • The relevant "information" for the purposes of the elements of "possession", "general availability" and "materiality" remained what has been referred to above as the "baseline price information" ("in excess of $2.00 per share"). That is so even if the jury were satisfied that the information within the Appellant's possession was even more specific in nature or extent. • The trial judge repeatedly emphasised in directing the jury that whatever level of knowledge was within the Appellant's possession, "general availability" and "materiality" remained to be determined by what we have earlier termed the baseline price information referred to in particular (i), "in excess of $2.00 per share". • The directions in consequence required that those three elements were to be determined by reference to the same factual matters as were specified in paragraph (i) of the Particulars. • The trial judge distinguished in his directions between the function performed by particulars and the use to which evidence might be put in establishing facts in issue including the matters the subject of the particulars in the indictment. 459 The Appellant refers to the fact that a redirection was sought in relation to general availability and materiality. The terms of the redirection sought are set out at p.147 of Chapter 15 of the Appellant's submissions. The trial judge refused the redirection sought. 460 In the document "Defence Submissions in Relation to Summing Up" (Appendix 4 to the Appellant's Submissions) it was submitted as follows: "4. Your Honour should direct the jury that they must acquit the accused unless it is proven beyond reasonable doubt that information that 'it was likely that shares in TNT would be subject of a takeover offer at a price of $2.01' was material and not generally available, notwithstanding:- (a) the same information at higher prices would be material and not generally available; and/or (b) the information the jury find Hannes actually possesses (as for example, knowledge of the likelihood of a takeover at $2.40 - $2.45) is not generally available and material. … (5) Your Honour should tell the jury to disregard Crown arguments as to why the information may not be generally available which are not valid for a takeover of $2.01. They include: (a) an argument based on the movement of the share price on 2 October 1996 (b) an argument based on the position of a seller of TNT $2 Nov 1996 options for 1.5-2 cents; …" 461 The terms of the summing up emphasised and repeated in clear terms the distinction between "information" for the purposes of general availability and materiality as particularised in the indictment in contradistinction to the evidence that would permit the jury to make a finding in relation to "possession", including information possessed by the Appellant of a likely takeover offer in the sum of $2.40 or $2.45 cents. We are, accordingly, of the opinion that there was no requirement for the trial judge to give the redirection sought. We consider, in other words, that there is no substance in the contention as to confusion or lack of clarity in the directions given in relation to those elements. The directions given by the trial judge in relation to the fourth element of Count 1 (materiality) are further considered below. 12. Materiality 462 The Appellant contended that the directions given were inadequate to ensure that the members of the jury clearly understood the effect of his rulings, namely, that even though it might conclude the Appellant actually possessed knowledge of a likely offer of $2.45, he should be acquitted even if such information was not generally available and material "unless an offer at a different price of $2.01 was also not generally available and material" (paragraph 15.1.5 of the Appellant's written submissions). It is said that "this confusion" was aggravated because the Crown arguments, as put to the jury in relation to "general availability" and "materiality" by the trial judge, were not valid for an offer of $2.01. The Appellant then provided examples said to support that proposition. 463 In Chapter 8 of the Appellant's submissions, it is contended that no jury could conclude, beyond reasonable doubt, that information which indicated that it was likely that TNT might be subject to a takeover bid of $2.01 would influence a person who commonly invests in securities to buy or sell $2.00 November call options at 1.5 to 2 cents. Three arguments were advanced in the Appellant's written submissions in support of this submission: (a) There was no possibility of making a profit on the options at that price (paragraph 8.2.1). (b) The comparative option analysis as explored in evidence (paragraph 8.2.2). (c) The possibility that the share price already reflected a possibility or a likelihood of a takeover (paragraph 8.2.3). These three lines of argument were also addressed in oral submissions. 464 As to (a) above, it was submitted at $2.01 no profit would have been realised. Hence no-one would be influenced to buy such an option for 1.5 to 2 cents whether one considers such an offer of $2.01 as a certainty or, a fortiori, as likely. 465 As to (b) above, it was contended that on the expert evidence (Mr. Holubko), at share prices greater than $2.25, the largest profit would be made on the $2.00 November 1996 option series. Below $2.25, a larger profit would be made on the $1.75 November 1996 option series. The hypothetical purchaser who came into possession of information that there was likely to be a takeover at $2.01 would not be influenced to buy the $2.00 November 1996 options. 466 As to (c) above, the Appellant's submission proceeded upon the basis that the trial judge directed the jury that if the market price already reflected a real and not remote chance of a takeover, the particulars could not be material. 467 The Appellant argued that "market intelligence" and other information indicated that there was a widespread knowledge in the market of a real and not remote chance of a takeover bid, and that such information must therefore have been incorporated in the market price. (1) No possibility of making a profit on the options 468 In relation to the first of the above three arguments the Crown essentially countered by relying upon two propositions: (i) That the submission made by the Appellant is not directed to the particularised information in the indictment. (ii) That the Appellant's analysis fails to consider the time value of the options. 469 The Crown argued that even if TNT $2.00 November 1996 options purchased for 2 cents would make a loss of 1 cent per option if the price of shares rose only to $2.01, the particularised information remained material. 470 First, as at the date of purchase the options were "well out of the money". However, investors in options appreciate the risks in option contracts including the fact that for a relatively small outlay there would have been very significant potential for the options at the date of purchase for every cent the share price rose above $2.02. That potential would influence the hypothetical investor even if there was a risk of a loss at $2.01 – the potential gain above that amount, it contended, would well outweigh that particular risk. 471 In relation to "materiality", persons who commonly invest in securities of the kind in question would have to be taken as considering what a price in excess of $2.00 per share would potentially mean. Such investors would not be blind to the fact that at $2.03, options purchased at 1.5 cents would yield a 100% profit. The Appellant's submission limited as it was to an analysis based upon the figure of $2.01 does not, in our opinion, undermine or negative the fact that the particularised information would, on the evidence, be of a nature that would be likely to influence persons who commonly invest in securities of the kind in question in deciding whether or not to buy or sell the TNT $2.00 November 1996 call options. The evidence, including the expert evidence in particular, left it open to the jury, as a question of fact, to determine materiality on this basis. 472 It is not in this context irrelevant to have regard to matters referred to by the Crown, in its submissions (paragraph 1042), namely, that at the time of the purchase of the securities on 17 November 1996, TNT $2.00 November 1996 options were well out of the money, that is, the share price at the time, namely, $1.59 was well below the strike price of $2.00 (Exhibit 278; Goldberg, AB 3597). The share price, the Crown noted, had traded broadly in a range of about $1.30 to $1.60 in the four months up to October 1996 (Goldberg, AB 3587) and that the options had a relatively short time to expiry. It also noted that the price of the relevant options at the time was cheap, namely one to two cents. 473 It was the Crown's contention that the Appellant stood to gain $50,000 for every cent that the share price rose above $2.02, that is, a 100% profit for every 2 cents. Accordingly, it was submitted: "1045 In the circumstances the hypothetical investor would be influenced to purchase TNT $2 November 1996 options even if there was a relatively small risk that, if the share price only went to $2.01 and the options expired, there would be a loss, because the potential for gain for every cent that the price went over $2.02 would outweigh that risk." 474 The Crown in its written submissions (paragraph 1036), in our opinion, correctly challenged the Appellant's arguments based upon the fact and significance of a takeover offer at the figure of $2.01 per share for shares in TNT Limited. The materiality of the information particularised includes, as the Crown submitted, the potential for a price rise generally above or in excess of $2.00 and was not information which precluded the possibility of an increase in the share price beyond $2.01. Options as a speculative form of security, at least in part, derive their value from what the market perceives as the direction in the relevant share price of a company. Factors identified in the expert evidence, namely, the share price at the time of the purchase of the particular options, their expiry date and the strike price of the options are relevant matters. The Crown asserted that the Appellant's submission was based upon the "false premise" as to a final takeover at a fixed price of $2.01, and that the Appellant in relying upon that fixed price of $2.01, created a false dichotomy between success and failure at that particular price. 475 In summary, the Crown contended: (a) A final takeover at a fixed price of $2.01 was not the information particularised. (b) The assertion of a loss and not a profit at a takeover offer at $2.01 is one which only considers the intrinsic value of an option held to the point of its expiry and does not take into account, as the expert evidence established, the time value of the option. (c) The Appellant's analysis relies or focuses upon a likely takeover at the specific price of $2.01. In this respect, it again assumes that options are held until expiry rather than being traded prior to their expiry date(s) contending: "Up until a reasonable time before expiry, any given option may still have a value in excess of its purchase price, depending on all the circumstances." (paragraph 1079 of the Crown's written submissions) 476 We are of the opinion that the Appellant's argument does depend upon acceptance of an unduly narrow premise that does not operate to limit the facts alleged and particularised in paragraph (i) of the Particulars and should not be accepted. The Crown submission to which we have referred on this aspect should, in our opinion, be accepted as a valid interpretation and application of the particulars in the indictment. (2) Comparative offers analysis 477 The expert evidence called by the Crown on this aspect was given by Mr Michael Holubko, an experienced options dealer. Mr Holubko held the position of Manager of the Derivatives Trading Operations at the Australian Stock Exchange. In cross-examination, he was questioned on the profit that would be made on the $1.75 November 1996 option series in contrast to that which would be made (or loss sustained) on the $2.00 November 1996 option series. The Appellant's submissions on what he has termed in paragraph 8.2.2 of his written submissions "Comparative Options Analysis" essentially relates to the evidence on the subject given by Mr Holubko. However, his evidence at AB 3534–3435 (in cross-examination) reflected but one aspect, namely, potential as at the expiry of the options as "… only reflecting intrinsic value" (AB 3534). At AB 3535, Mr Holubko made it clear that such an approach is too limited as it fails to bring into account the time value: "A. They are using a simple pay off diagram on expiry so it's purely reflecting intrinsic value. As I said there's a time component as well. You can model this though. You need a pricing model but the results would be roughly in line." 478 He was then asked (AB 3535): "Q. So given those figures and assumptions if you were able to hazard a guess that the price was going to be over $2.00 but not go above say $2.25, your best investment would be the $1.75 options? A. Not necessarily. It depends on the speed of the move, how much time is remaining. Q. Given the same hypothesis that you've worked on? A. Okay. What we were excluding is time value. HIS HONOUR: Q. You have the same expiry date? A. Same expiry date. All we are dealing in is intrinsic value with a month or two to run, quite a big component of that price is time value. The textbooks always say the greater leverage is in the furtherance of the money." 479 The evidence of Mr Holubko emphasised that the period until the expiry of the $2.00 option contracts was of significance for, even if the share price did not rise above the strike price, the value of options nevertheless tend to increase so long as there existed a period of time before the options expired. The evidence of both Mr Holubko and Mr Goldberg , was to the effect that a purchaser of call options, at each stage, acts in the belief that the share price will increase. 480 The submission made on behalf of the Crown in relation to the Appellant's analysis based upon a likely takeover offer at a fixed price $2.01, in our opinion, should be accepted: "1049 The appellant's analysis focuses only upon the intrinsic value of the option, ie the value of the option if exercised, which is the difference between the strike price of the option and the underlying share price, assuming that the option is held until its expiry date, and completely ignores the value of the option at which it could be traded on the market. An option is a tradeable commodity, which derives its price from the underlying share price. In this regard there are a number of factors that may be taken into account, including the expected movement in the share price, the time to expiry, interest rates and liquidity of trading." (Holubko, AB3503/1-7) (3) Possibility share price already affected by a possibility or likelihood of takeover 481 The Crown took issue with this argument. It contended that the Appellant's argument involved a false assumption. 482 The Crown emphasised the importance of the distinction between specific information and speculation which it claimed the Appellant's submissions failed to observe. Brokers' reports and other evidence relied upon by the Appellant were said to relate only to "the general possibility of a takeover" among other possibilities and not the more specific information in the indictment. 483 On the matter of brokers' reports and other material, the Crown referred to the observations of Spigelman CJ in Hannes (supra) at [276] wherein the Chief Justice noted that such reports referred to a possibility of a takeover. 484 In contrast, the particulars in the indictment, the Crown observed, were related to an actual likelihood of a takeover at a price in excess of $2.00 per share being a matter the subject of the retainer by TNT of the Corporate Advisory Division of MCF. Reliance was placed in this respect upon the evidence of Mr Goldberg (AB 3605) to the effect that the greater the detail the information contains the greater will be its credibility and that the information particularised in the indictment was, according to Mr Goldberg, inter alia, "very specific". Reference was made in the Crown submissions to brokers' reports tendered by the Appellant which were said to be speculative and contradictory (paragraph 1067 of the Crown's submissions). The Crown emphasised the need to read Mr Goldberg's evidence in full. The Crown further responded to the Appellant's arguments by stating that even if the market had factored in the possibility of a takeover: "… it had not factored in information in the terms of the particulars, otherwise the price of TNT shares would have moved towards a price of at least $2.00. As at 17 September 1996, the share price was significantly lower, at $1.59 …" (paragraph 1070). 485 The Crown added that arguably against the background of speculation that TNT was vulnerable to takeover the information as particularised would in fact be more material (paragraph 1071). 486 In summary, the Appellant's analysis on "materiality" should in our opinion be rejected for the following reasons: • The Appellant's argument that there was no possibility of making a profit on the options at $2.01 per share depends upon an extremely restricted scope being given to the particularised information and upon a limited analysis that fails to have regard to the time value of the options and the potential magnitude of gain or profit at levels about $2.01. There is no warrant for a restrictive reading of the particularised information in the way the Appellant contended. • The same error in approach affects the " comparative offer analysis " and fails to properly give effect to the expert evidence of Mr Goldberg and of Mr Holubko. The particularised information, inter alia, applied to the likelihood of an offer, not at a single price such as $2.01 but to a range above or in excess of $2.00 per share. • As to the argument that the share price already reflected the possibility of a takeover, the particularised information was directed to (a) a specific likely offer (not merely a possibility of a general kind) and (b) one with respect to which the Corporate Advisory Division of MCF was advising TNT and (c) that securities in TNT that had been placed on an embargo list. 13. The meaning of "likely" in Particular (i) of the particulars in the indictment – the Crown submissions on "likely" – trial judge's refusal to give a direction on the meaning of "likely" 487 The Appellant has argued that there was a miscarriage of justice based upon the contentions that: • The Crown case departed from the particulars in the indictment (paragraph (i) of the Particulars) "it was likely …" . • The Crown incorrectly addressed the jury as to the meaning of paragraph (i) of the particulars in terms of the word "likely" . • The trial judge decided not to instruct the jury as to the meaning of "likely" in paragraph (i) of the Particulars of Information contained in the indictment. 488 The Appellant contended that the Crown inconsistently addressed the jury as to paragraph (i) of the Particulars in relation to the element of possession of the particularised information by reference to "likely" in that paragraph meaning "a real and not remote chance and something more than a mere possibility". However, in relation to general availability or materiality, no such reference was made as to the meaning of "likely". The Crown addressed the particulars in paragraph (i) in terms of "an actual likelihood that there would be a takeover … " or an "actual likely takeover". 489 It is clear that "likely" has a primary meaning but that the meaning of the word will often depend upon its context. The case law bearing upon the use of that term and submissions as to the contextual meaning of it in paragraph (i) of the Particulars are referred to below (at [522], [523] and [526] to [530]). 490 The Appellant argued that the Crown should not have been permitted to have addressed upon the meaning of the word "likely" in the terms that it did unless the particulars had been amended. His complaint was essentially that a lesser meaning was given to "likely" by the Crown in relation to the element of "possession" but that the word was given a different and stronger meaning for other elements of the offence, in particular, "general availability" and "materiality". 491 The Appellant contended that if the meaning of "likely" in the particulars was an issue of law, then the judge failed to direct the jury on that question. If it was an issue of fact and the Crown was permitted to make submissions on the meaning of the word but the Appellant was told not to make submissions on it, then the Appellant contended a form of procedural unfairness resulted. 492 Basten JA states in his judgment that there is a difficulty with the approach taken by the trial judge in directing the jury to disregard the submission that had been made by the Crown Prosecutor on the word "likely" (see [29]-[30]). The reason for this is said to lie in the fact that an indictment is not a statute and there is a real danger that to leave such a matter to the jury without instruction is to permit them to choose between a takeover offer which is "no more than a real and not remote possibility, and one which was more probable than not" (the former being the Crown's interpretation of "likely"). The Appellant also contended that the trial judge had noted that the prosecutor readily implied that an offer of $2.45 was probable, when seeking to prove materiality (at [31]). 493 Basten JA has stated that the differential nature of the information, as for example, brokers' reports in relation to general availability, tends to evaporate if it could be said that the particulars were satisfied on the basis of a 10% chance of a takeover (at [32]). 494 We observe immediately that the concept of "a real and remote possibility" in reference to the word "likely" is referred to a number of times in Basten JA's observations and analysis. We do not, with respect, for reasons later specified, consider that the jury were left to choose in the way referred to by Basten JA as noted in paragraph [492] above. 495 In paragraphs [34] to [47] Basten JA's observations are made essentially in relation to two discrete matters: (a) The first is said to be the question of a shifting in the Crown case in relation to the issues of materiality and general availability as to a "price in excess of $2.00" . (b) The second concerns an issue of suggested latent ambiguity. 496 In relation to (a), Basten JA refers to Crown submissions which suggest or imply a high degree of likelihood of a takeover at a price which would exceed $2.00. His Honour has observed that the passages in question could only be satisfied if there was a high degree of likelihood approaching certainty of an offer at that level and not merely a real and not remote possibility. Basten JA states that there is a disparity between the evidence and the particulars which gave rise to concern in the trial judge which led to his directions. 497 In relation to (b), Basten JA states that the careful directions given accentuated rather than diminished "the inherent uncertainty in the prosecution case" ([46]). The jury were taken through a series of sequential steps in order to ensure that the other elements (other than possession) "… including that the information was material and was not generally available, were satisfied. However, the dual elements of latent ambiguity rendered the nature of this task obscure" (at [46]). 498 In this respect, Basten JA states that if the particularised information could be satisfied by a finding that there was a real and not remote possibility of a takeover at $2.01 but also by a finding that a takeover at $2.45 was more probable than not (and that the Appellant in fact possessed the latter (more precise) knowledge) how, his Honour has questioned, was the jury to apply the tests relating to materiality and non-general availability to what is described as "the hypothetical (vaguer) information"? 499 In examining these matters and his Honour's observations as to latent ambiguity, the following matters are, we consider, relevant: • There is an assumption in the observations to which we have referred that the particularised information could, in fact, be satisfied by a finding that there was a real and not remote possibility of a takeover at $2.01 . • The ordinary meaning of the word "likely" does not embrace the meaning "a real and not remote possibility of a takeover" . So much has been submitted by the Appellant. • On the basis that "likely" means something more than a real and not remote possibility and as it applies to each of the elements, possession , general availability and materiality , the fact that the jury might accept that the Appellant in fact possessed knowledge of a likely takeover offer at $2.45 would not "swamp" or detract from the tests relating to materiality and general availability . 500 We record that, with respect, we do not agree with the observation of Basten JA that, absent instruction as to the meaning of "likely" there was "… a real danger that to leave such matter to the jury without instruction is to permit them to choose between a takeover offer which was no more than a real and not remote possibility and one which was more probable than not" (paragraph [30] of the judgment of Basten JA). 501 The trial judge specifically instructed, not merely cautioned, the jury that they were to disregard the Crown's references to "a real and not remote possibility" as discussed in paragraph [523] of this judgment. The instruction not only directed the members of the jury that they were to disregard (or in other words to ignore) the Crown submission but the trial judge made it clear that it was for the jury to determine the meaning of "likely" as an ordinary English word. 502 The expression "a real and not a remote possibility" that the Crown had introduced during its address as to the meaning of "likely" is not and would not be taken by a lay person as the ordinary meaning of "likely" as a matter of plain English or as constituting the common usage of the word. So much is confirmed, if confirmation be required, by the fact that no such meaning or similar meaning is to be found in the definition of "likely" in the Shorter Oxford English Dictionary, Fifth Edition, volume 1, page 1595, or in the Macquarie Dictionary (2005). The phrase "a real and not a remote possibility" is, accordingly not an accepted ordinary meaning outside particular statutory contexts in which the word "likely" may appear. The jury, having been expressly directed to disregard the Crown's submissions, it cannot be correct to either say or assume, in our opinion, that the jury were left to choose between the two specific meanings of "likely" stated by Basten JA (quoted in paragraph [500] above). The direction given to the jury to which we have referred, correctly left the position for the jury to give "likely" its ordinary meaning. 503 The fact that the Crown case was put upon the basis that the Appellant had information derived from information at MFC which was more specific than the particulars in the indictment does not, with respect, indicate or establish that there was ambiguity or uncertainty in the insider trading charge or in the Crown case. Proof of specific information possessed by the Appellant as to a likely takeover offer was, as outlined earlier in this judgment, consistent with and permitted by particulars which alleged that he had information "in excess of $2.00 per share". 504 There could be no ambiguity or prejudice by virtue of the fact that non-availability and materiality of information was also to be determined at the level of "in excess of $2.00 per share". The capacity for the jury to decide the element of possession on the basis of evidence as to specific information presented no impediment or ambiguity in the jury determining the other elements in accordance with the particularised information, namely, the baseline price information "in excess of $2.00" per share. 505 However, the issue of ambiguity or uncertainty referred to by Basten JA should, we consider, be further analysed by close attention to the meaning and function of the term "likely" in the particularised information. For that purpose, we will commence with the pre-trial history of the particulars and thereafter the use of the term "likely" at trial and its contextual meaning. 14. The meaning of the word "likely" in paragraph (i) of the Particulars 506 This issue arises in relation to Grounds 18(a)(i) and (b) and Ground 19. (1) The pre-trial history of the particulars 507 In the applicant's written submissions, the history of the particulars of the indictment at the first trial and the second trial is outlined. A part of the history has already been traversed in paragraphs [419] to [423] above. 508 In the first trial, the particulars were: There was a prospect that shares in TNT would be the subject of 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 was advising TNT in connection with that possible takeover and had placed securities in TNT on an embargo list." 509 In Hannes (supra), the Chief Justice analysed the particulars, stating, inter alia, at [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'." 510 In the Appellant's written submissions, reference is made to a request made on behalf of the Appellant for particulars of the indictment (written submissions, paragraph [16.2.4] "Pre-trial Correspondence"). 511 The Appellant referred to the fact that on 21 September 2001 the Crown advised the Appellant that it had considered the request that had been made and advised that the Crown did not propose to reformulate the particulars at that stage. 512 A notice of motion was filed seeking a quashing of the indictment and a stay. On 28 September 2001 the Crown provided a new indictment which included the present particulars. 513 As the Appellant observed in paragraph [16.2.6] of his written submissions, the words "there was a prospect" had been replaced with "it was likely" and the word "would" had been retained. Additionally, the word "possible" in reference to the takeover had been removed and the word "potential" had been substituted. (2) References to the word "likely" during the trial 514 The Appellant's written submissions emphasise at some length statements by the Crown in the course of its submissions as to the meaning of the word "likely". The Appellant refers to the fact that, prior to addresses, he had submitted that the Crown should not be permitted to elaborate on or put a gloss on the word "likely". 515 Senior counsel for the Crown, in the course of discussions with the trial judge, said that he would tell the jury that "likely" meant "a real and not remote chance". The Appellant observed that the judge did not suggest that the Crown should not address the jury on the meaning of the word "likely". He stated that he would prefer to give no instruction on the word. 516 In the Crown's closing address in relation to the element of possession, the jury were told "when we say likely, what I mean is that there is a real and not remote chance and it is something more than a bare possibility". The Appellant observed that when addressing in relation to "general availability or materiality", the Crown made no reference to this meaning but talked of the particulars being "an actual likelihood that there would be a take-over in excess of $2, an actual likelihood" or being "an actual likely take-over". 517 The Appellant also referred to the fact that the judge had told senior counsel for the Appellant to "stay out of" suggesting a definition of "likely" and that a direction was sought that "the jury disregard the Crown's formulation". 518 The trial judge (AB 3852) dealt with submissions made on "likely". He stated that he agreed that "likely" does not mean merely possibility and that he did not propose to direct the jury that likely meant "probable." 519 In the Crown's closing address on 19 August 2002 (AB 3022) the Crown Prosecutor outlined the elements of Count 1 (AB 3022-3025). The Crown Prosecutor stated: "The second element in respect of this is you see that at the time Mr Hannes purchased the securities we have to establish that he was possessed of particular information. The information that we say that Mr Hannes was possessed of is set out in the particulars and the information is that it was like[ly] that shares in TNT Ltd would be the subject of a takeover offer at a price in excess of $2.00 and that Corporate Advisory Division of Macquarie Corporate Finance was advising TNT in connection with that potential takeover and had placed securities in TNT Ltd on an embargo list. When we say likely, what I mean is that there is a real and not remote chance and it is something more than a bare possibility ." (emphasis added). 520 As we have noted earlier, the trial judge subsequently gave a direction to the jury that they were to "disregard" the Crown's submission as to the meaning of "likely". The exact terms of the directions are set out and discussed in paragraph [523] of this judgment. 521 It was contended that this direction left the submission of the Crown open to the jury, notwithstanding the use of the word "disregard". The alternative construction of events, however, is that by the trial judge's specific instruction produced above it was left for the jury to give the term "likely" a meaning consistent with more probable than not, a more demanding concept in the context of particular (1). (3) The meaning of "likely": a contextual question 522 The Appellant has submitted, correctly, that the relevant case law that has considered the word "likely" as used in statutes indicates that the meaning varies according to the statutory context: Tillmanns Butcheries v AMIEU (1979) 27 ALR 367 at 375 per Bowen CJ at 380-381 per Deane J (the context in that case being a statutory one). He also observed that, in some statutory contexts or in relation to some statutory offences, the word has been determined to mean "probable". In other contexts, as the Appellant has also correctly observed (usually proscribing behaviour posing a "likely" danger to innocent parties), "it has been found to mean 'more than a remote chance' or been found not to require a more than 50% probability" (Appellant's written submissions, paragraph [16.3.2]). (4) Submissions and directions at trial on the meaning of the term "likely" 523 The following synopsis seeks to draw together the events at trial, including the trial judge's directions on the meaning of the term "likely" in particular (i): (a) On 15 August 2002 (AB 3816) junior counsel then appearing for the Appellant responded to the Crown's indication that it intended to address the jury in terms of the word "likely" as meaning "substantial or real chance" . The trial judge stated that he had not intended to say anything about the meaning of the word (AB 3816). Junior counsel for the Appellant made brief submissions in relation to the meaning of "likely" by reference to the High Court's judgment in Boughey v Regina (1986) 161 CLR 10. The Crown cited the High Court's judgment in that case as supportive of its suggested interpretation. (b) On that occasion, the trial judge indicated that a formulation of " a substantial or real chance as distinct from a mere possibility " was one which appealed to him " at the moment " (AB 3817). Counsel submitted that the term " likely " ought not be equated with a mere possibility. (c) Senior Counsel for the Crown confirmed that the only submission he intended to make was in terms of " a substantial or real chance ". The trial judge restated his then thoughts as to what he would say on the matter at AB 3818. The trial judge confirmed with junior counsel for the Appellant that his primary submission was that no direction should be given as to the meaning of the term. Later junior counsel stated that his principal submission was that the Crown ought not to " put a gloss on the words in the particulars of information and if that be so then your Honour need not say anything " (AB 3818). Junior counsel indicated, however, that that may need to be reassessed in light of what the Crown said in its address. The trial judge indicated that, after the addresses, he would ask both counsel if they wanted him to say anything about " likely ". (d) On 15 August 2002, at AB 3844, the Crown is recorded as making further submissions on the meaning of the word and as to the approach taken by senior counsel for the Appellant to cross-examining witnesses on the basis of what might be referred to as a probabilities test. The trial judge, at AB 3845, indicated that whether he would say anything as to the meaning of the word would depend on " how the submissions go ". He also indicated that " I may say nothing at all ". If he did, then it would be likely to be in terms of " a real and not a remote chance, more than a bare possibility ". (e) On 19 August 2002, at AB 3861, the Crown in its address to the jury referred to the fact that when it referred to the term " likely ", what was meant was that "there is a real and not remote chance and it is something more than a bare possibility" . A similar submission was made at AB 3943, and also on 21 August 2002 at AB 3971. (f) On 23 August 2002 the trial judge told both counsel in the absence of the jury that his present thoughts were that he should " stay out " of addressing the jury on the meaning of the word and expressed the view that senior counsel "really should stay out of it too" (AB 4076). He went on to state that the term " likely " was an English word in common parlance. It was a jury question of what the members of the jury thought it meant, adding " I don't think I should tell them what it means ". Senior counsel for the Appellant is then recorded as saying " I agree ". (g) On 6 September 2002 the trial judge, in the absence of the jury, indicated to counsel that he, having regretted that he had told senior counsel for the Appellant to stay out of addressing the jury as to the meaning of the term " likely " stated that he could not let the submissions made by the Crown as to the meaning of the term " stand ". He stated that he proposed to tell the jury to disregard the submission made by the Crown, although making it clear that he had not formed a view one way or the other that the Crown submission was necessarily wrong. (h) In the course of the summing up, the trial judge, on 29 August 2002, made reference to the Crown's submission as to the meaning of the term (AB 4268; AB 4306). (i) On 6 September 2002 (AB 4613) the trial judge stated during the course of his summing up: "I have told you that 'likely' is an ordinary English word and it is a matter for you to determine what you consider 'likely' means. The Crown Prosecutor put a submission to you about what the word 'likely' means. I direct you to disregard that submission. That is not in any way a criticism of the Crown Prosecutor, nor should the direction I now give you be taken by you as expressing any view of mine on whether the Crown Prosecutor's submission is correct or not. It is a matter entirely for you." 524 In addition to the Crown making submissions, senior counsel for the Appellant also put before the jury submissions on the meaning of the word "likely" in the following terms (AB 4023): "The first point I make is that we pose this question, if all the available information were known to one person, that is the material relied on by the Crown, told that person, any takeover at any price was likely, we say the answer to that emphatically is no. Now the Crown puts its own gloss on 'likely'. My friend says you can regard it as meaning, a real chance and not just a possibility. It is an ordinary English word and I can only say to you that you should use it in the extreme in which it is likely. That is to say, what was likely. Would this information have been conveyed to Mr Hannes or anybody else that it was likely that there was going to be a takeover price in excess of $2 per share." 525 The following two general points may be made on the meaning of the word "likely" in the context of the particulars. (a) The word was employed as a predictive term in the particulars of the indictment and is not to be interpreted as if it was a word appearing in a statute. The cases concerned with the meaning of the term " likely " in various statutory contexts are therefore of no real assistance in establishing its meaning in the context in which it appeared in the particulars. (b) It is not mandatory for a trial judge to place a gloss upon the meaning of a word which is used in ordinary parlance and is employed in particulars in an indictment and there may be good reason for not doing so. We are of the opinion that the trial judge did not err in determining not to provide an explanation or gloss on or as to the meaning of the word " likely ", particularly in a case where each party to the proceedings had put competing interpretations to the jury by way of submission. 526 The discussion by the High Court in Boughey (supra) arose in the context of s157(1) of the Tasmanian Criminal Code. That provision, inter alia, provided that culpable homicide was murder if it was committed: "(c) by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person." 527 The trial judge was correct in changing his earlier thoughts on the meaning of the term "likely" by adopting the approach that he did and in instructing the jury accordingly that the term was an ordinary English word and deciding that he should not seek to define it for the jury. 528 The High Court recently in Darkan v The Queen (2006) 228 ALR 534; (2006) 80 ALJR 1250 had occasion to consider the meaning of the expression "a probable consequence" as used in ss.8 and 9 of the Criminal Code (Qld). In the joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ, the observation was made that, whatever precise meaning the word "probable" bears in a particular context, it is usually used to establish a contrast to what is "possible". A similar point could be made in reference to the word "likely". The observation was also made in the joint judgment at [24]: "…'probability' can denote a variety of degrees of confidence. Probabilities can be of different degrees of strength." 529 In Darkan (supra), the joint judgment records the possible meanings of "probable" which were referred to in that case in descending order of likelihood as including: (a) more probable than not; (b) a probability of less than 50/50, but more than a substantial or real and not remote possibility; (c) a substantial or real and not remote possibility; (d) a possibility which is "bare" in the sense that it is less than a substantial or real and not remote possibility. 530 The trial judge in Darkan was said to have erred in telling the jury that the expression was one which meant "a real possibility or a substantial cause or a real chance". The word "likely", as is the case with the word "probable", does not have a single meaning. Both words have shades of meaning all of which may be descriptive of the prospective occurrence of an event with some conveying a stronger prospect than others. The range of meanings of "probable in descending order of likelihood referred to in Darkan provide an informative illustration. 531 "A substantial or real and not remote possibility" clearly may represent the meaning of the word "likely" in a particular statutory context. It may be open to a jury, for example, to determine that either meaning (a) or (b), in the range referred to in paragraph [529] above is the correct meaning to be given. The ordinary meaning of "likely" does not, as previously discussed, in terms include "real but not remote". The trial judge's direction to the jury to disregard the Crown's submissions as to the meaning advanced by the Crown was framed so as to operate as an instruction to the jury to be followed, although at the same time leaving the meaning of "likely" open, and for the jury to give it its ordinary meaning. The direction, in that respect, was expressed in terms that were emphatic. It placed the matter on a footing whereby the meaning suggested by the Crown was to be disregarded as the proper interpretation and leaving it to the members of the jury to exercise and apply their own understanding of a word frequently used in everyday discourse. That understanding would have included a balance of probabilities test or meaning. The trial judge left the submission made by senior counsel for the Appellant (extracted in paragraph [524] above) without comment. 532 An appellate court ordinarily should act upon the basis that where a trial judge specifically directs a jury on a matter the members of the jury will act in accordance with the direction and not contrary to it. In these proceedings the jury, having been directed in plain terms that they were to give to the word 'likely" what they considered was its meaning as a commonly used English word, can be accepted as having done so. 533 There was no suggestion in the Appellant's submissions that the directions given by the trial judge on this aspect lacked clarity or were deficient in any respect. We are of the opinion that the directions given enabled and permitted the jury to exercise their own independent and common sense knowledge and experience in understanding in applying paragraph (i) of the Particulars (including the word "likely") to the facts of the case. 534 The relevant background to the matters referred to in paragraph (i) of the Particulars concerned the share market and predictive information relating to a share offer – the prospective purchase of shares in the nature of a takeover. The life blood for investors is "information" – whether from published financial accounts, the financial press etc. – to assist in predicting the future of a company and accordingly the value of shares in it. The market reality is that investors are not much interested in possibilities (the stock market is riddled with possibilities). The information sought is usually directed to predicting what is more likely than not to influence share prices. That background provides contextual relevance in the present proceedings. 535 The trial judge was correct in not instructing the members of the jury as to how they should interpret a plain English word. The context of the particulars, not being statutory in nature, meant that their ordinary terms did not possess a legal meaning or construction – they carried an ordinary grammatical meaning which was purely a question of fact for the jury. The scope for the word "likely" having a meaning that is different from its natural meaning will invariably only arise in a particular statutory context as the case law analysis reveals. 536 The Appellant's argument that there was ambiguity or uncertainty in the term "likely" depends for its validity upon acceptance of the proposition that there is something in the particulars in the indictment that created uncertainty. Nothing in that respect has been identified. The natural meaning of "likely" on the basis of the directions given by the trial judge must be taken on the above analysis to have been accepted and applied by the jury to each of the elements of the offence particularised in the indictment. The asserted ambiguity or uncertainty does not exist and the appeal on this ground should, in our opinion, be dismissed. 537 In the circumstances in which both counsel made submissions on the meaning of the word "likely", we do not believe it can be said that any miscarriage of justice arose in the circumstances in which the trial judge specifically directed the jury to disregard the Crown submission and which, in those circumstances, would be taken by the jury in its ordinary sense. 538 The result of the above analysis is that we do not, with respect, agree with the observation of Basten JA at [30]: "… there is a real danger that to leave such a matter to the jury without instruction is to permit them to chose between a takeover offer which was no more than a real and not remote possibility, and one which was more probable than not." 539 A detailed examination does not at all reveal that the jury were left or permitted to choose between a meaning of the word "likely", namely, between "no more than a real and not remote possibility" and "more probable than not". The jury, as has been noted above, having received specific directions that they were to disregard the Crown's submission as to the former, were not left uninstructed so as to enable them to choose between two possible meanings one of which was not the ordinary meaning. There was but one meaning, the ordinary meaning of the word, to be applied for the purposes of determining each and all of the second, third and fourth elements of the offence alleged. 15. The question of a "tension" between the Crown case on possession and its case on general availability and materiality 540 In the document entitled "Accused's List of Matters which Require Directions" dated 14 August 2002 by Senior Counsel then appearing for the Appellant, submissions were made in respect of the second and third elements in the following terms: "Not generally available" 1.6 "The information that must be 'not generally available' is the information particularised in the indictment. This is so even if the Crown submits and the jury is satisfied that the accused possessed information that the takeover would be at a price of about $2.40-$2.45. … Materiality 1.1.0 The information that must be 'material' is the information as particularised in the indictment. This is so even if the Crown submits and the jury is satisfied that the accused possessed information that the takeover would be at a price of about $2.40-$2.45." 541 The submissions were discussed on 15 August 2002 at AB 3819-AB 3852. 542 The Appellant's submission to the effect that a tension was created between the different elements of the offence due to the application of different threshold tests to the proof of "possession" as against proof of the elements of "general availability" and "materiality" is one which calls for an examination of the underlying submission. 543 The Appellant contended (written submissions, paragraph 16.8.2): "…setting a 'low threshold' for the information assists to prove the accused possessed it, but mitigates against a finding that the information was not generally available or material; setting a 'high threshold' for the information has the opposite effect …." 544 The premise to the submissions that a "threshold" was "set" at a "low" level required the Appellant to demonstrate at the least: (a) That a " threshold " test was in fact " set " and was one by which the jury were required to act; (b) That the trial judge set such a threshold for the information that was alleged to be in the Appellant's possession; (c) That the trial judge in addition to setting a threshold did so at a level that constituted a " low threshold ". 545 The Appellant does not identify in relation to any or all of the matters (a), (b) and (c) any direction given by the trial judge which establishes the setting of the threshold as claimed by the Appellant. It is clear from the summing up that the trial judge did not direct the jury in a way that could either be said to have "set" the threshold in the manner described in the Appellant's submissions, nor in a way that gave rise to "a tension between the different elements of the offence", as the Appellant claimed existed. 546 It is necessary to analyse the Appellant's submission as to the setting of a "low threshold" upon the basis that the submission is to be taken as referring to a differential approach to paragraph (i) of the Particulars so far as the elements of possession, general availability and materiality are concerned. 547 The Appellant in this respect appears to rely upon a contention that the Crown had told the jury that "likely" had the meaning "a remote and real chance, more than a bare possibility" but that the Crown additionally also addressed the jury in a way which stated, suggested or implied that "likely" had a stronger meaning (in the sense of a probability) for other elements of the offence (paragraph 16.3.3(f) of the Appellant's written submission). 548 Whether that is an accurate description of what the Crown stated in relation to the elements of materiality and general availability is open to dispute. However, even accepting that the Crown addressed the jury in relation to general availability and materiality, as the Appellant contends, that does not support the submission that "a tension" existed between the different elements of the offence by reason of any direction given to the jury. 16. Applying 'likely' to paragraph (i) of the particulars and to the elements of 'materiality' and 'general availability' 549 A question in this appeal is whether the prosecution case, in terms of the meaning and application of paragraph (i) of the Particulars, was left on a differential basis so far as the elements of "possession", "materiality" and "general availability" are concerned. That in turn raises an issue addressed by Basten JA (at paragraph [46] of his Honour's judgment) as to whether the word "likely" in its ordinary meaning was or was not applied to the first of those elements ("possession") or whether the jury were permitted to adopt and apply "likely" in the sense of a "real and not remote possibility" of a takeover offer whilst the other two elements were to be determined on the basis of a higher or stronger prospect of probability, eg., more probable than not. Basten JA observes, as noted earlier, that the jury was first required to identify the information in the Appellant's possession and by a series of further steps to satisfy itself of the other elements of the offence, including that the information was material and was not generally available. His Honour then states: "However, the dual elements of latent ambiguity rendered the nature of this task obscure. If the particularised information could be satisfied by a finding that there was a real and not remote possibility of a takeover offer at $2.01, but also by a finding that a takeover offer at $2.45 was more probable than not, and that the Appellant in fact possessed the latter (more precise) knowledge, how was the jury to apply the tests relating to materiality and non-general availability to the hypothetical (vaguer) information?" 550 For reasons which we identify we, with respect, do not agree that "latent ambiguity", as that expression is employed in relation to criminal pleadings or ambiguity in a general sense, arose or operated at trial. Nor do we agree with any suggestion that: (a) The case against the Appellant was left upon the basis that the particularised information could be satisfied by a finding that there was a real and not remote possibility of a takeover offer at $2.01. (b) A finding that the Appellant in fact possessed information of a takeover offer at $2.45 per share gave rise to ambiguity or inconsistency with the particularised information (based in part upon the concept of "in excess of $2.00 per share" ). (c) A finding in terms of (b) above would create ambiguity or give rise to obscurity in determining whether the particularised information ( "in excess of $2.00 per share" ) would establish the "material effect" on the price or value of the shares as referred to in s 1002C ( "would or would be likely to influence persons who commonly invest in securities in deciding whether or not to subscribe for, buy … the first-mentioned securities" ) or in determining whether the information was "not generally available" within the meaning of s1002G(1) and s1002B. 551 In the context of this essentially circumstantial evidence case the distinction between the particulars in an indictment and the evidence permitted to be led at trial of evidence is fundamental. Evidence in relation to a particular fact in issue may carry greater probative weight because it is more specific in content than the particularised allegation to which it relates. That, of itself, does not render the charge in question ambiguous or confusing. We are, with respect, unable to accept the statement of Basten JA in paragraph [47] of his Honour's judgment which states: "The fact that some of the information which could have been derived from the available information at MCF was significantly more precise and certain than that identified in the particulars to the indictment indicates a level of ambiguity or uncertainty in the charge." 552 In the context of the present proceedings, we, with respect, do not concur with the last quoted observation. 553 Finally, in relation to the point in question, one may take a hypothetical case of a public official bound by fiduciary obligations not to use his or her position to advance self-interest but who, in relation to the public sale of government-owned assets is charged with misusing confidential information, namely, that the assets would be sold for a price at a figure in excess of $100,000. The Crown in such a case would, in our opinion, be entitled and permitted to lead evidence that the accused possessed and utilised confidential information that indicated that the price likely to be set by the relevant Government authority for the sale was the amount of $120,000. The significantly more precise information does not, in our opinion, in this example, create or induce a level of ambiguity or uncertainty. 17. Summary of conclusions - uncertainty 554 The bases upon which the Appellant has contended that the Crown case went beyond the particularised information in relation to the element of possession does not, in our opinion, involve or attract the common law principles of duplicity. 555 The Appellant has not, in relation to the issue of possession, in our opinion, established that evidence was either wrongly admitted or that incorrect directions were given by the trial judge. 556 In examining issues of claimed uncertainty in particulars in an indictment alleging an offence of insider trading, it is appropriate to have regard to the fact that the relevant legislative provisions under which such a charge is brought does not specify or require that the "information" be specific: Rivkin (supra) at [125]. 557 In evaluating questions as to uncertainty or ambiguity, the applicable principles of criminal pleading established that: (a) An indictment should furnish fair information and reasonable particularity as to the nature of the offence charged. (b) Evidence that is consistent with the particulars of a charge may be admitted even if the evidence is more specific in content than the particulars. 558 Evidence that established that the Appellant possessed confidential information, namely, that there would be a likely takeover offer of $2.45 for TNT shares, is consistent with a proof of the allegations in paragraph (i) of the Particulars that a likely offer "in excess of $2.00" per share would be made for TNT shares. 559 Accordingly, evidence as to a more specific price was consistent with what was alleged in the indictment and there was conformity not non-conformity in that respect. 560 The issues of general availability and materiality were not required by the particulars in the indictment to be determined by reference only to a possible or hypothetical offer for TNT shares at $2.01. The particulars "in excess of $2.00" is a phrase constructed from ordinary English words and does not warrant such a restricted application. 561 The issues of possession, general availability and materiality were not put to the jury on disparate bases, having regard to the word "likely" in paragraph (i) of the Particulars. That word is one found in ordinary popular speech. It is descriptive of the prospect of the occurrence of an event that is stronger than the word "possible" and consistent with "probable". The suggested meaning "real and not remote" was not a meaning that the jury can be taken to have reached, given, firstly, that that expression is not within the ordinary meaning of the word and, secondly, the trial judge's direction to the jury to disregard such a suggested meaning. 562 We do not accordingly accept that there was any prejudice or unfairness arising in the above circumstances in terms of the evidence and the particulars. 563 If, as Basten JA observes at [60], it is likely that the jury accepted that the Appellant in fact had by some means possession of the highly confidential information of a likely offer of $2.45, and if additionally the jury accepted that it was the Appellant who was the purchaser of the TNT options, then it would only be by the Appellant's argument based upon a possible or hypothetical offer at $2.01 related to general availability and materiality that the prosecution could be said to fail. For reasons previously stated, we are of the opinion that that argument is not a valid interpretation and application of the particularised information. 564 We do not consider such a technical argument is available. There is, with respect, no warrant for a conclusion that the jury tested materiality and general availability against the information the Appellant actually possessed. The jury was instructed repeatedly to the contrary that those two elements were to be determined in accordance with the particulars including that an offer "in excess" of $2.00 was likely – not at $2.45 or at any other price. We, accordingly, do not agree that there was "real ambiguity" (in the sense of two separate sets of facts) presented to the jury. 565 The particulars of matters in an indictment need not have the level of specificity that evidence in proof of them may carry. Indeed, that is not infrequently the case. The adequacy of such particulars is to be judged by and in accordance with the principles identified in the relevant case law as discussed earlier. The fact that there is not an exact match between the detailed evidence and the particulars does not, in itself, give rise to a "discrepancy" as the Appellant has contended. 566 Accordingly, the fact, for example, that the particulars did not specify KPN as the entity likely to make a takeover offer for shares in TNT Limited is not an impermissible deficiency. Similarly, the identification of a likely offer "at a price in excess of $2.00 per share" adequately informed the Appellant before trial of the confidential information that was said to be within his possession in a context in which the then current share price was in the order of $1.59. 567 We do not, with respect, agree, for reasons earlier stated, that the issue of a "likely" takeover offer was left on the basis that the jury were permitted to choose between no more than a real and not remote possibility and one which was more probable than not. 568 Nor do we agree that there was a differential approach taken upon which the jury could be satisfied on the basis of 10% chance of a takeover. 569 We do not consider that there was "inherent uncertainty" in the Crown case. The Crown case was as particularised in the indictment. Those particulars were expressed in ordinary English language. We do not consider that there were elements of ambiguity by reason of the fact that the jury were left to apply the particulars according to their ordinary meaning. Further, we do not consider, for reasons earlier expressed, that it is valid to perceive ambiguity by limiting consideration to a "possibility" of a takeover at the specific price focused upon by the Appellant, namely, $2.01. 18. The embargo list 570 The next group of complaints in relation to the particulars relate to particular (2) which read as follows (AB 11): "2. The Corporate Advisory Division of Macquarie Corporate Finance Limited was advising TNT Limited in connection with that potential takeover and had placed securities in TNT Limited on an embargo list." Thus, ground 18(a)(ii) complained that the case put to the jury was outside the particulars in this respect and, according to ground 20, the trial judge failed to give adequate directions to the jury with respect to the placement on the embargo list, and thus "denied the Appellant a proper opportunity to address the jury in that respect and, having regard to the evidence of Mr Goldberg and the submissions of the Crown, left the jury in a confused state". 571 Particular (2) gave rise to three separate issues. The first was one of construction: did it require that the placement of TNT on the embargo list was because of the advice being given with respect to a potential takeover, or was it sufficient that such advice was being given and the securities were on the list? Underlying that issue was the factual point that TNT had been placed on the embargo list before MCF commenced advising with respect to the KPN takeover, although it may have been maintained on that list at least in part because of the advice with respect to the KPN takeover. 572 The second issue concerned the question of general availability of information. The third question concerned the issue of materiality. Each gave rise to a question as to why this particular was included in the charge. If, as might be inferred, the existence of an embargo list was designed, at least in part, to avoid the possibility of insider trading, or at least to avoid the appearance of insider trading, it might seem odd that the existence of a particular security on the list itself constituted a form of insider knowledge which might create an offence because, if the information were generally available, it might have a material effect on the share price. One might have expected that particular (2) would be a particular of paragraph (b) of the charge, namely as being relevant to the Appellant's actual or constructive knowledge that the information as to the potential takeover offer was not generally available, and if it were, might have a material effect on the price of the securities. Nevertheless, that was not the case pleaded. 573 As the Appellant correctly stated in submissions, for a while the trial judge vacillated as to the correct approach to the particulars. For present purposes, particular (1) could be taken as involving one element, but particulars (1) and (2) were conjoined by "and", indicating that they were not alternatives. Particular (2) had two limbs, joined by "and", but leaving open a question as to whether there was intended to be a causal connection. Further, accepting that the particulars had a total of three limbs, the following questions arose: (1) Should the particulars be treated as having three parts, and if so - (a) must the prosecution prove each part, or (b) would it be sufficient for the prosecution to prove at least some of the parts? (2) If it was necessary to consider the particulars as involving three separate parts, must the jury be satisfied that each part was not generally available and that each, if available, could have a material effect on the share price? (3) If it were not appropriate to treat the particulars as having three separate parts, was the correct view that the jury must be satisfied of their combined effect? 574 In substance, the trial commenced at 1(b), moved to 1(a) and ended at (3). On 2 September 2002 the trial judge directed the jury in the following terms (at Summing-up, pp 88-89) (AB 4308-4309): "If you are not satisfied beyond reasonable doubt [that] the accused was possessed of, that is knew, all parts of the information particularised in the indictment, then you should find the accused not guilty." This direction treated the particulars as having discrete parts. Earlier his Honour had suggested that the prosecution did not need to establish all those parts to obtain a conviction. But now his Honour was making it pellucidly clear, both in a written document and by oral direction, that he was withdrawing any suggestion that it would be sufficient for the Crown to prove part of the particulars. 575 Changes in directions to a jury are always unfortunate, as his Honour recognised. However, they do occur and, in the course of a long trial, may well be necessary. The effect of the change in the present case was to simplify the task of the jury and there is no reason to suppose that the change gave rise to prejudice to the Appellant: the resultant direction favoured the Appellant and was given in unequivocal terms. 576 At that stage, the directions tended to treat the particulars as having discrete parts, to be separately considered. When his Honour came to considering the correct approach to the question of general availability, he stated (at p 92) (AB 4312): "I confirm the directions I gave you that in considering the third element you have to determine whether the information particularised in the indictment, considered as a combination, was not generally available. I confirm that it is not necessary for the Crown to prove that each part of the combination considered separately, by itself, in isolation from the rest of the information in the combination, was information which was not generally available." 577 In relation to the materiality of the information, his Honour directed the jury in the following terms (at p 106) (at 4326): "You could, if you saw fit, be satisfied beyond reasonable doubt that the combination of the information particularised in the indictment would have influenced or would have been likely to have influenced investors in deciding whether to buy or sell $2 November 1996 TNT option contracts, even though it is reasonably possible that some part taken by itself, such as that securities in TNT had been placed on an embargo list, was information which was already generally available or information which would not have influenced or would not have been likely to have influenced investors." 578 It is, as we understand the Appellant's case, this last passage which encapsulates the error for which he contends. It not only directed the jury to look at the combined effect of the various elements in the particulars, but allowed for some diminution in the combined effect, because some aspect of the information was immaterial, or because some aspect was generally available. The Appellant thus contended for approach (2) identified at [573] above. 579 This challenge is unpersuasive for a number of reasons. First, although KPN was not named in the particulars, it was clear that the reference to "a takeover offer" in particular (1) and to "that potential takeover" in particular (2) was directed not to a specific proposal, but to a particular offeror. The particular circumstances might have been described in different ways, without changing the factual elements of which the jury had to be satisfied. Furthermore, the elements clearly had an inextricable connection. Although the substance of the inside information was set out in particular (1), it was given relevance and identity by the first aspect of particular (2), namely that it was the subject of advice from the Appellant's employer. Those circumstances ensured that the securities of TNT were placed on the embargo list. Unless the prosecution could establish that the Appellant knew of the content of the takeover proposal, as it existed shortly prior to the purchase of the option contracts, the prosecution would have failed. However, if it proved that fact, it had effectively proved that he knew the second and third parts of the particulars. Looked at from the perspective of generally available information, it might have been of little value to an investor to know that there was a possible takeover at a price in excess of $2, without knowing the source of that information. However, if the investor knew that the source was a corporate adviser to TNT (and not, say, the local publican) and that the securities were on that adviser's embargo list, that information might well have a material effect on the price. Accordingly, his Honour was correct to treat the particularised information as a body of information, which had a particular flavour and likely effect if available in the marketplace. The relevant effect was not fairly assessed by dividing it into parts and assessing each separately. With respect, his Honour's directions to the jury were not in error. 580 Further, it was a matter for the jury to identify the nature of the information described in the particulars. This was a question of fact. Whether TNT was placed on the embargo list because of Project Warrior, because of the proposed takeover by KPN, or for some independent reason, was not a relevant concern. There had to be a relationship between the presence of TNT on the embargo list and the proposed takeover, but there is no reason why the jury should have been directed that the particular takeover proposal had to be the original cause of its placement on the embargo list, or the sole cause as at the date of purchase of the securities. It was sufficient that there was a material connection, a fact which was not seriously in dispute. To the extent that the jury was not directed otherwise, no error is shown. For these reasons, grounds 18(a)(ii), and 18(b) to the extent that it relates to the former ground and ground 20 should be rejected. PART D: Insider trading charge – Jury directions 1. Purchase of securities 581 Before turning to the substantive elements of the offence, it is convenient to address a further legal argument presented by the Appellant, which seeks to strike at the heart of the charge. The argument noted that the relevant "securities" were particular option contracts to buy shares in TNT Limited. The argument was that the person who instructed the broker to purchase option contracts, and put the broker in funds for that purpose, did not himself "purchase" the securities. Somewhat curiously, this argument was raised under the first ground of appeal which was expressed in terms that the verdict was "unreasonable, or cannot be supported having regard to the evidence". However, no objection was taken to the point raised on that, or any other technical ground. 582 The following two paragraphs from the "Appellant's submission in reply" form the foundation for the Appellant's suggested construction and application of the provisions of s1002G(2)(a): "2.3.3 The option contract is between the Clearing Member and the Options Clearing House. The client of the Clearing Member is not 'a direct party' to the exchange traded option contract. The Clearing Member takes on its responsibilities under the contract as a principal. The client of the Clearing Member 'themselves are not parties to the options contracts'. … 2.3.4 The Clearing Member's client has no rights against the Options Clearing House under the exchange traded contract. The only rights of the Clearing Member's client has is against the Clearing Member. As a result, all obligations under the exchange traded contract, are obligations of the Clearing Member, such as registration and clearing fees. Similarly, if a client wishes to sell or liquidate an option, he must persuade the Clearing Member to exercise some rights he has under his exchange traded contract." 583 The Appellant relied upon the legislative background to the introduction of the applicable statutory provisions. In the course of doing so, he observed that prior to the introduction of s1002G(1), the insider trading provisions did not apply to exchange-traded options. He advanced in support three legal reasons as follows: "3.3.1 Exchange traded options are not issued by the company to whose shares they relate. 3.3.2 Exchange traded options are contracts which require one party …, upon exercise, (to) deliver shares to another party, but prior to exercise there is no requirement for a party to actually hold the shares, and the contract does not relate to any identifiable shares, or shares held by the writer of the option. Thus, the definitions of 'securities' did not cover such contractual arrangements, and therefore had to be expanded (see new s1002A). 3.3.3 There is no 'purchase' or 'sale' in any dealing with exchange traded options – that is, there is no transfer of contractual rights (or legal or equitable interest in any share created). Exchange traded options are 'acquired' by the creation of a new contractual right to acquire shares, and that right is not transferable. Exchange traded options are 'disposed' of by creation of an equal and opposite obligation between the same parties as the original contract. Thus, the statutory terms 'purchase' and 'sale' did not capture the relevant acts, and the definition of 'purchase' and 'sale' needed to be modified (see new s1002A)." 584 The Appellant relied upon Regina v Evans & Doyle [1999] VSC 488 concerning the contractual analysis of an on-market share transaction and on Bell Group Limited v The Herald and Weekly Times [1985] VR 613. He developed his contention that the contractual implications of a share trade are quite different from those of trade in an exchange-traded option, in the following terms: "For a share trade, the broker acts as an agent; in an options trade, the broker must be a Clearing Member and acts as a principal. In a share trade, the client is a party to the contract; in an options trade, only the Clearing Members and the OCH are parties to the contract. Upon settlement or registration, a buyer of shares is registered as the principal and direct owner of the share; a client who buys an option is never registered as a party to the option contract, and never has any rights to enforce or transfer any of the rights under the option contract. In a share trade, the 'buyer client' can directly proceed against the 'seller client'; in an options trade, a client can only proceed against its broker who is a Clearing Member. Indeed, as the procedures for exercise and closing out show, it is quite wrong to say that when a client buys a call option he has any relationship to the client whose broker is on [the] other side of the transaction; they have no rights against each other; when they exercise or close out their options, there is no link or consequence for the other client. The option contracts are those between the Clearing Members and the OCH. The client only has a series of rights and obligations with his broker. The contract note is issued by the Clearing Member, not the OCH." (Reply submissions, p.11) 585 It is unnecessary to analyse in any great detail the nature of option contracts. A number of propositions may be shortly stated. An option is a contract between two parties giving the taker (buyer) the right, but not the obligation, to buy or sell a parcel of shares at a pre-determined price on or before a pre-determined date. To acquire this right, the taker pays a premium to the writer (seller) of the contract: "Options, Understanding Options Trading", Australian Stock Exchange, at p.3. 586 Options are bought and sold on the trading floor in Sydney which is administered by the Options Clearing House ("OCH"). OCH serves as the clearing house for all option transactions. The responsibilities of OCH include registering all option contracts traded on the Australian Options Market, calling of margins and deposits and maintaining a depository for the lodgement of scrip and bank guarantees against sold call option positions in the market: Sydney Futures Exchange Limited v Australian Stock Exchange Limited (1995) 56 FCR 236 at 239; (1995) 128 ALR 417 at 420. 587 Investors themselves are not parties to option contracts. Australian Stock Exchange member organisations that have been approved as Clearing Members under the Australian Stock Exchange Business Rules enter into option contracts on behalf of their clients and take on responsibilities as principals both to the Clearing Member on the other side of the contract and OCH. To cover these obligations, writers of options are normally required to lodge security through their clearing member with OCH: Sydney Futures Exchange Limited v Australian Stock Exchange Limited (supra) at 56 FCR 239 and 128 ALR 420. 588 The point raised in the first ground of appeal is not one to be resolved by applying the principles governing contracts between buying brokers and selling brokers. The reason for this is that the notion of "purchase" is not one to be determined in relation to an alleged contravention of s1002G, by conventional principles relating to the purchase of securities such as shares. The legislature has provided, in relation to securities in Part 7.11, Division 2A, an extended meaning to the term "purchase". In s1002A, it is provided that, for the purposes of Division 2A – Insider Trading – "purchase" has the following meaning: " purchase ", in relation to securities, includes, in the case of an option contract under which a party acquires an option or right from another party, acquire the option or right under the contract, or take an assignment of the option or right, whether or not on another's behalf." In addition, s1002A includes a definition of the term "securities": "securities" , in relation to a body corporate, means any of the following: (a) shares in the body corporate; … (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) … at a price specified in, or to be determined in accordance with, the contract. 589 The prosecution in its supplementary response, relied upon the following passage from Sydney Futures Exchange Limited v Australian Stock Exchange 56 FCR 239F-G and 128 ALR 420 paraphrased at [587] above, and in particular the statement that approved members (brokers) "enter into option contracts on behalf of their clients and take on responsibilities as principals" (emphasis added). 590 As between the Clearing House Member and client, the prosecution argued, there existed a relationship of principal and agent, with the Clearing House Member holding the option contract on behalf of the client and not on the member's own behalf. Specific reliance was placed upon the provisions in s7.1.1. of the ASX Option Trading Rule Definitions of: "1. 'client' – means in respect of any Clearing Member, any person or organisation other than a non-client of such a Clearing Member on whose behalf the Clearing Member acts as Writer or Taker of an Option; 2. 'client's account' – means in respect of a Clearing Member, an account established by the Clearing Member which is confined to Options entered into by the Clearing Member on behalf of its clients." 591 The prosecution also placed reliance upon the form of Options Client Agreement which includes the agreement to be bound by the articles and rules of the ASX applicable to the trading of option contracts and refers to the client's dealings in exchange-traded options. Additionally, the extracted rules attached to that agreement, at 7.1.15(h), refer to the client's overdue and settled positions. 592 The prosecution further relied upon an ASX derivatives division publication entitled "Understanding Options Trading: Explanatory Booklet", which contains, inter alia, the following points: • the relevant participants who are linked or associated with one another in options trading include taker (buyer), Clearing Members (brokers), sellers and the ASX; • the process of purchasing options is described in terms such as: "… to acquire this right the taker pays a premium to the writer (seller) of the contract …"; • the publication makes interchangeable references to "taking a call option" (AB 8212) in the context whereby the term "take" and "acquire" appear to be used interchangeably; and • the exercise of an option is achieved by the client providing notification to the Clearing Member. 593 The scheme under which option contracts are traded is a unique one and is, as the Appellant asserts, quite different from trading in shares. The definition of "purchase" in s1002A reflects the fact that the legislature appreciated the different nature of the security and, accordingly, enacted a definition designed specifically to include persons who acquire an option or right from another party. 594 An investor in option contracts retains a Clearing Member pursuant to an options client agreement and in accordance with the agreement, the Clearing Member agrees to act on behalf of the client or investor. He or she does so specifically and only for the purpose of acquiring option contracts under and in accordance with instructions given by the client. The fact that an option contract itself is entered into between the Clearing Members and the Options Clearing House is not a determinative fact in the construction and application of the term "purchase" in s1002A(1). Nor is the fact that the client of the Clearing Member is not 'a direct party' to the exchange traded option contract. The very purpose of the extended definition of "purchase" is to reflect the nature of the established market trading in option contracts. Accordingly, the definition of "purchase" employs the terms "acquires" and "acquire" as distinct from the ordinary meaning of the term "purchase". That part of the definition of "purchase" which includes the phrase "acquire the option or right under the contract …" (emphasis added) – uses the term "acquire" in a broader sense than the ordinary meaning of the term "purchase" and in the context of the scheme which enables investors to secure option contracts. 595 The Appellant's submissions with respect to this point of construction should be rejected for three reasons. First and foremost, the extended definition of "purchase" in s1002A demonstrates that it is intended to catch transactions known as option contracts. It would require intractable language for the Court to hold that Parliament had failed in its manifest purpose: at its highest, the Appellant's argument asserts lack of clarity in drafting. 596 Secondly, the Appellant placed emphasis on the indirect relationship between the client of the broker who acquires an option and the client of the selling broker. This lack of a direct relationship, the Appellant argued, is heightened by the fact that the options contract itself does not relate to any identifiable parcel of shares. So much may be conceded: however, the language of the definition does not require a direct relationship between the person who acquires the option or right under a contract and the writer of the option, nor does it require any direct relationship between the right under the contract and an identifiable parcel of shares. The Appellant's argument failed to give proper weight to the definition of "securities" in s1002A which includes not only shares, but also the option contract itself. Thus, in order to commit the relevant offence, it is not necessary for a person to purchase shares from the holder of a particular parcel of shares; it is sufficient for a person to acquire an option or a "right" under an option contract. The client of a broker who gives instructions to purchase option contracts undoubtedly obtains a commercially valuable and legally enforceable right, for which he or she pays the price of the contract. 597 Thirdly, the Appellant relied on the fact that the definition of "purchase" refers to acquiring an option or right "whether or not on another's behalf". Because, he submitted, the principal in respect of an option contract is the broker, it must be the broker who acquires the relevant right, not the broker's client. Thus, for the purposes of the definition, only the broker, it was argued, obtains the right and does so on behalf of the client. Again, the availability of the construction may be conceded, so that the broker, who obtains the contract on behalf of a client may be liable for insider trading, if the other elements of the offence are satisfied. But it does not follow that this constitutes the limit of the reach of the definition. Thus, so long as the other person (the client) obtains a right under the option contract, there is no reason to read down the definition so as to exclude its operation with respect to that right. 598 For these reasons, the legal argument should be rejected. The person who identified himself to the broker, Mr Staehli, as "Mark Booth" acquired rights under the relevant option contracts purchased by Mr Staehli on his behalf and was thus capable of being an "insider" for the purposes of s1002G of the Corporations Act. 2. Identity of purchaser 599 The next question concerns the challenge to the factual finding that the Appellant was the person who instructed Mr Staehli to purchase the option contracts. 600 In relation to the question of any purchase, the factual issue was whether the Appellant was the person who had directed the broker, Mr Staehli of Ord Minnett, to purchase the option contracts. It was the prosecution's case that the Appellant, using the persona, "Mark Booth", purchased the securities and in order to do so entered into an elaborate plan involving cash withdrawals and the purchase of bank cheques, all in the name of "M. Booth" along with other steps in order to disguise the fact that he was the purchaser. 601 In relation to the cash withdrawals and the purchase of bank cheques, the Appellant was charged with the two counts previously mentioned of "structuring" in contravention of s31 of the FTR Act. In the appeal, the prosecution contended, as it did at trial, that the activities constituting the offences under s31 of the FTR Act were undertaken as part of an overall plan which included the insider trading activities and that the offence concerned with such insider trading provided the rationale for the "structuring" offences. 602 The outline to this point serves to provide a context in which Ground 1 is to be considered, namely, that the verdict in relation to the insider trading count was unreasonable because the Appellant did not purchase the option contracts as charged in the indictment. 603 A very considerable body of evidence, consisting of the evidence of a large number of witnesses and a great number of documents were called and tendered in order to establish that the Appellant was indeed the purchaser of the securities and that the persona "Mark Booth" was a fiction created by him in order to disguise his activities as the real purchaser. The prosecution conducted the case at trial upon the basis that, if the jury were satisfied beyond reasonable doubt that it had established that the Appellant purchased the securities, then the evidence concerning the structuring offences was also relevant to the insider trading offence in being integral to a claimed strategy of disguising the Appellant's involvement based on the use of insider information. In other words, the prosecution contended that such evidence could be taken into account as evidence of the fact that the Appellant was not only the real purchaser of the securities but also as relevant to the issue of his possession of insider information as alleged in the indictment. The disguise, it was argued, was relevant in evidencing the fact that the Appellant had possession of the particularised information and was secretly employing it to his advantage. 604 Much of the specific evidence relevant to this topic has been considered in dealing with the admissibility of the identification evidence and the photoboard. Further, the major part of the Appellant's statement to the investigating federal officers, also contains evidence of importance in this respect. Indeed, on the first appeal, the Chief Justice concluded (at 158 FLR 359 at [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." At [78] his Honour continued: "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." 605 This Court accepts both statements by the Chief Justice as reflecting its own assessment of the evidence on the retrial, without the need to refer to the possibility of another person being involved. Further, the handwriting evidence supported the conclusion that the Appellant wrote the letter to Mr Staehli, instructing him to purchase the securities. Further, as will be noted below, the Crown was entitled to leave to the jury, as his Honour accepted, an argument based on the correlation between the opportunities the Appellant had for access to confidential information concerning the possible takeover of TNT by KPN, and important steps taken by "M Booth". The jury were entitled to consider that this correlation was not mere coincidence, but formed the basis for an inference that the Appellant used "M Booth" as a pseudonym. 606 Other supportive evidence will be dealt with below, as will the test to be applied in considering whether the verdict was unsatisfactory or unsupportable. As will be noted, the prosecution had to establish beyond reasonable doubt that it was the Appellant who, using the name "M Booth", undertook those activities which formed part of the conduct constituting count 1. In relation to the act of placing the order for the purchase of the securities this Court does not entertain a reasonable doubt, on the evidence as presented at trial, that the Appellant undertook that course of action. 3. Possession of information 607 The Appellant made a number of challenges to the means by which the Crown sought to establish that he possessed the information particularised in the indictment. 608 As noted above, he sought to challenge the admissibility of evidence led by the prosecution with respect to the progress of "Project Tennis": see [321] above. Some aspects of the evidence had potential relevance, as well as possible potential prejudice, in relation to different elements of the offence. These matters have been sufficiently dealt with in discussing admissibility, subject to the question of the propriety of directions given as to use of certain evidence. 609 The Appellant also sought to challenge directions given in relation to various elements of the offence which, in turn, touched upon the use of evidence concerning his possession of particularised information. The relevant grounds of appeal included grounds 13(b) and (c) and ground 15(c). The latter ground complained of the failure to give a direction, pursuant to Shepherd v The Queen (1990) 170 CLR 573, and will be addressed in the section dealing with Shepherd directions below. 610 The general directions in relation to possession of the particularised information, given by his Honour to the jury, have been considered in relation to specific attacks based on whether an offer at a precise price was part of the Crown case and whether the jury needed to be satisfied as to each element of the particularised information. This discussion need not be repeated. However, a challenge was also made to the specific directions given with respect to the way in which particular aspects of the evidence could be used by the jury. Of particular importance in this regard, the Appellant contended, was the fact that absent information which did not exist until 18 September, he could not have had the relevant information as to the likelihood of an offer at a price in excess of $2 when the order for the purchase of the securities was placed on 17 September. In short, the jury should have been directed unequivocally that the information available to him prior to 17 September did not satisfy the particulars and that it was not possible to fill the deficiency by referring to the content of discussions to which he was not privy and which only occurred after he had placed the purchase order with Mr Staehli. 611 The trial judge did not give a direction in accordance with the first limb of this complaint, because his Honour allowed the prosecution case to be put in a somewhat broader manner. His Honour gave this summary with respect to the second element of count 1 (AB 4519-4520): "The Crown has to prove that the accused knew the information. The Crown says that it has proved that in a number of ways. The Crown submitted to you that one way in which it has proved that, is that you would be satisfied that the accused accessed information in the office of the Corporate Advisory Division which revealed the information. However, the Crown said, that is by no means the only way in which the Crown is putting the submission. The Crown put a submission to you that it could be inferred simply from the fact of the purchase of the securities and the manner of the purchase that the accused had special knowledge and that that special knowledge was knowledge of the information in the indictment." 612 His Honour also noted the following Crown submissions (AB 4520): "The Crown submitted that the accused did have information that it was likely that shares in TNT would be the subject of a takeover offer, a specific takeover offer. It is not necessary for the Crown to prove that it was certain that shares in TNT would be the subject of a takeover offer. The Crown case on 'likely' includes the fact that representatives from Goldman Sachs had come from London and the Chief Executive Officer of KPN, Mr Scheepbouwer, had come from the Netherlands and a meeting had occurred and it was indicated that it was likely that an offer would be made." 613 There was specific evidence from an expert (Mr Lucas) that the nature of the steps taken, within the information available to the Appellant, indicated that the transaction being considered was probably, though not necessarily, a takeover of TNT: see Summing-up at 302-303. 614 Shortly before the jury retired, the trial judge gave the jury further directions in relation to the meetings that took place in Sydney in September. His Honour stated (AB 4531): "Evidence has been given of the holding of meetings in Sydney between representatives of the financial advisers and the principals. There is no direct evidence that at the time of the telephone conversation on the 17 September with Mr Staehli the accused had knowledge of the actual holding of those meetings. The Crown does say that before the 17 September the accused had accessed documents, such as Exhibits 122 and 123, which the Crown says revealed to him that it was proposed that those meetings be held." 615 Immediately following that direction his Honour gave what was almost his last direction to the jury, with respect to the subsequent events (AB 4631): "It was argued on behalf of the accused that if the accused had knowledge of those meetings, he would not have acted at the time when he allegedly did. Obviously, on 17 September, the accused could not have been aware of the actual holding of events which occurred after the 17 September. For example, as at 17 September, the accused could not have been aware of the actual happening of the meeting of principals on 18 September." 616 These last comments were not the only passages in which the trial judge indicated the need to distinguish between that which happened before and after 17 September, in terms of the Appellant's possession of relevant information. However, the Appellant does rely upon one particular passage as inherently confusing in this respect. Thus at AB 4545, his Honour directed the jury: "The Crown would point to the meeting on the 18 September and the fact that representatives of Goldman Sachs and KPN had come to Sydney for meetings, as making it objectively likely that there would be a takeover offer." 617 Taken in isolation, it is possible that such a direction could have been understood as suggesting that the jury could take account of that which occurred after September 17 in order to determine the state of the Appellant's knowledge as at September 17. However, context was important in this respect. The reference to the prosecution's contention was noted after reference to a defence submission summarised in the following terms (AB 4543): "It was submitted to you that, even as late as 18 September, the day after M Booth communicated with Mr Staehli, it was not likely that there would be a takeover offer." Read in that context, there was no real danger of the passage complained of misleading the jury. 618 The thrust of the prosecution case was that the Appellant had access to documents which would have revealed the planned meetings and the identity of the proposed participants. Taken with other evidence, it was open to the jury to conclude that the Appellant had that information and that it was significant in terms of the information particularised. 619 Reading the directions in full, it can hardly be doubted that the trial judge provided extensive and balanced guidance to the jury on each of the issues they were required to consider. Complaints with respect to his Honour's directions in relation to the possession of information by the Appellant must be rejected. 4. Was the information generally available? 620 For a person to commit the offence of 'insider trading' he or she must posses "information that is not generally available". The information must be of a kind which, if it were generally available, would reasonably be expected to have a material effect on the price or value of particular securities: see s1002G(1)(a). Putting to one side questions of materiality, the jury is required to consider whether: (a) the accused possessed the information particularised by the prosecution as that upon which the charge is based, and (b) that information is "not generally available". 621 Section 1002A provides, for the purposes of the Division, a definition of information which reads as follows: "information" includes: (a) matters of supposition and other matters that are insufficiently definite to warrant being made known to the public; and (b) matters relating to the intentions, or the likely intentions, of a person." The definition is expressed to be inclusive and does not, in its terms, purport to define the core element of the term "information". Further, that definition must be read with the definition provided in s1002B with respect to information which is "generally available". 622 Section 1002B provides: 1002B Information generally available … (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 invests 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. (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). 623 Ground 16 in the Notice of Appeal was in the following terms: "16 (a) The judge failed to give adequate and comprehensible directions relating to s 1002B(2)(b) and s 1002B(3) to enable the jury to properly consider the appellant's case that there was a reasonable possibility that some or all of the Particulars were generally available. (b) There was a miscarriage of justice because the judge summed up to the jury on the third element of count 1 on the basis of an error of law that information could not be generally available under s 1002B(2)(b): (i) if it was not generally known or 'actually made known'; and/or (ii) if the manner in which it had been made known would, or would be likely to, bring it to [t]he attention (only) of the persons who commonly invest who are clients of MEL or who have access to MEL research." 624 The ground focuses on the operation of sub-s (2)(b) and (3). Accordingly, the concept of "readily observable matter" in par (2)(a) can be put to one side. On the other hand, the second limb of the definition of "information", namely matters relating to the intentions, or the likely intentions, of a person (including KPN) requires consideration. Included within the concept of information generally available, are deductions, conclusions or inferences made or drawn from other information which is generally available. Part of the Appellant's case was that he should not have been liable to conviction on the basis of inferences which he drew from material, whether generally available or not, if the same inferences might reasonably have been drawn from other matter which was generally available. That submission requires attention to the statutory purpose for which the classification of information as generally available or not generally available is required. 625 The scheme of s1002G, which identifies prohibited conduct, is to render a person an "insider" if that person "possesses information that is not generally available". If the Appellant had information which was not generally available, namely information as to the intention of a person, the fact that he or others have made the same deduction or drawn the same inference from other material which was generally available does not prevent him falling within the definition of "insider": see 158 FLR 359 at [254]-[258]. The relevant question to be answered in that case is whether the information he possesses which is not generally available would be expected to have a material effect on the price of the relevant security, if precisely the same inference might be drawn from other material which was generally available. The submission that the same inference could be drawn from two sets of material is open to the Appellant, but should be addressed in the separate context, namely whether the inside information could be expected to have a material effect on the price. 626 Because the issues raised did not relate to the phrase "readily observable matter" within par (a) of s1002B(2), no detailed consideration is required to be given to the discussion of this provision in R v Firns (2001) 51 NSWLR 548. In that case the relevant information was the dismissal of an appeal by the Supreme Court of Papua New Guinea which was held to be readily observable matter, because the judgment was delivered in open court. Nevertheless, the discussion of legislative purposes of the prohibition against insider trading, set out in the judgment of the President (Hidden J agreeing) at [40]-[63] is of assistance in relation to the application of the alternative definition of general availability if par (b) and the additional circumstances set out in sub-s (3). Indeed, as the President noted, the key recommendation of the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs (1989) was fairly reflected in par (b): see Firns at [41] and [55]-[56]. Even the discussion in the first appeal in this matter is of limited assistance in that significant reliance was placed at the first trial on par (a), rather than the presently relevant par (b): 158 FLR 359 at [260]-[271]. 627 The next point on which the Appellant relies is that speculation about a possible takeover of TNT, at a price in excess of $2 was reflected in market trading in options over the four weeks prior to the announcement of the takeover offer on 2 October 1996 and in particular in the week immediately preceding the announcement. Thus, there was evidence that there had been 16,571 call option contracts traded in the previous week, each apparently representing 1,000 shares and thereby some 3% of the ordinary share capital of TNT Ltd. A significant proportion of those trades were apparently undertaken by the broker associated with Macquarie Bank, namely Macquarie Equities Ltd. More particular, the Appellant relied upon two additional factors. One was that a Mr Myles, a research analyst with Macquarie Equities had himself prepared a note for publication to clients in July 1996 noting the strong possibility of a takeover of TNT, with KPN being one of the prime candidates to play such a role. Mr Poole of Macquarie Corporate Finance was responsible for placing TNT on an internal "embargo list" with the result that all research analysis was reviewed before publication. Mr Poole directed Mr Myles to remove reference to potential acquirers, including KPN, to avoid the explicit suggestion that a takeover was imminent. From that the Appellant argued, Mr Myles at least may reasonably have inferred that Macquarie Bank was working on a possible takeover proposal. 628 More specifically, the Appellant relied upon evidence that two clients of Macquarie Equities made major purchases of TNT options on 27 September, some three working days before the takeover was announced. He encapsulated his argument in the following proposition: "It was the appellant's case the Particulars were generally available under s 1002B(2)(b). There was evidence that it was reasonably possible that all the information in the Particulars was known to brokers (eg Curry, Jury, Pegum), analysts (ie Myles) and registered option traders (eg Pryce) in Macquarie Equities responsible for advising on and trading in TNT options, and this 'would be likely to bring such information to the attention of persons who commonly invest' in TNT options, being at least the clients of Macquarie Equities." However, the inference sought to be drawn from these transactions was not that clients of Macquarie Equities generally were being advised that a takeover was imminent, but that two or three particular clients had been advised to purchase options, as recorded on taped conversations, in which the participants were described by the Appellant as "attempting to be circumspect". 629 The difficulty with this material was that, from the Appellant's point of view, it pulled in different directions. Thus, in order to demonstrate that the information which he possessed was generally available, because it was known to analysts or brokers in Macquarie Equities, and hence to their clients, he needed to show that the evidence demonstrated a level of trading in the market place, and at prices which reflected the availability of such information. On the other hand, evidence that specific clients made highly profitable transactions, in questionable circumstances, rather suggested that some brokers may also have been prepared to make use of insider information in advising an extremely small number of clients. 630 The argument presented by the Appellant was that each of the named brokers had access to information from which they might have deduced that MCF was involved in a very significant transaction with respect to TNT shares. In addition, Mr Myles, the analyst in MEL responsible for TNT, was required, through the embargo list, to submit his research on TNT to Mr Poole, in MCF, for review. Poole asked Myles to change the draft because "TNT was obviously a major client of ours and I felt it would be embarrassing for Equities Research to be speculating about a takeover and particularly referring to possible bidders, with whom TNT had [a] commercial relationships (sic)": Tcpt, 27 June 2002, p 1195 (AB 2029). 631 The Appellant then submitted: "Poole's dealings with Myles were a breach of Macquarie's Chinese Wall Guidelines designed to avoid 'tipping' … . The guidelines required research to be sent to the Compliance Officer, who would consult Poole, and if Poole requested changes, the Compliance Officer would make a decision whether to withhold research having regard to the risk of 'tipping'. Myles would have known the guidelines set out only two circumstances where an analyst would be asked to change his research – 'where a transfer of the company to the restricted list is imminent because a takeover is to be announced in a few days' and 'where research is "too close" in the context of MCF's undisclosed role'." 632 The Appellant was conscious that leakage of confidential insider information within Macquarie Bank and its subsidiaries would not establish that the information was generally available. To this end, he sought to rely upon the size of MEL as a major Australian broker, and the fact that it was one of the largest traders in the options market. Further, he relied upon evidence given by Mr Poole to the following effect (Tcpt, 28 June 2002, p 1227, AB 2061): "Q. And was it widely known amongst the investors and stockbrokers that TNT was a major client of Macquarie Bank? A. I don't know how sort of widely known it was but I think it was generally known in sort of stockbroking or investment banking circles. … Q. It would follow, would it not, that investors and those who advise them would tend to accord special significance to research publications issued by Macquarie Equities Limited about TNT? A. I think that they would probably give that research more weight than research by other brokers." 633 The Appellant relied on research memoranda prepared by Mr Myles in May and June which had been largely negative in relation to TNT shares. However, on 18 July 1996, Mr Myles issued a further report which suggested a takeover value of $2.21 per share, and a value based on earnings of between $1.35 and $1.45 per share. The Appellant noted that on the previous day, as part of the Tennis Project material, MCF had produced a valuation of $2.22 per share. 634 Three points may be made in relation to this material. First, the fact that aspects of the particularised information were generally available, did not mean that the information as a whole was generally available. For example, there is a significant difference between speculating as to a "takeover valuation" and information as to the likelihood of a particular takeover. Similarly, the research memorandum did not contain the information that TNT had appointed MCF as adviser in relation to a potential takeover, nor that TNT shares had been placed on an embargo list. The argument can only succeed if the Appellant were entitled to an acquittal on the basis that any particular aspect of the information relied on is generally available. That approach is rejected above and is inconsistent with the approach adopted by Spigelman CJ in the first trial: 158 FLR 359 at [275]-[276]. 635 The significance of the combination of information, on which it was alleged the Appellant acted, as compared with Mr Myles' report of 18 July, may be seen by the movements in the share price between that date and the end of August. In early July the price had dipped from a range around $1.40-$1.45 to $1.20, being the closing price on 12 July 1996. The price was back at $1.30 on 25 July 1996 and closed at $1.40 on 2 August. However, it was not until 5 September that it closed above $1.50, the rise in early September, appears to have been due to an announcement that TNT would dispose of its stake in Ansett to Air New Zealand and the disposal of other "non-core assets". 636 In substance, all of these matters were material to a consideration of the issue of general availability by the jury. The actual information available to officers in Macquarie Equities Ltd, and the use they made of that information, was a matter for the jury to consider. Unless there was some error in the directions given by the trial judge in this regard, no ground of appeal can be made out. 637 The general complaint that the directions in this regard were not "adequate and comprehensible" were based on a complaint that the trial judge did little more than advise the jury of the content of the statutory provisions, which were complex and required explanation, and failed to discuss how they might apply to the facts of the case. 638 If statutory language includes technical terms or concepts, which require explanation, that explanation should be given. Where the statutory language consists of ordinary words and concepts, even where it requires careful reading to understand its import, it may not be helpful to paraphrase or explain in different language. As Spigelman CJ noted in the first appeal, 158 FLR 359 at [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." 639 Bearing that caution in mind, it is nevertheless untrue to say that the trial judge merely repeated the terms of the statute. Rather, he explained what was meant by "bodies corporate" and "disseminated": Summing-up, p 62. He provided further an explanation and a summary of its overall effect: Summing-up, pp 63-68. He summarised briefly the submissions put for the Crown and arguments put for the defence. In the latter regard, he noted the evidence of other trades in TNT options, the submission that "it is reasonably possible that the information particularised … was generally available and that the Chinese wall which was supposed to be in place … generally was not impervious": Summing-up, p 71. At 330-333 and 335-336, his Honour referred to arguments put on behalf of the defence, including a summary of the evidence concerning the 18 July analysts report by Mr Myles. It is not necessary to set this material out in detail, but it may be noted that his Honour told the jury (at 332, AB 4552): "A question you will have to consider is; if there was some confiding of information by Mr Poole to Mr Myles, and to that extent the Chinese wall was breached, did that have the effect that the information became generally available or ceased to be not generally available?" 640 In our view, the broad complaint made in ground 16(a) is not made out. It is necessary, however, to turn to the more specific complaints. That set out in sub-par (i) of ground 16(b) is not entirely clear; the aspect set out in sub-par (ii) seems to challenge a proposition that evidence could be not generally available, despite the fact that it was available to clients of MEL, or investors who had access to MEL research. 641 The gravamen of the Appellant's complaint in this regard was explained in submissions as twofold. On the one hand, it was said that the focus of par (b)(i) of the statutory definition was on the "manner" in which information might be made known to a relevant section of the public, not on the actual knowledge of those persons. The second aspect of the complaint was that the clients of MEL would themselves have formed a relevant section of the public. 642 As a matter of construction and fact, both of these propositions may be conceded: the real question is whether the trial judge directed the jury in a manner which suggested the contrary. From the questions set out at [639] above, it is clear that his Honour was not excluding MEL clients as a relevant section of the investing community. However, the defence sought a direction in the following terms, namely that "persons who commonly invest would include investor clients of Macquarie Equities Ltd". 643 During a debate about that proposition (Summing-up, pp 383-384) his Honour indicated to counsel that he was minded to give such a direction because he thought that it was correct. Although the prosecution argued against that proposition, at that stage his Honour remained of the view that such a direction should be given. However, he stated (at p 390) that "on further reflection I am not inclined to say it". By way of explanation, his Honour stated (at pp 390-391, AB 4610-4611): "The jury is likely to misinterpret it, as a direction that if the information became available to investor/clients (sic) of Macquarie Equities, then necessarily the Crown would fail. It should be apparent to the jury that persons who deal with stockbrokers are people who commonly invest. I don't propose to say it." 644 In what was a lengthy summing-up, interspersed with numerous debates with counsel as to the propriety of particular directions, no great weight was placed upon the succinct explanation given for not acceding to the request for a further direction. The terms of the direction were beguilingly, and perhaps misleadingly, simple. By speaking of clients of Macquarie Equities, the direction was silent as to how many clients needed to be considered and as to whether "circumspect" advice to a handful of clients was sufficient or whether a research report was the kind of disclosure being referred to. If the latter, as was presumably intended, it might well have been thought necessary to go over ground as to what particular report was relied upon, the form of disclosure it provided and its relationship with the particularised information. The failure to give the additional direction does not, in our view, demonstrate any error of law in the context of the case. 645 The defence also sought a further direction in the terms set out at [460] above. 646 Of that proposal, his Honour commented (at p 381, AB 4601) that he had difficulty in understanding it. In truth, the redirection sought appears to have been concerned with a separate issue, already dealt with, namely the Appellant's insistence that a price in excess of $2 is an element that must be satisfied at $2.01. 647 A further argument put was that if the particularised information contained inferences which could be drawn from generally available brokers reports, it did not matter that the Appellant may have drawn the same inferences from confidential material. That aspect of the matter has also been discussed, but in the present context appears to rely on the distinction between inferences and underlying primary facts. The Court was not taken to material which was demonstrated to be generally available and which gave rise to inferences having the same effect as those particularised. It was necessary for the Appellant to draw attention to such material and then demonstrate that it was not adequately covered by directions given by the trial judge. The redirections actually sought do not go to this point, in terms, and a redirection of the kind hypothesised, would appear to have been irrelevant and inappropriate in the circumstances of the case. The material available in Mr Myles' report, of 18 July 1996, simply did not support the particularised inferences, in material respects. 648 A ground of appeal which relies upon an alleged flaw in directions given to a jury requires careful attention to the directions in fact given. Despite invitations to attend to this aspect of the argument, the Appellant eschewed such an analysis. The Court has, however, read all the relevant passages in the summing-up and is satisfied that the ground has not been made out. 5. Material effect 649 The fourth element identified by the trial judge in his directions to the jury was that relating to the material effect of the particularised information on the price or value of securities. The terms of s1002C are set out at [366] above. It will be recalled that the question of "a material effect" arises in respect of two limbs of the offence contained in s1002G – see [365] above. The first is that the information in question is not generally available information, but 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 company. The second element is that the insider must know, or "ought generally to know" that if the information were generally available "it might have a material effect on the price or value of those securities". The first element, but not the second, is subject to the additional definition in s1002C. 650 The first question to be answered is what are the "securities", relevantly for the purpose of the present case? The answer appears to be that the securities were those identified in the charge, namely "$2 November 1996 option contracts to buy shares in TNT Ltd". 651 The ground of appeal with respect to this question was ground 23, and was somewhat generally formulated in the following terms: "The judge erred in failing to adequately direct the jury of the way in which information which may be known to persons who commonly invest in securities may be relevant to the fourth element of the offence (materiality)." 652 In the written submissions, this ground was significantly refined. The first concern raised was that the directions given to the jury did not sufficiently distinguish between the elements of general availability and materiality. The Appellant argued that these two limbs were, at least in principle, directed to different matters. Thus, information which was not generally available might be immaterial in relation to the value of a security, whilst, on the other hand, information which was generally available might nevertheless be material. These concepts were blurred, as it was argued, because the jury was directed that information which was generally available would be immaterial because it "would already have influenced investors and in that way been incorporated into the market". The approach taken by the trial judge incorrectly equated that which was generally available with that which was actually known and acted upon. 653 It will be necessary to turn to the direction given in more detail below, but in substance the reasoning of the trial judge was that the section required these questions to be addressed sequentially. In other words, the jury should first address the particularised information and ask whether the Appellant possessed it. If so satisfied, the jury should then ask whether that information was "not generally available". Only when satisfied of that second element, would it go to the question whether that information which was not generally available could be expected to have a material effect on the price of securities. 654 Before turning to the actual directions given, it is convenient to note the second challenge made by the Appellant. The argument may be summarised in the following terms, although it was not articulated clearly in relation to one specific ground. It had in substance three elements to it. Each was an element of the likely determinants of the price of the relevant security. The first involved the level of the takeover offer. If an offer were made at or slightly in excess of $2, the value of the shares might, no doubt, ultimately go above the offer price, possibly in expectation of a higher offer. Nevertheless, for an investor to purchase $2 November 1996 options, rather than lower priced options, the price would have to exceed $2.20. An offer only just in excess of $2 would be unlikely to satisfy that criterion. Secondly, the investor would be influenced by the degree of likelihood of an offer being made at or above $2. If the likelihood were reasonably low, again it would have no material effect on the $2 options, because the investor would be discouraged from buying those options and would prefer to buy shares or options to purchase at a lower price. Thirdly, the necessary finding on this issue was significantly at risk of being misunderstood by the jury because of the evidence of a large jump in the share price resulting from the announcement of the actual takeover offer and the fact that the information which the prosecution set out to prove, as being in the possession of the Appellant, was as to the likelihood of a takeover at $2.40-$2.45. 655 The initial directions given by the trial judge in relation to this matter covers some five and a half pages of the typed transcript: pp 102-107. There is only one passage in that direction which is open to criticism and it is the matter first complained of by the Appellant. Thus at p 106, his Honour directed (AB 4326): "If it is reasonably possible that some part of the information was already generally available information as at 17 September, then as at 17 September that part of the information, if capable of influencing investors, would already have influenced investors in deciding whether to buy or sell options of that sort. If it is reasonably possible that that part of the information was already generally available, then that part of the information, if capable of influencing investors, would already have exerted that influence." 656 In strict terms, that passage does not strictly reflect the statutory elements of the offence, for the reason noted by the Appellant and set out above. However, the complaint is, as the prosecution noted, a highly technical and abstract point. Although the prosecution did not concede that it involved error, it did note that there was no specific aspect of the defence case which raised this argument before the jury, nor, even on appeal, was particular information identified which might have been part of the particularised information, but been generally available, but not have influenced the price of the securities. The error is therefore immaterial and could not reasonably be identified as giving rise to a miscarriage of justice. 657 The second aspect of the complaint concerns the possibility that the jury failed to understand how the particularised information might have affected $2 option contracts. The complaint is not that the directions were positively misleading in that regard – they were not. Rather the complaint must be that the manner in which the information could have a material effect was not sufficiently spelled out. The correct test was explained to the jury on more than one occasion, including during the summing-up at pp 114-115 (AB 4334-4335). The evidence as to materiality was both specific and general. As summarised at p 306, the evidence of three analysts and brokers was to the following effect, namely (AB 4526): "… there was a relationship between the price of a share and an option to acquire a share. If the price of a share goes up, then the price of an option to acquire the share would also go up; not proportionally, but it will go up. The price of an option to acquire a share will go up as the price of the share increases, even if the price of the share is still below the strike price of the option. Qualifications are; if the option is very much out of the money or if there is very little time left in the option." 658 The Crown also relied on evidence of Mr Staehli, who purchased the contracts in question, that he thought it was "a very risky investment". There was also reference to two trades made by clients of Macquarie Equities, some days after the instructions given in relation to the contracts the subject of the charge, but those were at different strike prices, namely $1.50 or $1.65. On 17 September, the options had some two and a half months to be completed. 659 Arguably, there was a reasonably strong argument to be put on behalf of the Appellant that an offer marginally above $2 would have a material effect on the price of an option contract at $1.65, but would have only a minor effect, if any, on the $2 option contracts. On the other hand, in general terms, the evidence of the analysts and brokers left it open to a jury to conclude that there could be a material effect on the price of a $2 option. For example, supposing that an offer was made at the (perhaps unlikely) price of $2.01, the price of the $2 options might, in mid-September, have increased to 5 cents, because the possibility of a takeover offer at that price would suggest the possibility of an increased offer before the end of November. Even if the price of the options was increased only to 5 cents, that would be a material effect, because the value of the securities purchased by the Appellant would have doubled. 660 The significance of this approach is not because it is desirable to speculate as to how the jury might have viewed the matter, but because the defence did not seek a direction of the kind now envisaged. The direction proposed went only to the first point raised above, being formulated in the following terms: "Your Honour should tell the jury that information which may be known to some investors may be relevant to materiality even if that information may not be generally available." For reasons already noted, the complaint in relation to the first aspect of the direction appears to be immaterial. The fact that the trial judge declined to give a direction in those terms does not, therefore, demonstrate that there was any miscarriage of justice, or indeed error on his Honour's part. The fact that his Honour was not asked to give a direction of the kind now being considered is, however, highly relevant. It would at least require the Appellant to overcome the hurdle provided by rule 4 of the Criminal Appeal Rules. However, at the very least, the Appellant would need to have demonstrated that the lack of a request was perhaps an oversight, rather than a belated raising of an issue which was not in terms put before the jury. The Crown's submissions that no argument to this effect was in fact put to the jury was not rebutted by the Appellant. Accordingly, the ground must fail. 6. The Appellant's approach on appeal 661 The Appellant's approach, as presented to this Court, was to break the various elements of the offence and the evidential components of the prosecution case into numerous discrete parts, with the purpose of demonstrating that at each step an explanation consistent with innocence was reasonably open. This strategy distracted attention from the cumulative effect of various parts of the evidence and various interlocking components of the prosecution case. In response, the Director tended to overemphasise the coherence, simplicity and unity of the prosecution case at trial, but there is no reason to suppose from the summing-up, that exaggerated positions taken either by the prosecution or the accused distracted the jury from the real issues before it. 662 The second weakness in the Appellant's approach, on appeal, was that it distracted attention from those particular grounds which may have had greater merit, by giving equal emphasis to numerous grounds, many of which were patently untenable. In that respect, there was a marked departure on the appeal from the approach taken at trial. For example, on the appeal, equal weight was given to the proposition that the prosecution had failed to prove that the Appellant possessed information which rendered him an insider, on the one hand, and, on the other, that the information he possessed as an employee of Macquarie Bank was information which was generally available. As the Director pointed out in his submissions to this Court, because the thrust of the Appellant's case at trial was to deny any involvement in the purchase of the options contracts, limited emphasis was given to his state of knowledge at the relevant time and perhaps less to the question of general availability of that knowledge. 663 The tendency of the Appellant to use the hearing of the appeal to re-run matters determined against him at trial, without always clearly identifying appellable error below, has not assisted the expeditious resolution of the appeal. Further, as the Director has pointed out in respect of a number of arguments, issues not raised at trial invite the application of r 4 of the Criminal Appeal Rules, although it has not been necessary to reject grounds on that basis. 7. Shepherd directions 664 To be satisfied of a person's guilt beyond reasonable doubt the jury must be satisfied that the circumstances exclude "any reasonable hypothesis consistent with innocence": see Chamberlain v The Queen [No. 2] (1984) 153 CLR 521 at 536. Where the theory of the prosecution's case depends upon a chain of reasoning, with a number of indispensable steps, the jury should properly be directed that they must be satisfied beyond reasonable doubt as to each step in the reasoning. Where a step in the reasoning depends upon a fact, described as an "intermediate" fact because it does not directly establish guilt, and the fact provides "an indispensable" basis for the inference of guilt, the jury should be directed that it can only reach a conclusion of guilt if satisfied beyond reasonable doubt that the indispensable intermediate fact has been established. The need to give such a direction was discussed in Shepherd v The Queen (1990) 170 CLR 573 at 576 (Mason CJ), 579-580 (Dawson J, with whom Toohey J and Gaudron J agreed). However, the need for such a direction was qualified by Dawson J in the following manner at p 579: "On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. … [Such a warning] should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." 665 There were, no doubt, a number of reasons why Dawson J was careful to express himself in guarded terms. Such a direction may be "unnecessary or confusing", depending on what else the jury has been told and depending on the circumstances of the case. Further, however the Crown may have presented its case, one cannot be sure what process of reasoning a jury will necessarily follow and it may be difficult to determine whether the jury will treat a particular fact as "indispensable". As Dawson J noted, there is a useful metaphorical distinction drawn between evidence which may be understood to consist of 'strands in a cable', as opposed to evidence which forms 'links in a chain', links in a chain providing indispensable intermediate facts. Nevertheless, there may be no clear dichotomy between the two images in particular circumstances: see Regina v Merritt [1999] NSWCCA 29 at [69] (Wood CJ at CL, James and Adams JJ). 666 In Velevski v The Queen (2002) 76 ALJR 402, the prosecution relied upon a number of circumstances as pointing to the guilt of the accused, including a lie which was said to demonstrate consciousness of guilt. In a joint judgment, at [43], Gleeson CJ and Hayne J noted an argument that the jury could have concluded that the lie was the conclusive element which removed any reasonable doubt as to the accused's guilt. It was therefore said to be an indispensable intermediate fact, requiring proof beyond reasonable doubt. Their Honours responded at [44]: "The argument should be rejected. It proceeds from a premise about the way in which the jury might approach the task which is wrong. It assumes that the jury will consider the evidence in separate and isolated compartments. That assumption is not made because the evidence relates to different steps in a chain of reasoning, but solely because it suits the appellant's immediate forensic purposes to isolate one of the pieces of evidence as the critical element that will conclude the issue of guilt. Once it is accepted, as it was, that the telling of the lie was not necessarily an intermediate indispensable fact in this case, it becomes apparent that the jury had to consider the evidence as a whole. The lie was not a separate fact which, together with other facts, would form links in a chain of reasoning." 667 The danger of the metaphor, noted in Merritt, is that a rope need not consist of a multitude of strands, but may have a discrete and relatively small number of cords. Further, each cord need not be of the same strength. If one cord provides the bulk of the load-carrying capacity, the rope may begin to look more like the chain. And even if the various elements of the evidence are each of comparable weight, their overall persuasiveness may result from the fact that they all tend in the same direction, a concept which is not fully captured by the metaphor of strands in a rope. Accordingly, the obligation to give a particular direction of the kind sought, must depend upon an evaluative assessment of the nature of the prosecution case and the evidence relied upon in support of it. 668 There were three categories of evidence in relation to which the Appellant had sought "Shepherd directions" at trial and sought to challenge on appeal the refusal of the trial judge to give such directions. The directions sought related to a number of topics, identified with varying degrees of precision. (1) Matters complained of: general 669 Ground 15 read as follows: "15 There was an error of law or a miscarriage of justice because the judge did not give the jury Shepherd directions … in relation to the following intermediate facts: (a) the appellant did the critical acts undertaken in the name of Booth (that is, that Booth did not exist and the appellant was Booth) (b) the appellant created Ex D71-74 (c) the appellant accessed and read Tennis documents in the offices of MCF." 670 Each of these three categories requires some further elucidation. Thus, in his written submissions, the Appellant identified the "critical acts" referred to in par (a) as the following: "(a) Spoken to Mr Staehli and placed the order for the options or (b) Typed up the letters to Staehli or (c) Obtained some of the cheques in the name Booth or (d) Opened the mailbox or (e) Opened the voicemail or (f) Established the cash management trust account (g) Created the four floppy disk documents in Ex D71-74." The item at (g) can be ignored for present purposes as it falls within ground 15(b). 671 Some of these categories are curiously framed, because they are referred to in the submissions as matters in which some other person may have been "involved". That was a reference to the opening of the case by the prosecution in the following terms (Tcpt, p 31, AB 864): "The Crown says that all the indications are that there was no other person who had any involvement in what Mr Hannes did. The Crown does not accept in this case the onus of excluding the involvement of any other person and the Crown accepts the onus of establishing its case, Mr Hannes respectively purchased the securities, respectively obtained the cash, respectively obtained the bank cheques. As I said the Crown doesn't accept the onus of excluding the involvement of any other person." That comment was made in the course of describing to the jury the effect of the record of interview namely (AB 863-864): "The effect of what Mr Hannes says here is that this other person without his knowledge or authority purchased the securities. If that was a reasonable possibility then you would be obliged to acquit Mr Hannes and the Crown accepts the onus of excluding the possibility that this other person purchased without knowledge and authority the securities." 672 The central element of the prosecution case in relation to count 1 was that the Appellant purchased identified securities. It was not in dispute that the securities were purchased through the options broker, Mr Staehli. Accordingly, the prosecution accepted the obligation to demonstrate beyond reasonable doubt that the Appellant instructed Mr Staehli to purchase the options. This was not an intermediate fact: it was indeed, the first element of the offence identified in the document with respect to count 1, given to the jury during the trial. It will, therefore, be necessary to characterise with some greater precision the specific acts complained of and focus on their role in the proceedings. 673 The second class of conduct covered by ground 15 was the creation of Exhibits D71-D74. These exhibits were a number of documents recovered by the prosecution from the hard drive of the Appellant's computer, which, according to the prosecution, appeared to reflect an attempt by the Appellant to construct a form of defence, albeit one abandoned long before the prosecution was commenced. The defence case was that they supported an hypothesis consistent with innocence. Those documents, together with Exhibit 261, which was a recreation of indentations found on a notepad seized from the Appellant's home, were separately relied upon in support of ground 1, which, without any attempt at particularisation, asserted that the verdict on count 1 was "unreasonable, or cannot be supported having regard to the evidence". It is, accordingly, convenient to deal with grounds 1 and 15(b) together. 674 The third class of conduct identified in ground 15 concerned the prosecution claim that the Appellant had obtained access to and read confidential documents relating to Project Tennis. Those documents were a key source of the information said to be possessed by the Appellant, but not generally available, which encompassed two elements of count 1. The nature of this evidence and the manner in which it was left to the jury, were separately challenged in ground 13. (2) Shepherd directions: the critical acts 675 First, the complaints in relation to evidence which comprised the elements of the various counts should be rejected. Each count was left to the jury unequivocally on the basis that the prosecution had to establish each element beyond reasonable doubt. That included the acts of instructing Mr Staehli to purchase the option contracts and the obtaining of the bank cheques, being pars (a), (b) and (c) as set out at [670] above. 676 Further, as the Chief Justice noted in the first appeal (158 FLR 359 at [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." The material which supported that conclusion was set out at [57]-[78] in his Honour's judgment. The evidence was not materially different in this respect at the second trial. Even if there had been a relevant omission from the directions given by the trial judge in this regard (which there was not) there would have been no miscarriage of justice. 677 The other so-called "critical acts" involved the opening of (d) the mail box, (e) the voice mail account and (f) the cash management trust account. These were all undertaken in the name "M Booth". As the argument was developed, the direction sought was that the jury must be satisfied beyond reasonable doubt that M Booth was the Appellant and that all of the acts done in the name of M Booth were done by the Appellant. In parts, the Appellant's argument tended to elide the two elements involved in the submission. While it was indeed the Crown's case that the Appellant did each of the acts in question (and there was no dispute that they were done in the name of M Booth), there was a further step in the argument which the Appellant needed to make good. It was that each of the courses of conduct referred to independently constituted an indispensable building block in the prosecution case, in the sense that it involved a link in a chain of reasoning leading to the inference of guilt. 678 This last step was not established. For example, each act involved an element in an overall course of conduct which, taken in isolation, was an innocent act. In relation to count 1, none of the opening of the cash management account, the use of the mail box, nor the existence of the voicemail account, formed part of the criminal conduct, or a necessary link in a chain of conduct which resulted in the subject of the charge. The Appellant could have been convicted without undertaking any of those acts, or at least without the Crown proving those acts. Their relevance in the present case was twofold. On the one hand, to the extent that the Crown could establish that the Appellant undertook any one of these acts, it helped to demonstrate that he was the person who, using the pseudonym "M Booth", purchased the securities. Secondly, the fact that each act was undertaken in an apparently surreptitious fashion, using a false name, suggested that if the Appellant undertook them he did so with a consciousness of the impropriety of his underlying scheme. Each was, in one sense, a preparatory act. To the extent that the prosecution could link the Appellant with each preparatory act, it improved the strength of its case that the Appellant purchased the securities the subject of the charge. Each was a matter to be put into the scales, but none was indispensable in the relevant sense. This ground should be rejected. (3) The floppy disc documents 679 The second class of which complaint was made that no Shepherd direction was given, was the creation of the floppy disc documents, and the document entitled "Should I visit ASC or not", which are referred to inter alia at [147] and [149] above. (The reference to "ASC" is to the Australian Securities Commission, as it was then known.) 680 The first document in question was created on 5 September 1996, but not on the Appellant's computer (Ex 071, AB 8942). It contained six brief paragraphs and was headed "Agreement for joint investment". It appeared to refer to two individuals, identified as "SH" and "MS-L". Although not created on the Appellant's computer it had existed on, but was deleted from the floppy disc found in the Appellant's possession, on 3 October 1996. Given its provenance, the reference to "SH" could be inferred to be a reference to the Appellant, Simon Hannes. Paragraph 5 referred to "SH's investment to be sister's for tax purposes". As his sister was Mignon Booth, there was an arguable connection between the Agreement and the purchase of the securities. The document also stated that "MS-L does not want to hold assets in Australia", a condition not inconsistent with the Appellant having purchased the securities, even assuming the Agreement was genuine, in the name of his sister. 681 The second document was a draft letter dated 23 September 1996 (Ex 072, AB 8944). It purports to be a copy of a letter to the Appellant by a person who typed the name "Mark" in preparing it on the computer. The letter asserted that the author had been trying to contact the Appellant since 21 September and further stated: "I have made an investment which I need to tell you about." The instructions to Mr Staehli were given on 17 September and Staehli advised his client on 20 September that the options contracts had been acquired. 682 The third document was a lengthy letter dated Friday, 27 September 1996, again purportedly from "Mark" to the Appellant (Ex 073, AB 8946-8949). It was purportedly written following a lunch between the Appellant and the author on that day. 683 The fourth document was a brief letter indicating that the author was returning the Appellant's laptop to him and the discs which the Appellant had given him (Ex 074, AB 8950-8951). It may be inferred that the author was on the point of departure. The letter was undated, but was prepared or at least downloaded to the floppy disc on 3 October 1996, which was also the date on which each of the four documents was deleted from the disc. 684 Exhibit 261 (AB 7486) fell within a slightly different category, it was created from indentations in a student notebook found at the Appellant's house by the federal officers. In his record of interview, set out at [150] above, the Appellant stated that he left Australia in November to locate his colleague and discuss what to do. He said in part (AB 7114-7115; Ex 203 pp 27-28): "And I at that stage seriously discussed with him that he should come back to Australia and we should go and see the ASC together. He was not keen on that, although he didn't rule it out, and I came back to Australia." 685 The handwritten document read: "SHOULD I VISIT ASC OR NOT CONS · Reveal Macquarie wrongdoing (breach of Chinese walls, covering 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 truth (saw something on visit to MBL?) but contra agreed to give monies back. · Destroy others reputations eg Mortimer. · Embarrass Mig – feel object of charity. PROS · Right thing to do. · Only way to establish I am innocent. · Have done nothing wrong. · Am confident I have full story after my conversation 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" 686 This material was all patently double-edged. The prosecution case was that the documents were fabricated by the Appellant and, it might be inferred, abandoned, because they patently raised more questions to the inquiring mind than they answered. The defence, on the other hand, maintained that the documents were authentic and provided evidence of the involvement of a third person, who was responsible for purchasing the option contracts, without the authority or knowledge of the Appellant. The jury should have been directed, the Appellant argued, that unless they were satisfied beyond reasonable doubt as to the falsity of the documents, the Appellant should be acquitted, because the document provided a reasonable explanation of the events, consistent with his innocence. 687 With respect, that submission falls into the error identified in Velevski (supra). It may suit the Appellant's case to isolate the evidence, but there was no reason to suppose that the jury would approach it in that manner and there was no reason to tell the jury that they should approach it in that manner. They were entitled to treat it as an item of evidence to be placed in the scales with various other items which may have tended to demonstrate that the active party was at all times the Appellant, and that "MS-L" did not exist. It would have been quite inappropriate to give a Shepherd direction in this circumstance and his Honour was correct to decline to do so. (4) Access to documents relating to Project Tennis 688 The material referred to in ground 15(c) identified, as an intermediate fact, the conduct of the Appellant in having access to and reading documents in the offices of MCF relating to the progress of Project Tennis. 689 The relevance of the material concerning the progress of the takeover negotiations has been addressed in the discussion of admissibility. The directions in fact given by the trial judge have also been considered in dealing with the Appellant's possession of the particularised information and were found to have been appropriate and should not have been confusing. That aspect of the complaint in ground 13 failed, but is relevant to what follows. 690 Ground 15 raised the separate issue as to whether a Shepherd direction should have been given in relation to this material. The Appellant's argument was succinctly stated in the following passage in his written submissions: "A jury could not have inferred that Hannes acquired knowledge of the Particulars without accessing the documents because: · there was no other source conceivably available to him … and · the jury could never make the inference that Hannes acquired knowledge of the Particulars from a source other than the documents, because it could never be the only possible reasonable inference, as the Crown case was that the Particulars could have been inferred from the 'Further Particulars'." 691 In substance the argument was that, there being no other known source of information available to the Appellant, he must have obtained the information, if at all, from the documents and therefore he must not merely have had the opportunity to read the information by obtaining access to the documents, but in fact have obtained the information in that way. 692 The pre-trial correspondence between the parties and applications to the trial judge, had involved a number of complaints made on behalf of the Appellant with respect to the particularisation of the various counts, and especially in relation to the means by which the Crown intended to prove that he was "possessed of" the information in the indictment. The final application in that regard resulted in a judgment of 6 December 2001 in which his Honour declined to order further particulars. However, at [8], his Honour noted (AB 286H-286I): "One way in which the Crown seeks to prove that the accused was possessed of that information is by showing that the accused inferred that information from a number of pieces of other information possessed by him. … those other pieces of information have been fully particularised by the Crown in the twenty-eight numbered paragraphs in the enclosure with the Crown's letter of 5 October. However, this is not the only way in which the Crown seeks to prove that the accused was possessed of the information particularised in the indictment. The Crown also relies, for example, on what it says were admissions made by the accused, when he was interviewed and when he had a conversation with Mr Moss. The Crown referred to parts of the Chief Justice's judgment on the appeal against conviction after the first trial … which clearly indicate that the Crown case on possession of information by the accused is not limited to alleging that the accused inferred the information from a number of other pieces of information." 693 The references to the way in which the matter had been put at the first trial are set out in the judgment of the Chief Justice on the first appeal at 158 FLR 359, [224]-[238] and need not be repeated here. 694 In these circumstances, the difficulty with identifying and seeking an appropriate Shepherd direction are immediately apparent. There was no single route by which the Crown sought to establish its case, nor any specific piece of information (other than the particularised elements in the indictment) which must, therefore, itself be proved beyond reasonable doubt, in order to establish the relevant particulars. These considerations, taken together with the fact that no Shepherd direction was actually sought in relation to this matter, require that this particular ground of appeal be rejected. PART E: Insider trading charge - Conclusions 1. Unsafe and unsatisfactory verdicts 695 The first ground of appeal in relation to count 1 (and indeed in relation to the other counts) stated that the verdict of the jury was "unreasonable, or cannot be supported, having regard to the evidence", being the general ground provided under s6(1) of the Criminal Appeal Act. The thrust of the submissions made in support of this ground was directed at the first element of count 1, namely that the Appellant was not the person who purchased the securities, the second element, namely that he did not know the information particularised and the fourth element, namely that the matters particularised were not material. Each of these facets of the prosecution case has been separately addressed above. 696 Although the Appellant presented his argument with respect to the general ground, in the absence of any sustainable challenge to the admissibility of evidence or the directions given to the jury, it is difficult to see how the Appellant can succeed on a global challenge. The evidence tendered by the prosecution in support of count 1 was multifaceted and extensive. It needed to establish both that the Appellant purchased the securities in question and that he had a state of knowledge, as particularised, at the time that he did so. Much of the prosecution case was circumstantial and relied upon inferences drawn from a range of pieces of evidence. 697 There is no doubt that the principles to be applied in this regard are those set out in the joint judgment in M v The Queen (1994) 181 CLR 487, as confirmed in the joint judgment in Jones v The Queen (1997) 191 CLR 439 at 451-452 (Gaudron, McHugh and Gummow JJ): see now Dyers v The Queen (2002) 210 CLR 285 at [62], [63] (Kirby J, McHugh J agreeing, at [47]) and [133] (Callinan J, Gaudron and Hayne JJ agreeing at [22]). In the joint judgment of Mason CJ, Deane and Dawson and Toohey JJ in M v The Queen, their Honours noted at 492-493 that the question is not whether there is evidence to support the verdict, but: "The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside." 698 After reference to authority, their Honours continued: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." In making that assessment, the Court is required to make due allowance for the fact that doubts might be resolved because the jury had the opportunity, and the primary responsibility, for determining matters of fact. Nevertheless, unexplained deficiencies in the evidence, which give rise to a doubt experienced by an appellate court, should lead to a verdict being set aside if the court is satisfied that "there is a significant possibility that an innocent person has been convicted": at 494. 699 As Kirby J noted in Dyers at [63] the appellate court is "bound to review the evidence in its entirety", but will necessarily place reliance upon the assistance of the parties in drawing attention to inadequacies in the evidence and the inferences which may be drawn from it. 700 In accordance with the same principles that must guide a trial judge in giving directions to the jury, this Court should make that assessment without regard to any possible adverse inference which might be drawn from the failure of the Appellant to testify. 701 During the course of argument, the Appellant raised on numerous occasions the contention that aspects of the Crown case were inadequate, on the basis that they left open a reasonable inference consistent with innocence. However, as has been discussed in relation to Shepherd directions, once the actual elements of the offence were put to one side, there were few aspects of the Crown case which constituted indispensable links in a process of reasoning. Rather, the case depended to a significant extent on the implausibility of particular events occurring at a particular time, by coincidence. There were reasons why the jury might not have accepted all aspects of the prosecution case, the most compelling of these contentions having been put to the jury by counsel for the Appellant in his closing address. The jury did not accept those submissions. 702 The discussion of the evidence which will appear from the preceding parts of this judgment has dealt with the prosecution case in a piecemeal fashion, in order to deal with the specific grounds of appeal. That treatment may not do justice to the strength of the prosecution case, taken as a whole. That is not to say that conviction was inevitable, but rather that each element of count 1 was supported by evidence and the verdict cannot be characterised as unreasonable. 703 This Court obtained extensive, not to say exhaustive, assistance from the parties in assessing the evidence. (The Appellant provided more than 350 pages of footnoted written submissions, together with oral submissions which covered more than 300 pages of transcript.) Witnesses were tested at the trial as to the strength of their observations and recollections, but it is unlikely that the jury's assessment of the evidence would have been materially affected by questions of credibility. As noted on more than one occasion, aspects of the prosecution case, taken in isolation, are inconclusive and permit inferences consistent with innocence. Taking the evidence as a whole, the Court is left with no real doubt that the Appellant did the acts complained of, using the pseudonym of "M Booth". Further, if he purchased the securities as alleged, the inference, based directly on circumstantial evidence and also on the implausibility of coincidence as an explanation for his acts, provides a sound basis for accepting that he had the information particularised. Questions of materiality and non-general availability have been discussed above. The Court's own assessment of the evidence in that regard also leaves it with no real doubt that those elements of the offence were satisfied. It is not necessary to repeat the discussion of the critical evidence called into question as it has been discussed above. 704 It follows that the Court does not entertain as a significant possibility the Appellant's assertion that he may have been innocent and the verdict should not be set aside on that ground. 2. Conclusion: Count 1 705 The appeal with respect to conviction on count 1 should be dismissed. An application for leave to appeal against the sentence was not pressed and should be refused. PART F: The reporting charges 1. Introduction 706 The Crown alleged that the Appellant committed offences against the provisions of s31(1) of the FTR Act with respect to a number of banking transactions, being cash withdrawals (Count 2) and the cash purchase of bank cheques (Count 3) in amounts under $10,000. (This provision is set out by Basten JA at [62] above.) The Crown case was that these transactions were the means by which the purchase of options in TNT Limited was financed. The Crown contended that both offences were committed in the lead up to the commission of the insider trading offence specifically to create the anonymity of cash needed to commit the insider trading offence. 707 The banking transactions to which these counts relate were summarised in flowcharts, being Exhibit 273 (withdrawals) and Exhibit 274 (bank cheque purchases). 2. Elements of the reporting charges offences 708 The four elements of the offences charged in Counts 2 and 3 corresponding to the provisions of s31(1) of the FTR Act, are set out below: (a) That the accused was a party to two or more non-reportable cash transactions. It was the Crown case that the Appellant conducted all of the transactions. However, it also contended that this went beyond what was required for the charges to be established. This is the first element. (b) That, having regard to the manner and form in which the transactions were conducted, and any explanation made by the Appellant as to the manner and form in which they were conducted, it would be reasonable to conclude that the Appellant conducted those transactions in that manner and form for the dominant purpose of not giving rise to a significant cash transaction as defined under the FTR Act . This is the second element. In its written submissions, the Crown identified the following matters as those it relied upon in relation to this element of the offences: (i) A $20,000 withdrawal at the Commonwealth Bank, Martin Place (which included the Financial Transactions Act notification to Austrac) following which the Appellant made all the transactions under $10,000. (ii) The shortness of time over which the transactions were carried out (including all nine bank cheques being purchased on the same day). (iii) The explanation given by the Appellant in relation to both the withdrawals and the purchase of the cheques (namely that this was the only way he thought he could get the amount of cash he needed for the purpose of affecting an arrangement with an investment syndicate partner, there being no separate explanation proffered for the nine bank cheques) the Crown contended was not credible. (c) That at the time of each of the transactions, the Appellant knew that each involved the physical transfer of currency from one person to another, that he also knew the facts which made the other party to the transaction a cash dealer for the purposes of the FTR Act and that the transactions involved currency of less than $10,000 in value (the third element). (d) That at the time of conducting the transactions, the Appellant knew that a transaction involving the physical transfer of currency of not less than $10,000 in value had to be, by law, reported to the government agency and that a transaction involving a physical transfer of currency of less than $10,000 in value did not have to be reported (the fourth element). The Crown relied on the fact of the 16 transactions themselves, one after the other, cash and cheques, as establishing this element because, it contended, there was no other (credible) reason or explanation as to why a person would undertake 16 transactions, one after the other, for those amounts. 709 The following table was produced by the Crown to indicate the facts and the pattern of withdrawals of cash and purchases of bank cheques (AB 462). Date & time Withdrawn Spent 6/9/1996, 11.00 am $10,000 – CBA Chatswood $9,000 – CBA 48 Martin Place 6/9/1996, 11.48 am $10,000 – CBA Circular Quay 6/9/1996 $20,000 – CBA Pitt St/Martin 9/9/1996, 10.49 am $9,900 – CBA Crows Nest $9,000 – CBA Camperdown – 12.27 pm 9/9/1996, 11.04 am $9,000 – CBA Neutral Bay $9,000 – ANZ Camperdown – 12.45 pm 9/9/1996, 11.36 am $9,000 – CBA Liverpool St $9,000 – ANZ Leichhardt – 1.02 pm 9/9/1996, 11.50 am $9,000 – CBA Park St $9,000 – NAB Leichhardt – 1.14 pm 9/9/1996, 12.08 am $9,000 – CBA Town Hall $9,900 – CBA Leichhardt $9,000 – Westpac Annandale $9,000 – Westpac Roseville $9,000 – NAB Roseville $9,000 – CBA 200 George St Total: $85,900.00 $90,900.00 3. Second element - Standard of proof (Ground 25) 710 The appeal in relation to the second element of Counts 2 and 3 alternatively asserts error in the trial judge's direction or a miscarriage of justice because the Crown told the jury the second element of the offences had to be proven on the balance of probabilities without contradiction by the trial judge. 711 It is noted that the trial judge provided written directions in relation to the elements of the two FTR Act offences (AB 5861) and read them to the jury (AB 4337-4338) and provided oral directions. The jury were also provided with copies of relevant statutory provisions. (1) Trial judge's directions on standard of proof 712 Whilst the trial judge gave standard directions in relation to the onus of proof and the criminal standard of proof, there was a specific direction given concerning the second element of the FTR Act offences, namely, that that element need not be proven beyond reasonable doubt. The specific direction in this respect concerning Count 2 is recorded at AB 4355-4356 and, as to Count 3, at AB 4388-4389 and AB 4336-4359. 713 The Crown contended that both the written and oral directions given by the trial judge in this respect were in accordance with the statutory formulation and with the analysis in Question of Law Reserved (No. 2 of 1998) (1998) 70 SASR 502; 154 ALR 161 applied in Regina v Leask [1999] NSWCCA 33 (Barr J, McInerney JA, cf Hulme J.) 714 The Appellant, at trial, sought to reserve an objection in the following terms: "The standard of proof is beyond reasonable doubt – the jury must find beyond reasonable doubt that it was 'reasonable to conclude' that the accused in fact had the purpose. [It is acknowledged that the Court is bound by Leask]." 715 The Appellant's written submissions expressly acknowledged as "relevant authorities" the judgment of Dawson J in Leask v Commonwealth of Australia (1996) 187 CLR 579 and of Doyle CJ in Question of Law Reserved (supra) and of Barr J in Leask (supra). 716 The Appellant relied upon two arguments. Firstly, he sought support in the general terms of s141(1) of the Evidence Act 1995, which provides: 141(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. 717 The Australian Law Reform Commission Report No. 26 stated that this provision was intended to apply to "all" offences: paragraph 1000. The Appellant also relied upon the fact that s141(1) post-dated Leask v Commonwealth of Australia (supra) and Question of Law Reserved (supra). The section was not referred to by Barr J in Regina v Leask (supra). 718 Secondly, he contended that the "view" expressed in Question of Law Reserved and in Regina v Leask was "unsound". This was put upon the basis that s31 did not, in clear and unambiguous terms, convey an intention to displace the criminal standard. Rather the wording of s31(1), "reasonable to conclude", was introduced so as to change the factual issue from what was said to be the equivalent United States legislation so that it was clear that a conviction could be obtained by reference only to surrounding objective facts without necessarily requiring evidence from the accused. The provision, it was contended, did not alter the standard of proof. 719 The directions given to the jury on the second element by the trial judge were framed in accordance with the provisions of s31(1) and the relevant authorities referred to above. The provisions of s31(1) of the FTR Act created a statutory offence and the standard of proof to be applied in determining the issue of "sole or dominant purpose". Section 31(1)(b) contains within its terms the relevant standard of proof as to the fact of "purpose" which standard has been identified and confirmed in Question of Law Reserved (supra) and applied in Regina v Leask (supra). 720 The next question is whether s 141 of the Evidence Act requires a different approach. If it did, there would be an inconsistency between the Evidence Act and the FTR Act. The Evidence Act being a State law, and the FTR Act being a Commonwealth law, any inconsistency would engage s 109 of the Constitution. Although it might readily be accepted that the Commonwealth law would prevail, the Court would be precluded from reaching that conclusion until notices had been issued under s 78B of the Judiciary Act 1903 (Cth). However, on the correct legal analysis, that issue does not arise. 721 The conclusion that the Evidence Act was intended to affect the operation of the FTR Act would be surprising, because s 8 of the Evidence Act provides that it "does not affect the operation of the provisions of any other Act". Section 8 is not, in its terms, applicable, because the term "Act" should be understood to be a reference to an Act of the New South Wales Parliament: Interpretation Act 1987 (NSW), ss 12 and 65. Nevertheless, it would be surprising if the Parliament intended to affect the operation of a Commonwealth Act, which would be a matter generally beyond its power. 722 Although s 4(1) of the Evidence Act provides that the Act applies "in relation to all proceedings in a NSW court", that section is not the source of its application in relation to the trial under consideration. Because the Appellant was charged under a Commonwealth law, the Court was exercising federal jurisdiction invested by s 68(2) of the Judiciary Act: see Solomons v District Court (NSW) (2002) 211 CLR 119 at [3]. The State Evidence Act therefore applies, not of its own force, but by virtue of s 79 of the Judiciary Act: see Solomons at [21] and [22]; see also Meteyard v Love (2005) 65 NSWLR 36; (2005) 224 ALR 588; 56 ACSR 487, at [62] and Director of Public Prosecutions (Cth) v Germakian [2006] NSWCA 275 at [42]-[43]. However, s 79 will not pick up and apply as federal law the State Evidence Act to the extent that another law of the Commonwealth otherwise provides. The FTR Act is such a law. Accordingly, to the extent that it otherwise provides, s 141 of the Evidence Act has no application. (2) Miscarriage of justice: Crown references to "balance of probabilities" re s31(1)(b) 723 The trial judge, as earlier noted, gave the jury detailed directions both in written form and orally and specifically in relation to the second element of Counts 2 and 3. 724 By way of prelude to directions on the second element, the trial judge stated (AB 4229): "The directions I have just given you, to the effect that the burden of proof is on the Crown to prove every one of the elements of a crime with which the accused has been charged beyond reasonable doubt, is subject in this trial to one, and only one, exception. That one exception is that there is one element of the crime charged in the second and third counts of the indictment which the Crown bears the onus of proving but which the Crown need not prove beyond reasonable doubt. I will identify this element for you when I give directions about the elements of the crime charged in the second and third counts of the indictment. However, it is vital that you understand that, apart from that one exception, the onus is on the Crown to prove beyond reasonable doubt every element of a crime with which the accused has been charged." 725 Reference has already been made to the fact that both general and specific directions were given to the jury in relation to the second element in Counts 2 and 3. It is sufficient to appreciate the particularity with which those directions were given to refer to the summing up at AB 4355. At that point, the trial judge read to the jury the second element of the offence and then emphasised the following: • The word "purpose" referred to the actual purpose the accused in fact had. • That the expression "it would be reasonable to conclude" is used in the statement of the second element in the Second and Third Counts Elements document. • That the question for determination by the jury was "… whether, having regard to the matters to which you must have regard, that is, the manner and form in which the transactions were conducted and the explanation made by the accused as to the manner and form, it would be reasonable to conclude that the accused conducted the transactions in that manner and form for the dominant purpose set out in the statement of the element" (AB 4356). • The jury were instructed that it was not necessary that they should be satisfied beyond reasonable doubt that they should draw the required conclusion (AB 4356): "The Crown has to prove that 'it would be reasonable to conclude'. It is sufficient that you are satisfied unanimously that it would be reasonable to draw the conclusion." • The jury were instructed (AB 4356) that this element of the offence charged in the second count and the corresponding element of the offence charged in the third count "… are the only elements of the offences charged in this trial which the Crown does not have to prove beyond reasonable doubt. All other elements of the offences charged must be proved by the Crown beyond reasonable doubt." 726 The Appellant complains (AB 3863) that the jury were told by the Crown in its closing address that "This element of reasonable to conclude is on the balance of probabilities. That's the second element of the FTRA offence". The Appellant contends that the jury were misled by such references and that the trial judge should have specifically corrected the Crown's statements in this respect, but did not do so. 727 There is no substance to this ground of appeal. The Appellant accepts that the directions given were in accordance with the statutory provisions as analysed by Doyle CJ in Question of Law Reserved and the Court of Criminal Appeal in Regina v Leask [1999] NSWCCA 33. 728 The general principle that courts of intermediate jurisdiction should adopt the same construction of legislation, particularly where it is a Commonwealth statute, is well established: see R v Daher (1981) 2 NSWLR 669 and R v Abbrederis [1981] 1 NSWLR 530. Similarly, and no doubt more broadly, this Court should follow its earlier decisions in respect of identical legislation: see R v Parsons [1983] 2 VR 499 at 506; (1983) 53 ALR 568 at 576. 729 The particularity and emphasis, repeated by the trial judge in his directions, ensured that the jury understood that the onus or standard of proof in relation to the second element was the only exception in the case, the Crown's onus otherwise to prove the elements of the offences beyond reasonable doubt. A reading of the general and specific directions given by the trial judge makes it plain that, notwithstanding references to "the balance of probabilities" during the course of the Crown address (which concluded on 21 August 2002), that by 2 September 2002, when the jury were directed by the trial judge, the directions gave repeated emphasis to the correct approach to be adopted in relation to the second element of Counts 2 and 3. 730 Given that emphasis and the precision of the trial judge's directions, there was no miscarriage of justice in the trial judge having failed to expressly contradict the statements as to "the balance of probabilities" during the Crown's closing address. Additionally, having examined the Crown's address and the trial directions, there is no basis for the suggestion made by the Appellant that the Crown had in some way usurped the judge's role in explaining and directing the jury on the elements of Counts 2 and 3. 4. "Two or more transactions" (Ground 26) 731 The Appellant raised five objections to the indictment and directions. 732 In order to deal with the objections, it is as well, firstly, to refer briefly to certain facts relating to Counts 2 and 3 and, secondly, to the trial judge's ruling on the Appellant's application as to the form of the indictment. (1) The factual matters relevant to Counts 2 and 3 733 The indictment furnished particulars of six alleged transactions, all being withdrawals of cash from a bank account. These transactions were relevant to Count 2. Particulars were also furnished of nine alleged transactions, all being payments of cash to obtain bank cheques. These particulars related to Count 3. 734 There was no dispute at trial that the Appellant had made all the withdrawals particularised in Count 2. Accordingly, s31(1)(a) was satisfied; the contentious issues concerned s31(1)(b). 735 In light of the admissions made by the Appellant and the absence of any dispute by him that it was he who had made the withdrawals, it would be unlikely that the jury would have any difficulty in concluding that those transactions were non-reportable transactions, being six transactions in all, each having been entered into by the Appellant. 736 In relation to Count 3, the Appellant did not admit that he had obtained all of the bank cheques. Accordingly, there was an issue as to whether the jury could be satisfied beyond reasonable doubt that the Appellant was the person who entered into the nine transactions relevant to Count 3. The Crown case was, in that respect, dependent upon establishing that the Appellant was "M. Booth". 737 In relation to the provisions of s31(1)(b), the Appellant provided in his interview with the Australian Securities Commission investigators (Exhibit 203, pp.24-25) an explanation for making the withdrawals. The explanation was the same in relation to each of those transactions. The Crown relied upon the admissions that were made in the course of the Appellant's explanation. 738 In terms of the matters required to be addressed by the provisions of s31(1)(b)(i) and (ii), there is no rational basis that suggested itself for distinguishing between any one of the five withdrawals ranging from $9,900 as above mentioned down to the withdrawal of $9,000 at 12.08 pm on 9 September 1996. 739 In relation to seven of the nine cheque transactions, the undisputed evidence established the acquisition of the cheques in the name "M. Booth". Accordingly, in relation to Count 3, the jury could only find that the Appellant was a party to those seven cheque transactions upon it being satisfied beyond reasonable doubt that the Appellant was "M. Booth". 740 There was no rational basis upon which the jury could have distinguished one or other of the nine transactions that were particularised by the Crown when considering the Appellant's explanation for obtaining any particular cheque. In this respect, the Crown relied upon information given by the Appellant in the interview with the investigators from the Australian Securities Commission. 741 In each of the Counts 2 and 3 in the indictment, the Crown alleged that the accused was a party to "2 or more" non-reportable cash transactions and that having regard to the manner and form in which those transactions were conducted, it would be reasonable to conclude that he conducted the transactions in that manner and form for the dominant purpose stated in s31(1)(b). (2) The application by the Appellant as to the form of the indictment 742 On 24 September 2001, the Appellant sought an order that the indictment be amended pursuant to s64 of the Criminal Procedure Act by deleting the words "2 or more" in each of Counts 2 and 3 and that the Crown be required to specify and furnish particulars of, the alleged transactions the subject of the counts. 743 The application was heard and determined by the trial judge on 9 October 2001. The application was dismissed. The trial judge noted in doing so that he rejected the submission that all of the transactions alleged by the Crown in Count 2 or Count 3 should "stand or fall together" (Judgment, paragraph [39]). 744 The trial judge referred to the judgment of Studdert J in the Court of Criminal Appeal in the first trial in relation to the grounds of appeal against the convictions on Counts 2 and 3 with which (subject to qualifications not relevant to Counts 2 and 3), the Chief Justice, at [365]) and Dowd J, at [485] agreed. James J observed that the judgment of Studdert J explicitly established: (a) In a charge of an offence against s31(1) of the Financial Transaction Reports Act , the Crown can allege that the accused was a party to more than two transactions. (b) If the Crown alleges that the accused was a party to more than two transactions, it is not necessary for the Crown to prove that s31(1)(a) is satisfied in respect of all the transactions alleged. It was sufficient for the Crown to prove that s31(1)(a) was satisfied in respect of at least two of the transactions alleged, provided that the jury are unanimous that s31(1)(a) is satisfied in respect of the same two transactions. 745 In his judgment of 9 October 2001 at [37] James J stated: "In my opinion, the judgment of Studdert J also clearly establishes that, where the Crown has alleged that the accused was a party to more than two transactions and the Crown has proved that s31(1)(a) is satisfied in respect of more than two of the transactions (I will refer to these transactions as 'the transactions alleged by the Crown and proved to satisfy s31(1)(a)'), it is not necessary for the Crown to prove that s31(1)(b) is satisfied in respect of all the transactions alleged by the Crown and proved to satisfy s31(1)(a). It is sufficient for the Crown to prove that s31(1)(b) is satisfied in respect of at least two of the transactions alleged by the Crown and proved to satisfy s31(1)(a), provided that the jury are unanimous that s31(1)(b) is satisfied in respect of the same two of the transactions alleged by the Crown and proved to satisfy s31(1)(b)." 746 In the Appellant's written submissions in reply (pp.118-119), the Appellant submitted that the judgment of Studdert J in Regina v Hannes (supra) only addressed one issue – an absence of a direction requiring the jury to be unanimous about the transactions which satisfied the offence. However, the trial judge was correct to say that Studdert J's judgment established the two propositions set out in paragraph [744] above. 747 The analysis of James J in the judgment of 9 October 2001, drawing as he did upon the abovementioned judgment of Studdert J in the Court of Criminal Appeal, was plainly correct in law. The submission made by the applicant that the proper question for the jury "was whether the elements of the offence were satisfied for all the transactions particularised in the indictment" is, in our opinion, incorrect. Consistently with the approach taken in Montgomery v Stewart (1967) 116 CLR 220 per Barwick CJ at 223, the correct approach requires that a proper construction of the language of s31(1) of the FTR Act be undertaken. In that respect, the following are noted: • Section 31 is aimed at specific conduct that is evasive in nature; • Section 31 is intended to prevent evasion of the reporting obligations imposed on a cash dealer, the evasion being achieved by conducting a transaction with a view to avoiding the occurrence of a significant cash transaction. • The provisions of s31(1) are not expressed or constructed to operate so as to create a separate offence in respect of each transaction. The section creates a single offence in respect of "2 or more non-reportable cash transactions" . (3) Objection 1 – The indictment does not charge an offence created by s31 of the Act 748 The Appellant's submission that s31(1) applied to a "defined and fixed combination of transactions" is not accurate. The reference in s31(1)(a) to "… a party to 2 or more non-reportable cash transactions" is neither a defined combination of transactions nor does it refer directly or implicitly to a "fixed combination". To the contrary, the expression "2 or more" is a broad open-ended one with "2" transactions being specified as the minimum number. In other words, the section does not operate or apply to a fixed number or to a closed class of transactions. It applies in the case of any of two or more transactions. 749 The further submission that the offence "can only exist" if the matters referred to in s31(1)(b)(B), (C) and (E) "can be specified" is wrong. Section 31(1)(b) states with respect to the question of "the manner and form" in which the transactions were conducted, that such is not limited to the matters specified in (A), (B), (C), (D) and (E) set out in s31(1)(b)(i). 750 Section 31(1) creates a single offence constituted by "2 or more non-reportable cash transactions". In the event that the Crown established two such transactions entered into in contravention of s31(1), the offence is made out. In the event that the jury could be satisfied beyond reasonable doubt that two or more transactions contravened the section, then the offence was established. 751 Consequently, the submission that the indictment sought to charge the Appellant with an offence where the number of transactions "is not specified and fixed and definite" and "the matters in s31(1)(b)(i)(A)-(E) cannot be specified" is without validity. The section by its plain terms, creates an offence with respect to two, three or any greater number of transactions. It is neither "limited", "fixed" or "definite" (in the sense of a finite number) in terms of the "transactions" to which it refers. The submission entitled "Objection 1 – the indictment does not charge an offence created by s31 of the Act" is without foundation and is rejected. (4) Objection 2 – Permitted the jury to convict if there was a reasonable doubt Hannes acquired a cheque 752 This submission proceeds upon the basis or assumption that the Crown had to satisfy the jury beyond reasonable doubt not that two or more cheques were drawn by the Appellant, but that, unless they were so satisfied that Hannes had drawn all of the cheques, the Crown had failed to prove its case. The nature of the offence as discussed above, does not embrace all or a fixed number of transactions but in concept and application exists and operates where the jury are satisfied to the criminal standard that two, three or more (but not all) cheques were drawn by the Appellant. (5) Objection 3 – Permitted the jury to convict on a basis inconsistent with the Crown case 753 Again, the Appellant's submissions wrongly pre-suppose that the jury were not entitled to convict if some but not all transactions were motivated by a purpose of avoiding the reporting requirements. The submission proceeds upon the misconception that s31(1) requires proof of more than two transactions. The jury once satisfied that at least two transactions had that purpose, was entitled to act on that basis in finding against the Appellant. They were not required by the section to determine that issue with respect to every transaction specified in the range of particularised transactions. (6) Objection 4 – Misdirected the jury on way they should consider the evidence 754 The direction given to the jury required unanimity in relation to the same two or more transactions. The direction was aimed at ensuring the members of the jury understood that there had to be an accord between them in relation to the same transactions when determining their "purpose". Such a direction worked to the Appellant's advantage and was plainly in conformity with the views expressed by Studdert J in R v Hannes (supra). 755 The Appellant's submissions seek to advance the contention that the directions given to ensure jury unanimity on Counts 2 and 3 went too far or had the effect of requiring the members of the jury to discard findings in the search for a combination of transactions which could satisfy all the elements of the offences. There were two principal points advanced in this respect. First, that it was impermissible "to direct a juror" that in assessing the issue under s31(1)(b) as to "manner and form" and prohibited purpose he or she "is required to ignore one of the particularised transactions he believes the appellant undertook, and leave it out of 'account', only because another juror has a reasonable doubt about it" (Appellant's primary submissions, p.189). 756 Second, the Appellant submitted that, if the jury thought it was not reasonable to conclude the transactions they unanimously held were undertaken by the Appellant, were done for a prohibited purpose, they were to disregard one or more of those transactions and search for another combination which would satisfy s31(1). They were, it was contended, thereby permitted to ignore transactions which they unanimously believed the Appellant undertook "if they got in the way of an adverse finding in relation to the second element". It was argued that the directions effectively required the jury to sever transactions or "salami-slice" the evidence up, "disregarding evidence which got in the way of adverse findings" (Appellant's submissions, p.189) in finding a combination that satisfied the section. 757 Implicit in these arguments is an assumption that the jury were required to take all the transactions as inseparable and essentially all linked to each other so that there could be no "severance" or "slicing" of the evidence relating to each and all of them. The Appellant's argument essentially seeks to have the individual transactions regarded as part of a single entity much like the head and limbs and other parts that constitute the human body as a single entity. Whilst it is possible that every one of the transactions may not have been the subject of an accord between the jury members, the transactions each stood on their own feet and were not necessarily or essentially inextricably linked to one another requiring an "all or nothing" approach by the jury. The fact that the jury could unanimously agree that two transactions, out of a larger number, were undertaken for the prohibited purpose was sufficient to establish an offence under s31 regardless of whether one or more jurors were not so satisfied in relation to any one or more of the balance of the transactions. This, of course, does not overlook the fact that the Crown was seeking to persuade the jury that "Counts 2 and 3 in fact evidenced … single composite activities … or transactions … broken up into smaller transactions below the reporting threshold to avoid the reporting requirements of the Act" (Crown's written submissions, Part B at paragraph [1597]. Objection 4 should be rejected. (7) Objection 5 – Counts 2 and 3 offend the rule against duplicity 758 The Appellant submitted that Counts 2 and 3 breach the rule against patent duplicity or latent duplicity. The Appellant contended that the ground for the submission was that: "There is patent duplicity because the indictment speaks of 'two or more' transactions while particularising 6 and 10 transactions for counts 2 and 3 respectively. There are 3,628,800 possible offences in count 3 (ie. combinations of two or more) and 720 in count 2" (Appellant's primary submissions, p.190). 759 The submission asserted that the indictment placed before the jury the terms of the legislation and a smorgasbord of possible "non-reportable transactions". The Appellant further submitted: "The effect of the judge's directions was to ask the jury to retire to the jury room and determine which of those transactions the appellant undertook, and then to consider whether they could agree any combination of all or some (of) them which might satisfy s31(1)(b), disregarding as they went any transactions which they all could not agree were done by the appellant, or which prevented an adverse finding under s31(1)(b) …" (Appellant's primary submissions, p.190). 760 It is clear when dealing with statutory offences that for the purpose of assessing a contention of duplicity, the foundation and starting point is to be found in the provisions of the relevant statute. See, for example Montgomery v Stewart (1967) 116 CLR 220, 223 (Barwick CJ) and Walsh v Tattersall (1996) 188 CLR 77, 100-101 (Kirby, J). 761 As in the former of these two cases, so here, s31(1) does not create separate offences for individual transactions. The offence created by the section is framed and based upon multiples of non-reportable cash transactions, namely, "2 or more". In Montgomery (supra), a single offence was created by s43 of the Companies Act 1958 (Vic) but the breach alleged was supported by "particulars of untrue statements" which identified a number of statements in a prospectus which were said to be untrue. 762 The situation in Johnson v Miller (1937) 59 CLR 467 was quite different. Section 209 of the Licensing Act 1932 (SA) provided that a licensee out of whose premises any person was seen coming during a Sunday, except between certain hours, was guilty of an offence unless certain specified circumstances were established. There was held to be "latent ambiguity". The provisions of s209 created a substantive offence in respect of each person upon licensed premises during certain prohibited hours. The particulars of complaint stated that 30 men were seen coming out of the premises in question during a specified period. The identity of only four men could be established. The latent ambiguity could only have been removed by an amendment which selected one instance or person to the exclusion of others. The complaint was bad for duplicity for it was based upon a number of sets of facts, each capable of amounting to a separate offence. Similarly in Walsh v Tattersall (supra), Kirby J held that offences in respect of individual payments had to be charged individually. That conclusion stemmed from the statutory provisions that created the offence. The statute there was concerned with individual payments. 763 The Crown contended that all transactions relevant to Counts 2 and 3 were undertaken by the Appellant. It was certainly open to the jury to so conclude. But it was not, for the purposes of those counts, necessary that they do so. The offences alleged under s31(1) were equally established if the jury concluded only "2" or some other number amongst the total of the transactions were undertaken by the Appellant which met the requirements of s31(1)(a) and (b). The fact that it is not known whether the jury determined two of the 16 transactions or all 16 transactions were entered into in contravention of s31(1) does not mean that it was then asked to "frame the charge against the Appellant" as claimed by the Appellant. The jury were called upon to determine the facts in relation to Counts 2 and 3 within the statutory framework of s31 which, in part, involved a plurality of transactions ("two or more") giving rise to a single offence. The Appellant's ground of appeal based on duplicity should be dismissed. 5. Combination of charges (Ground 27) 764 This ground raises a question as to the trial judge's direction in relation to the fourth element of the offence in Counts 2 and 3 (knowledge of the reporting requirements). That direction was to the effect that the jury could, in relation to the fourth element, have regard to the transactions on 9 September particularised in the other count and the $9,000 cheque obtained on 6 September which was not particularised in either count (in all 16 transactions under $10,000). In other words, it was asserted that the jury were erroneously directed that they could have regard to all 16 transactions under $10,000 on each of Counts 2 and 3. 765 Alternatively, it was contended that the directions as to the use which could be made of those 16 transactions on each count were inadequate to avoid a miscarriage of justice. 766 The fourth element was identified in the trial judge's directions, namely, that at the time of conducting the transactions, the accused knew that a transaction involving a physical transfer of currency of not less than $10,000 in value must, by law, be reported to a Government agency, but that a transaction involving a physical transfer of currency of less than $10,000 in value did not have to be reported to a Government agency. 767 The trial judge's directions on this aspect are to be found at pp.147.10 to 148.5 and 172.1 to 172.3 of the summing up given on 3 September 2002. 768 In relation to the fourth element, it is noted that it was not necessary for the Crown to prove that the accused knew that what he was doing was illegal before an offence is committed. It suffices to prove knowledge of the circumstances which render the relevant event criminal as distinct from proof of knowledge of the illegality of the act: Doyle CJ in Question of Law Reserved (supra), who also observed (at p.7) that s31 is aimed at specific conduct that is evasive in nature rather than carelessness or inadvertence: "evasion implies an element of knowledge." 769 A central fact to be proved in relation to the fourth element was that the Appellant knew of the reporting requirements. The Crown relied upon the terms of the Significant Cash Transactions Report signed by the Appellant with respect to a transaction involving $20,000, and his changed approach thereafter so that all further transactions involved amounts under $10,000. The Crown told the jury on that element that they could have regard to the fact that there were 16 transactions under $10,000 all performed after the filling out of the Significant Cash Transactions Report, the change in modus operandi and the Appellant's admissions (at p.72, lines 2 to 4 of the record of interview) as to his awareness of the reporting requirements. 770 At the end of an exchange with counsel about the matter, the trial judge stated to counsel (as recorded at p.147 of the summing up; AB 4367): "It seems to me that, if the Crown has to prove at the time of conducting transactions on 9 September the accused knew that a transaction involving a physical transfer of currency of not less than $10,000.00 in value had to be reported to a Government agency, but that a transaction involving a physical transfer of currency of less than $10,000.00 in value did not have to be reported, the Crown can rely on any transaction involving a physical transfer of currency entered into by the accused on that day." 771 The transcript then refers to the comment by the Crown Prosecutor: "I am always relying on the change of modus operandi regarding the $20,000.00." 772 The Appellant's objection to the direction confuses the evidentiary significance of the 16 transactions with what the Appellant terms "a merging of the counts" which, he claims, "made a mockery of the judge's directions to the jury to consider the counts separately". However, the Crown was entitled to adduce any admissible evidence to prove the relevant state of mind issue relevant to the fourth element, namely, knowledge held by the Appellant of the matter (or element) described in paragraph [708] above. There was no rule of law or statutory provision which prevented the jury from being told that it could rely upon the other transactions having regard to the amounts and dates of them and other evidence, such as admissions made by the Appellant in his interview with investigators and the Appellant having seen and signed the Significant Cash Transaction Report. The fourth element was a reasonably straightforward issue of fact to be proved by any available relevant and otherwise admissible evidence. 773 Ground 27 should be dismissed. (5) Change in Crown case on Count 2 (Ground 28) 774 The ground asserts that, by reason of certain remarks by the trial judge as identified in the Appellant's written submissions (p.195), there was a fundamental shift in the Crown case on Count 2. 775 Three "new arguments" said to have been put to the jury by the trial judge at the close of his summing up are extracted in the written submissions as [A], [B] and [C]. Each of these are reproduced below (AB 4585). "[A] … 'The two earlier withdrawals might have been $10,000 because the accused already had it in mind to make a series of withdrawals rather than one very large withdrawal, but at the time of making the two earlier withdrawals of $10,000 was not aware of the reporting requirement.'" 776 The Appellant then extracted a statement which he said was the judge's explanation of this comment, but the Crown says that the statement was not made in the presence of the jury (AB 4598): "I understood the Crown to be suggesting that … on Friday the 6th he started off. 'I will make $10,000 withdrawals'. He makes two $10,000 withdrawals and then on the third withdrawal, on the Crown case, he discovers that these things have to be reported." The other passages identified read as follows (AB 4584-AB 4885): [B] "… 'In response to the argument, if he became aware of the requirement, why didn't he seek to withdraw more than $20,000, an argument for the Crown is that $100,000 withdrawal might seem much more suspicious than a withdrawal of $20,000." [C] … 'It is put to you on behalf of the Crown that the accused would not necessarily have known that the earlier transactions had in fact been reported' …" 777 In analysing whether or not these remarks by the trial judge caused a miscarriage of justice in relation to Count 2 as the Appellant contends, it is necessary to understand the basis upon which the submission is made. 778 The remarks or comments made by the trial judge as set out above, were made in the context of his summing up when referring to submissions made on behalf of both parties in relation to the transactions that took place before the transactions particularised on Counts 2 and 3. 779 The comment [A] set out above, the Crown says, was in accordance with the case he put to the jury. On this point, the Crown accordingly takes issue with the contention that comment [A] represented a fundamental shift in the Crown case. The trial judge did not put an argument that the Appellant "never intended to withdraw more than $10,000 even before he learned of the reporting requirements" (emphasis added). 780 When one examines the passage of the summing up at p.365, it is clear that in the context of outlining the various arguments put by the Crown, the trial judge simply put the argument that the two earlier withdrawals "might have been" $10,000 for the reasons stated in [A]. The Appellant overstates the position when he says that this was "the new case put by the judge". It is simply not correct to suggest that the Crown case on the second count was put by the trial judge "on a fundamentally different basis" in his summing up, in particular, in comments he made on the evidence and arguments. 781 The second and third points taken in relation to the judge's comments in [A] suffer from the same defect, namely, that they proceed upon the incorrect basis that the judge's summing up put the Crown case on a fundamentally different basis. 782 The arguments which the Appellant advances in relation to the judge's comments in [A] and [C] must bring into account the following points: • It was in accordance with the Crown case that the Appellant developed and acted on a plan to withdraw amounts from different banks before he became aware of the reporting requirements. The Crown suggested this was to avoid suspicion or to assist in ensuring anonymity for the purposes of the insider trading charge. • The multiple withdrawals of cash that occurred both before and after the Appellant is said to have become aware of the reporting requirements is both consistent with the plan which the Appellant started with, namely, to undertake multiple cash withdrawals instead of withdrawing in one lump sum and the fact, as the Crown contended, having obtained knowledge of the reporting requirement, the amount of the cash withdrawals were dropped to amounts less than $10,000. • Accordingly, the fact that there were three pre-charge transactions of $10,000 or more is not of itself inconsistent with a change of approach by the Appellant once he became aware of the reporting requirement by continuing his plan for multiple cash withdrawals but thereafter ensuring that they were all below $10,000, thus avoiding the reporting requirements. 783 The Crown's submission is plainly correct: "The fact that the ultimate purpose of avoiding the reporting requirements was to ensure anonymity and to distance the appellant from the insider trading offence (AB 842/49) does not stand in the way of the conclusion that the Appellant conducted the relevant transactions in the manner and form that he did with the requisite dominant purpose (cf Leask [1999] NSWCCA 33 at [129])." 784 Finally, the judge's comment in [C] referred only to the fact that the Appellant would not necessarily have possessed knowledge that the earlier transactions had in fact been reported. The Crown had argued that the relevant knowledge in the Appellant as to reporting requirements occurred during the course of the $20,000 transaction which, it argued, the Appellant would then have become aware of the reporting requirements as it affected the $20,000 transaction and the two earlier withdrawals. 785 Accordingly there is no basis for the submission that, if the argument in [C] was accepted, the Appellant should have been acquitted. 7. Uses of Count 1 evidence on the second element of Counts 2 and 3 (Ground 29) 786 The Appellant contends that the trial judge's directions were in error in relation to the use to which evidence on Count 1 relating to insider trading could be put in relation to the second element of Counts 2 and 3. 787 In a judgment delivered on 9 October 2001 the trial judge dealt with an application made on behalf of the Appellant for separate trials of Count 1 of the indictment and Counts 2 and 3 of the indictment. 788 In that judgment (at [55]), the trial judge stated that a matter to which regard must be had in determining whether an accused committed an offence under s31(1) is any explanation made by the accused as to the manner or form in which the transactions were conducted where the accused had made an explanation and the explanation is, on the face of it, exculpatory. The Crown should be permitted to adduce evidence for the purpose of showing that the explanation made by the accused is false and should be rejected by the jury. 789 The trial judge (at [56]) went on to state that counsel for the accused in fact conceded that some evidence would be admissible as tending to show that the explanation made by the accused was false. 790 At [57] of the judgment, the trial judge stated: "The Crown wishes to adduce evidence for the purpose of showing that the explanation made by the accused should not be accepted. It seems to me that at least large amounts of evidence relating to the insider trading offence would be relevant and admissible as tending to show that the explanation made by the accused as to the manner or form in which the cash transactions were conducted, including that there was an agreement between the accused and some other person, should not be accepted." (emphasis added) 791 At [58], the trial judge observed that, as to the element of the offences charged, namely that the accused was party to two or more non-reportable cash transactions, there having been no formal admissions made by the Appellant that he had made all the payments for the purchase of the bank cheques, evidence "… relating to the insider trading offence which was relevant to proving this element of the reporting offences would be admissible in a trial of the reporting offences". 792 At [62] he concluded: "62. I have concluded that all three counts were properly joined in the same indictment. As was conceded by counsel for the accused, all the evidence which would be admissible in trials of the reporting offences would be admissible in a trial of the insider trading offence. At least substantial parts of the evidence which would be admissible in a trial of the insider trading offence would be admissible in trials of the reporting offences to disprove an explanation made by the accused as to the manner or form in which the non-reportable cash transactions were conducted and to prove that the accused was a party to the non-reportable cash transactions alleged . If there is some evidence admissible in a trial of the insider trading offence which is not admissible in the trials of the reporting offences, I will be able to give the jury appropriate directions." (emphasis added) 793 As the Crown has observed in its submissions (par [1618]), in determining whether or not a person conducted two or more transactions for the purpose of avoiding the reporting requirements of the FTR Act, the jury were required to have regard to any explanation made by the Appellant in terms of s31(1)(b)(ii). Plainly, any evidence relevant to support or rebut such explanations must be admissible on the ultimate question of purpose. 794 The Appellant had proffered an explanation in his interview in relation to the transactions which raised the question of the involvement of a partner and an investment syndicate. The Crown had contended that the evidence relevant to the insider trading offence rebutted that explanation. 795 The Appellant's written submissions (par [19.5.2]) stated that the judge ruled that the evidence on Count 1 relating to insider trading was relevant to all the elements of Counts 2 and 3 except the second element. As the Crown has observed in its submissions (par [1620]), the trial judge did not, in fact, rule in that respect as the Appellant contends. The ruling made on the question was that substantial parts of the evidence admissible on the insider trading offence would be admissible, in relation to the second element in Counts 2 and 3, to disprove the explanation which the Appellant had given to investigators (and to an extent to Mr Moss) as to the manner or form in which the transactions were conducted (that being a part of this second element) and also to prove that the Appellant was a party to non-reportable cash transactions (the first element). 796 The question raised by this ground of appeal is whether it was incumbent upon the trial judge to go further than he did in instructing or directing the jury in relation to the use of evidence in relation to the insider trading count (Count 1) and in relation to the second element of Counts 2 and 3. 797 The essential point made by the Appellant is that the jury were not entitled to use the evidence in relation to insider trading to "actually assess, for the purpose of the second element of Counts 2 and 3, whether it was reasonable to conclude the Appellant conducted those transactions in that manner and form for the dominant purpose of avoiding the reporting requirements …" (written submissions paragraph [19.5.3]). 798 The question is not whether the directions were adequate to direct the jury as to the use of the evidence in relation to Count 1 concerning both the first element of Counts 2 and 3 and the issue of the "explanation" in the second elements of Counts 2 and 3, but whether the jury was not to use the evidence (on the basis that they rejected the Appellant's explanation) in deciding the issue that constitutes the second element of Counts 2 and 3. 799 The Appellant has submitted that "… it is fanciful to suggest that the judge's directions were adequate to convey to the jury that that is the way they should consider the Crown case" (written submissions [19/5.4]). 800 The Appellant has referred to the trial judge's refusal to make further directions in response to an application for re-direction on the basis that the judge's explanations to the jury were inadequate to ensure that they did not reason impermissibly in considering Counts 2 and 3. 801 Appendix 4 to the Appellant's written submissions contain a copy of the document "defence submission in relation to summing up". Paragraph [16] of that document, under the heading "Counts 2 and 3" , stated: "16. Your Honour should direct the jury that in relation to the second element of the offence (manner and form), evidence other than evidence of the manner and form of the transactions is not relevant except in considering the truthfulness of the explanation of 'manner and form' in the interview." 802 In the summing up, the trial judge, in relation to the second element, outlined the evidence in relation to the explanation given by the accused as to the manner and form in which the transactions were conducted (AB 4383 to AB 4386). 803 At AB 4386, the trial judge emphasised that they must have regard to the explanation or explanations made by the accused. He then stated: "In having regard to the explanation or explanations made by the accused, you can take into account any evidence which might tend to support the explanation or explanations or which might tend to rebut any explanation made by the accused, that is, which might tend to show that an explanation made by the accused was untrue." 804 The trial judge specifically adverted to the use to which evidence could be put in relation to the offences alleged. At AB 4393-AB 4394, the trial judge stated: "However, the same evidence can be relevant to more than one count. The Crown says that the conduct in which it alleges the accused engaged in making the withdrawals and in obtaining the bank cheques is relevant, and importantly relevant, to a number of the elements of the offence charged in the first count. Likewise, there is much evidence in the case which is relevant both to the offence charged in the first count and to the existence or rebuttal of the explanation made by the accused as to the manner and form in which the bank withdrawals or the obtaining of the bank cheques were conducted …" (emphasis added) 805 By grounds 2 and 3 the Appellant asserted that, independently of the matters dealt with in the more precise grounds attacking the verdicts on counts 2 and 3 or cumulatively thereto, the verdicts should be set aside as unreasonable or as unable to be supported by the evidence. The question for this Court is whether on the whole of the evidence it was open for the jury to be satisfied beyond reasonable doubt that the Appellant was guilty: M v The Queen (1994) 181 CLR 487. We have discussed the evidence relevant to those more precise grounds and there is no need to repeat that discussion. Taking the evidence as a whole the Court is left with no real doubt that the Appellant conducted the transactions constituted by the withdrawals and the purchases of bank cheques and that in view of the matters set out in s 31(1)(b) it would be reasonable to conclude that he did so for the sole or dominant purpose of ensuring or attempting to ensure that the currency involved was transferred in a way that would not give rise to a significant cash transaction or would give rise to exempt cash transactions. Accordingly, grounds 2 and 3 have not been made good. 806 For the above stated reasons, we are of the opinion that the appeal should be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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