Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Milne v R [2012] NSWCCA 24 Hearing dates: 15 and 16 August 2011 Decision date: 02 March 2012 Before: Whealy JA Latham J Harrison J Decision: 1. Appeal against conviction is dismissed. 2. Leave to appeal against sentence is granted. 3. Appeal against sentence is dismissed. Catchwords: CRIMINAL LAW - APPEAL AGAINST CONVICTION - money laundering - (s 400.3(1) Criminal Code (Cth)) - dishonestly obtain gain from Commonwealth (s 135.1(1) Criminal Code (Cth)) - money laundering involving creation and misuse of offshore structure - dishonest obtaining offence involving deception of accountants and lodgement of false tax return - failure to declare capital gain - share swap designed to hide capital gain - transfer of legal ownership of shares with retention of the beneficial ownership - whether there was evidence to support the first charge - whether trial judge correctly refused verdict by direction - whether the shares involved in the transaction were intended by the offender to facilitate the commission of an offence - meaning of "used to facilitate" - whether facts capable of constituting money laundering offence - whether trial judge failed to give essential directions - whether a miscarriage of justice occurred - whether verdicts were unreasonable - whether capital gains event occurred in relevant financial year or later. CRIMINAL LAW - SENTENCE APPEAL - not guilty plea - grossly understated capital gain in false tax return - separate criminality in each of two related offences - loss to revenue of at least $1.9 million in capital gains tax - assessment of overlapping criminality - whether sentencing judge erred in assessment of criminality - whether totality principles correctly applied - whether sentences imposed reflected double punishment - substantial aspects of criminality in each offence - need for substantial sentences for each offence - importance of general and special deterrence in revenue avoidance offences - whether sentences were appropriately accumulated - whether good character overlooked - whether facilitation of the course of justice overlooked - whether sentences were manifestly excessive. Legislation Cited: - Crimes Act 1914 (Cth) - s 16A(1) - Criminal Appeal Act 1912 (NSW) - s 6 - Criminal Code Act 1995 (Cth) - ss 134.2, 135.1(1), 400.1, 400.3(1), 400.13, Div 400 of Part 10.2 of Chap 10 - Evidence Act 1995 (NSW) - s 184 - Foreign Evidence Act 1994 (Cth) - Income Tax Assessment Act 1997 (Cth) - ss 104-110 - Proceeds of Crimes Act 1987 (Cth) - ss 81, 82 Cases Cited: - Ansari v R [2010] HCA 18; 266 ALR 446 - Bugmy v R [1990] HCA 18 169 CLR 525 - Cahyadi v The Queen (2007) 168 A Crim R 41 - DAO v R [2011] NSWCCA 63 - Deakin v R [1984] HCA 31; 58 ALJR 367 - Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145 - Doney v R (1990) 171 CLR 207 - Draper v Police [2009] SASC 264 - Hili v R; Jones v R [2010] HCA 45; (2010) 272 ALR 465 - House v R (1936) 55 CLR 499 - M v R (1994) 181 CLR 487 - Markarian v R [2005] HCA 25; (2005) 215 ALR 213 - Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463 - Nudd v R (2006) 80 ALJR 614 - Pearce v R [1998] HCA 57; 194 CLR 610 - Power v The Queen [1974] HCA 26; 131 CLR 623 - R v Adler [2005] NSWSC 274 - R v Ansari [2007] NSWCCA 204; 70 NSWLR 89 - R v Foster [2008] QCA 90; (2009) 1 QdR 53 - R v Gallagher (1991) 23 NSWLR 220 - R v Guo; R v Quian [2010] NSWCCA 170 - R v Hargraves and Stoten [2010] QCA 328 - R v Jones; R v Hili [2010] NSWCCA 108 - R v Lodhi [2006] NSWSC 691 - R v R (1989) 44 A Crim R 404 - R v Rivkin [2004] NSWCCA 7 - R v Wheatley [2007] VCC 718; (2007) 67 ATR 531 - R v Williams [2005] NSWSC 315; 152 A Crim R 548 - R v Wing Cheong Li [2010] NSWCCA 125 - Schembri v R [2010] NSWCCA 149 - SKA v R [2011] HCA 13; 85 ALJR 571 - Sunshine Worldwide Holdings Pty Limited, Re [2005] NSWSC 117; 62 NSWLR 400 - Thorne v R [2009] NSWCCA 294 - TKWJ v The Queen (2002) 2012 CLR 124 - Weiss v The Queen (2005) 224 CLR 300 - Wong v The Queen (2001) 207 CLR 584 Category: Principal judgment Parties: Michael John Milne (Appellant) Crown (Respondent) Representation: Counsel: L.P. Robberds QC, M.A. Polden (Appellant) P. Hastings QC, D. Jordan (Crown) Solicitors: Johnson Winter & Slattery (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2008/054586 2008/269487 Decision under appeal Jurisdiction: 9111 Before: Johnson J File Number(s): 2008/054586 2008/269487 Judgment 1THE COURT : In November 2010, the appellant was found guilty by a jury in the Supreme Court on one count of "money laundering", contrary to s 400.3(1) of the Criminal Code Act 1995 (Cth) ("the Code"), and one count of doing an act with the intention of dishonestly obtaining a gain from the Commonwealth, contrary to s 135.1(1) of the Code. 2On 17 December 2010, Johnson J (the trial judge) imposed the following sentences on the appellant: (a) In relation to the conviction for money laundering, contrary to s 400.3(1) of the Code, the appellant was sentenced to imprisonment for a period of 7 years, to date from 17 December 2010 and to expire on 16 December 2017. (b) In relation to the conviction of doing an act with the intention of dishonestly obtaining a gain from the Commonwealth, contrary to s 135.1(1) of the Code, the appellant was sentenced to imprisonment for a period of 3 years and 6 months, to date from 17 December 2015 and to expire on 16 June 2019. (c) In relation to both sentences, his Honour fixed a non-parole period of 4 years and 9 months to date from 17 December 2010 and to expire on 16 September 2015. 3By Notice of Appeal filed on 6 April 2011, the appellant appeals against both convictions and seeks leave to appeal against sentence. For convenience, we shall describe him as "the appellant" in relation to both the conviction appeal and the sentence appeal. An overview 4It will be necessary in due course to state with some particularity the facts relating to the transactions and events underlining the jury's verdict and the trial judge's remarks on sentence. For the moment, however, we shall briefly state the nature of the case. Essentially, the Crown case was that the appellant had acquired through his private company, Barat Advisory Pty Ltd, a significant parcel of shares in a company, Admerex Limited ("Admerex"), at negligible cost. Thereafter, he took advice and proceeded to establish tax-deferral arrangements involving overseas entities through which, ultimately, the shares were disposed. The short term feature of the arrangements was the necessity to pass the legal and beneficial ownership to the overseas entities. A critical dealing in the shares was the later "swap" of some 48 million Admerex shares for 1 million Temenos shares. The Crown alleged that the appellant, prior to the swap, had in a number of respects deliberately and significantly departed from the terms of the tax advice he had been given and the structure which had been established by his lawyers. He did so with the ultimate intention of avoiding the payment of capital gains tax liabilities that might later arise. In particular, it was the Crown case that Barat Advisory Pty Ltd retained the beneficial ownership of the shares. When the opportunity ultimately arose to dispose of the Admerex shares, once again, the appellant did so, contrary to the terms of the tax advice and with the same intention of avoiding Capital Gains Tax (CGT). The structure of, and the dealings involved in, these transactions were complex. Relevant transactions occurred both in Australia and overseas between January 2003 and September 2005. It was the Crown case that the CGT liability arose in the 2005 financial year. The Admerex shares, on the Crown case, were critical to the exercise. The appellant's activities relating to the shares were critical to an assessment of the appellant's intentions. These circumstances constituted the money laundering offence. 5The appellant had a number of dealings with his accountants in the process of producing the accounts and income tax return for Barat Advisory Pty Ltd. These dealings traversed the period between May 2005 and November 2006. The 2005 tax return was lodged on or about 13 November 2006. The Crown case was that the appellant, in this tax return, intentionally omitted the true CGT position, with the consequence that tax was avoided in an amount somewhere between $1.9 million and $2.4 million. Further, it was alleged the appellant had deceived and misled his accountants in a number of respects. These were the circumstances relating to the second charge in the indictment. The Indictment 6The Indictment contained the following counts: (a) Count 1 - Between about 30 April 2004 and about 30 September 2005 at Sydney in the state of New South Wales and elsewhere [the appellant] dealt with property, intending that the property, namely a parcel of shares, would become an instrument of crime, in that it would be used to facilitate the commission of an offence by Barat Advisory Pty Ltd and at the time of the dealing, the value of the property was $1 million or more (s 400.3(1) Criminal Code Act 1995 (Cth) - maximum penalty - 25 years imprisonment); (b) Count 2 - On or about 13 November 2006 at Sydney in the state of New South Wales [the appellant] did, with the intention of dishonestly obtaining a gain from the Commonwealth, caused to be lodged an income tax return in the name of Barat Advisory Pty Ltd for the year ending 30 June 2005 containing false information, namely that the net capital gain from the sale of the shares in Admerex was $4,597 (s 135.1(1) Criminal Code Act 1995 (Cth) - maximum penalty - 5 years imprisonment). Crown Case Statement 7The Crown Case Statement set out, in some considerable detail, the factual matters that it asserted would be proved at trial. In addition, it stated succinctly the way in which it would suggest those facts should be applied to each of the counts in the Indictment. As to the money laundering count, the Crown Case Statement (paragraphs 165-172) (with footnotes and evidentiary references omitted) stated: 165. Count 1 avers that, contrary to section 400.3(1) of the Criminal Code, [the appellant] between about 30 April 2004 and about 30 September 2005 at Sydney in the state of New South Wales and elsewhere dealt with property, intending that the property, namely a parcel of shares, would become an instrument of crime, in that it would be used to facilitate the commission of an offence by Barat Advisory Pty Ltd and at the time of the dealing, the value of the property was $1 million or more. [ The appellant] dealt with property 166. On or around 3 February [the appellant] dealt with property, namely the 48 million Admerex shares, when on behalf of Barat Advisory he disposed of those shares by exchanging them for 1 million Temenos shares. Intending that the property would become an instrument of crime 167. The Admerex shares remained under the beneficial ownership and effective control of Barat Advisory through the accused, after they were purportedly transferred into the Stichting Group companies on or around 11 June 2004. At the time of that purported transfer, and subsequently, [the appellant] intended to use the Stichting groups to conceal the disposal of the Admerex shares, and the proceeds of such disposal, in order to avoid the payment by Barat Advisory of Capital Gains Tax. 168. When the 48 million Admerex shares were disposed of on 3 February 2005, by exchanging them for 1 million Temenos shares, [the appellant] intended to avoid the payment by Barat Advisory of tax on the capital gain which was derived as a result of that disposal. For that purpose, [the appellant] used the Stichting groups to conceal the disposal of the 48 million Admerex shares and the proceeds of that disposal. 169. As such, [the appellant] intended that the 48 million Admerex shares would be used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as a Commonwealth indictable offence, namely the obtaining by Barat Advisory of a financial advantage by deception, contrary to section 134.2 of the Criminal Code. 170. On this basis [the appellant] intended that the 48 million Admerex shares would become an instrument of crime. At the time of the dealing the value of the property was $1 million or more 171. When the 48 million Admerex shares were disposed of on 3 February 2005, by exchanging them for 1 million Temenos shares, they were valued on the Australian Stock Exchange at between $8.4 million and $9.120 million. 172. Alternatively, when they were disposed of on 3 February 2005, the 48 million Admerex shares were valued at between $8.480 million and $9,494,012.30 being the value of the 1 million Temenos shares for which they were exchanged. 8In relation to Count 2, the Crown sought to apply the facts in the Crown Case Statement to the elements of the dishonest obtaining offence as follows: 174. On or about 13 November 2006 [the appellant] caused to be lodged an income tax return in the name of Barat Advisory for the financial year ending 30 June 2005. 175. That tax return contained false information, namely that the net capital gain in the financial year ended 30 June 2005 when the sale of share in Admerex was $4,597. This information was false because Barat Advisory derived a net capital gain of between $6.560 million and $7.574 million from the disposal of the 48 million Admerex shares on or around 3 February 2005. With the intention of dishonestly obtaining a gain from the Commonwealth 176. [The appellant] intended to obtain a gain for Barat Advisory from the Commonwealth, namely, keeping the capital gain derived from the disposal of the 48 million Admerex shares and avoiding the payment of tax on that capital gain. 177. The intention of [the appellant] was dishonest because: (i) [The appellant] was aware that tax was payable on any capital gain derived from the disposal by Barat Advisory of the Admerex shares, including the 48 million Admerex shares; and (ii) [The appellant] used the Stichting groups to conceal the disposal of the Admerex shares, including the 48 million Admerex shares, and the proceeds of such disposal, in order to avoid the payment by Barat Advisory of tax on any such capital gain. Outline of Crown case 9We shall provide a more detailed outline of the Crown case at this stage. The trial judge, in a lengthy and comprehensive exercise, detailed the facts in his remarks on sentence. That section of the sentencing decision encompassed some 43 pages of closely expressed factual material. The present outline will not descend to that detail. Where it is necessary for us to refer to more detail, having regard to the particular grounds of appeal relied on, we shall do so at a later stage. 10It is convenient to start in 2003. On or around 16 January 2003, the appellant entered into a Mandate Agreement with Sinitus Treuhand AG ("Sinitus") concerning Clairmont Holdings and Finance Limited ("Clairmont Holdings and Finance"). 11Sinitus was a Swiss financial services company. Urs Meisterhans was a partner at Sinitus. Mr Meisterhans became a significant participant in events connected to the offences. Clairmont Holdings and Finance was a company incorporated in the British Virgin Islands. 12The Mandate Agreement provided that, in return for a fee to be paid by the appellant, Sinitus would act as directors and/or officers of Clairmont Holdings and Finance, and would act exclusively on instructions received from the appellant or his attorney. On this basis, the appellant controlled Clairmont Holdings and Finance. There was thus a history of Mr Meisterhans receiving instructions from the appellant and acting on those instructions. 13In or around May 2003, the appellant was introduced to Kim Goodall. Mr Goodall became a significant witness for the prosecution at trial, although his credit and reliability was attacked by the appellant. Mr Goodall had previously been involved in a Swiss software development company known as Temenos Group AG ("Temenos"). 14In 2003, the appellant encountered a situation which was to lead to what the trial judge later described as a "windfall". As at 21 May 2003, Global Technology Limited ("GTL") was owed a debt of approximately $11 million (later found to be closer to $8 million) by Global Technology Australasia Limited ("GTAL"). GTL was a company registered in South Africa and was the holding company of GTAL, which was a publicly listed company registered in Australia. GTAL had no funds to pay the debt. As part of a complex series of negotiations, on 21 May 2003, GTL and Clairmont Holdings and Finance signed a Debt Assignment Agreement. 15Pursuant to this agreement, GTL sold the debt to Clairmont Holdings and Finance for $1, payable if and when demanded. Consequently, GTAL owed a debt of approximately $11 million (later found to be closer to $8 million) to Clairmont Holdings and Finance. The appellant, in July 2003, was appointed as an Executive Director and Acting Chief Executive Officer of GTAL and its subsidiaries. On 10 July 2003, GTAL changed its name to Admerex Limited. 16On 15 August 2003, on instructions from the appellant, Barat Advisory Pty Ltd ("Barat Advisory") was registered with the Australian Securities and Investment Commission. From the time of its incorporation, the appellant has been the sole director and shareholder of Barat Advisory. It was accepted that, at all relevant times, the appellant was the controlling mind of Barat Advisory. 17In or around October 2003, the appellant and Mr Goodall decided to acquire approximately $7.9 million of the debt owed by Admerex to Clairmont Holdings and Finance. On 18 November 2003, Clairmont Holdings and Finance sold $2,236,459 of the debt owed to it by Admerex to Barat Advisory. In consideration for obtaining the debt owed to it by Admerex in the sum of $2,236,459, Barat Advisory was required to pay $1.5 million to Clairmont Holdings by 20 November 2003. 18Barat Advisory did not pay the $1.5 million it owed to Clairmont Holdings and Finance as consideration for its acquisition of the relevant part of the debt owed by Admerex. 19On 18 November 2003, Clairmont Holdings and Finance sold $5,665,692 of the debt owed to it by Admerex to Atticus Investments Inc ("Atticus"), a company operated by Mr Goodall. Similarly, this debt was part of the debt acquired by Clairmont Holdings and Finance on 21 May 2003, before GTAL changed its name to Admerex. Atticus was required to pay $3.8 million to Clairmont Holdings and Finance by 20 November 2003, and such a payment was made on or around 20 November 2003. 20On 24 November 2003, Mr Goodall was appointed as Director of Admerex, and he continued thereafter to be a Director of Admerex. 21On 19 December 2003, Barat Advisory opened a bank account with the Commonwealth Bank of Australia (the Barat Advisory CBA account). This bank account was opened at the direction of the appellant. Barat Advisory operated this account during the period from 19 December 2003 until 19 November 2007. The appellant was the only person authorised to operate the account. Barat Advisory also operated a second bank account with St George Bank (the Barat Advisory St George account). 22On 30 April 2004, allotments of shares in Admerex were made to both Barat Advisory and to Atticus to repay the debts owed by Admerex respectively to Barat Advisory and Atticus. 23In the case of Barat Advisory, an allotment of 55,911,475 shares in Admerex was issued at a value of 4 cents per share. It was this parcel of shares that became the focus of the prosecution case in relation to Count 1 and indirectly to Count 2 in the indictment. 24The issue of Admerex shares on 30 April 2004, in order to repay the debts owed by Admerex to Barat Advisory and Atticus, was the subject of an independent expert's report, which concluded that the issue of shares was fair and reasonable to other Admerex shareholders and was approved at an Annual General Meeting of Admerex shareholders on 30 April 2004. 25On 7 January 2005, the appellant resigned as a Director of Admerex. 26The Crown case was that the appellant now found himself in a position whereby his company, Barat Advisory, had acquired an asset in the form of the Admerex shares with the value of at least $2.2 million in circumstances where Clairmont Holdings and Finance, which was also controlled by the appellant, had acquired the original asset, being the debt of approximately $11 million (later to be assessed at $8 million) at a cost of $1. It was the Crown case that the appellant was, by this fortunate situation, now confronted with the problem of determining how to realise the profit from those transactions without having the proceeds substantially diminished by an obligation to pay tax, particularly CGT. 27The Crown case was that, with these concerns in mind, the appellant approached Anne Harley, a solicitor and partner at Atanaskovic Hartnell, who had considerable experience in taxation law. The appellant had met Ms Harley in 2000, and she had provided professional advice to him from time to time thereafter. Ms Harley was a Crown witness at the trial. The appellant sought advice from her as to how the 55 million Admerex shares could be placed within a structure to facilitate the sale of those shares to offshore investors. There were tax advantages involved in the discussions. 28In response to the appellant's request for advice, Ms Harley developed an offshore structure which used offshore companies and entities known under Dutch law as "Stichtings". Ms Harley had previously used a Stichting Group structure for another client. 29The offshore structure developed by Ms Harley consisted of 5 Stichting and 5 offshore companies ("the Stichting Group"). 30The 5 Stichtings established by Ms Harley were known, respectively, as: (a) Stichting Black; (b) Stichting Adelaar; (c) Stichting Badinage; (e) Stichting Wijsheid; and (d) Stichting Aurelius 31These 5 Stichtings were established on 11 June 2004, and were administered on behalf of the appellant by a Dutch administration services company known as Citco Nederland BV ("Citco"). 32The offshore companies were: (a) Challinor Equities Limited; (b) Schlossman Partners Limited; (c) Thouvanel Investments (Asia Pacific) Limited; (d) Metevier Securities International Limited; and (e) Vaillendourf Europe Limited. 33These companies were incorporated in St Vincent and the Grenadines by Mr Meisterhans, at the request of Ms Harley, on 3 June 2004. Mr Meisterhans was appointed as a Director of each of these companies. 34Each Stichting was the sole shareholder of one of the offshore companies. Each Stichting Group was in similar form, and was established by documentation which was essentially the same in content and purpose. The documentation in each case included a Master Investment Futures Agreement and Form of Confirmation between the appellant and each Stichting. The termination date in each case was 1 July 2005, although it was anticipated, as part of the structure, that the termination date would be extended for a further period or periods, not exceeding 10 years. 35Under this Agreement, on 1 March of each year until the termination date, the appellant was obliged to pay the Stichting the shortfall, if any, between the dividend paid or payable by the relevant company to the Stichting in respect of the financial year immediately preceding that date, and the amount equivalent to 10 per cent of the committed capital of the company. As the committed capital of each Stichting, however, was US$100, the appellant's maximum exposure in respect of each annual payment, and the ultimate termination payment, was US$10. The appellant was not entitled to any payment by the Stichting or the company, and was not entitled to any of the assets of the Stichting or the company, until after the termination date. 36There was also a Deed of Charge in each case, dated 11 June 2004. This was a deed made between the appellant and the relevant Stichting. Under this Deed of Charge, the Stichting could not deal with, sell or otherwise dispose or part with possession of the shares it held in the company, unless it had prior written consent of the appellant. There were other restrictions as well. 37It appears that, in the period between May and August 2004, Ms Harley explained to the appellant, both orally and in writing, that: (a) There would be tax payable on the initial disposal of the shares, but during the term of the arrangement there would be no tax liability. (b) The appellant would not be entitled to the benefits of the assets of the Stichting Group until after the termination of the Stichting Group structure. (It appears the structure was intended to have an overall life of about ten years). (c) For both company law and taxation purposes, neither the Stichtings nor the companies were associated. (d) None of the Stichting Group companies were required to lodge a substantial shareholder notice and subsequent disposal of Admerex shares by the Stichting Group companies would, so long as Admerex remained listed on the Australian Stock Exchange, be free of CGT. (e) Any payment the appellant would receive upon the termination of the Stichting Group structure would be subject to CGT in Australia if that payment represented a capital gain on the value of the assets which had been held in that Stichting group; and (f) The Stiching group companies were required to act independently of the appellant and independently of one another. His only interest would be financial and protected by the documentation, especially the Deeds of Charge. 38On or around 11 June 2004, the appellant signed a document in relation to each of the 5 Stichtings, entitled "Declaration of Source of Funds". This identified the appellant to be the beneficial owner of funds used to establish the Stichtings, and of any funds which might from time to time be transferred into the names of the Stichtings. The appellant was also identified as the beneficial owner of assets in documentation which opened accounts, on or around 15 June 2004, in the name of each of the Stichting Group companies. These accounts were with a Swiss bank known as EFG Bank AG ("EFG Bank"). These accounts were opened by Mr Meisterhans, who was also nominated as the sole signatory in relation to each of the accounts. 39One of the critical issues at trial was whether, when the 55 million Admerex shares were transferred to the Stichting Group, Barat Advisory (with the appellant as its controlling mind) retained beneficial ownership of them. The documentation to which we have referred in the last paragraph was clearly evidence that pointed in that direction. Ms Harley, however, gave evidence that, in her opinion, the appellant had no such beneficial ownership and that the documentation which identified the appellant as the beneficial owner was only provided at the insistence of Citco and EFG Bank. In his remarks on sentence, the trial judge indicated that the guilty verdicts demonstrated that the jury must have been satisfied in relation to this issue. In other words, the jury must have been satisfied that, contrary to Ms Harley's opinion, Barat Advisory retained the beneficial interest in the 55 million Admerex shares after the legal title was transferred to the Stichting Group companies on or around 11 June 2004. As we have said, this was a critical issue at trial and it has become a critical ground of appeal in these proceedings. 40On 11 June 2004, the appellant signed 5 documents entitled, "Standard Transfer Form for Non-Market Transactions" on behalf of Barat Advisory. These documents were evidence that, on that day, Barat Advisory transferred the 55 million Admerex shares to the 5 Stichting Group companies in 5 parcels of shares at a value of 5 cents per share. The total stated consideration for these 5 parcels of shares (comprising in all the 55 million Admerex shares) was $2,795,573.75. 41Following the transfers, the appellant signed a document which stated that he had disposed of his indirect interest as the sole shareholder of Barat Advisory in the 55 million Admerex shares. Similarly, on 15 June 2004, he signed a "Notice of Ceasing to be a Substantial Shareholder". 42The appellant gave instructions to the Company Secretary of Admerex for the placement of the 55 million shares with ANZ Nominees. They were to be held on behalf of the 5 Stichting Group companies in an ANZ Nominees account operated by EFG Bank. These instructions were followed. 43There was evidence at trial that the appellant, in June 2004, told Mr Goodall that he had sold the 55 million Admerex shares to give himself a tax position in Australia; that CGT would be payable on that disposal, but that he did not have a tax liability on any further increases in the value of the Admerex shares. 44The financial statements for Barat Advisory for the financial years ending 30 June 2004 and 30 June 2005 did not record any debt owed to Barat Advisory by any of the Stichting Group companies for the transfer of the 55 million Admerex shares. Similarly, the Barat Advisory CBA account statements did not show any payment to Barat Advisory by any of the Stichting Group companies in respect of the transfer of the shares. A similar position applied to the statements for the St George account. 45Contrary to the terms that governed the Stichting group, as they had been established by Ms Harley, there was no dividend paid by any of the Stichting group companies to any of the Stichtings. Similarly, the appellant did not make any annual payment to any of the Stichtings representing the shortfall between the dividend paid, or payable, by any of the Stichting Group companies and the amount equivalent to 10 per cent of the committed capital of any of the Stichting Group companies. Nor was there any payment made on the termination date. 46During 2004, Admerex began to explore a capital raising transaction involving a Swiss Bank known as "SwissFirst Bank AG" ("SwissFirst Bank"). Earlier that year, in April 2004, Admerex (Ireland) Limited ("Admerex (Ireland)") was incorporated in Ireland. The appellant was appointed as one of the Directors of this company. The capital raising transaction envisaged required Admerex (Ireland) to provide to SwissFirst Bank 5 million shares in Temenos. These shares were owned by Mr Goodall and were to be provided by Admerex (Ireland) as security to SwissFirst Bank. 47On 8 December 2004, Mr Goodall gave instructions for 5 million Temenos shares, owned by him, to be transferred to SwissFirst Bank as security for a loan by SwissFirst Bank to Admerex (Ireland) in accordance with the terms of the proposed capital raising transaction. There was a Letter of Intent entered into between Admerex and SwissFirst Bank which confirmed the terms of the venture. A bridge loan was contemplated to be secured by 5 million Temenos shares, owned by Mr Goodall, to be assigned and transferred to SwissFirst Bank by Admerex (Ireland). 48On or around 24 December 2004, 5 million Temenos shares owned by Mr Goodall were transferred to SwissFirst Bank as security for the bridge loan to Admerex (Ireland) in accordance with the Letter of Intent. The shares were placed in a SwissFirst Bank holding account. On a cost-price basis, the value of the 5 million Temenos shares at that time was approximately equivalent to $53,550,000.00. 49On or around 27 December 2004, the SwissFirst bank account in the name of Admerex (Ireland) had as its signatories the appellant and Mr Meisterhans. 50On 30 January 2005, the appellant travelled into Switzerland on behalf of Admerex and Admerex (Ireland) to renegotiate with SwissFirst Bank the capital raising transaction described in the Letter of Intent. On or around 2 February 2005, while he was in Switzerland, the appellant telephoned Mr Goodall from Zurich. The appellant told Mr Goodall that the capital-raising deal was to be changed, and that the security provided by Admerex (Ireland) would only need to be 3 million Temenos shares, not the 5 million Temenos shares as had been previously required under the Letter of Intent. 51During the same telephone conversation, the appellant told Mr Goodall that Mr Goodall would get a million Temenos shares back, and said he (the appellant) would take a million Temenos shares for 49 million Admerex shares. Mr Goodall replied, "OK, the deal needs to be renegotiated and we will discuss it when we get back". This, the trial judge found, was the share swap which, according to the jury's verdict, constituted a contract for the disposal of at least 48 million Admerex shares. It was this transaction that precipitated a CGT event. 52Thereafter, the appellant (with the aid of Mr Meisterhans), acted promptly in a manner consistent with there being such an arrangement, with sale transactions occurring concerning the 1 million Temenos shares, and funds thereafter being directed for the appellant's use. 53On 2 February 2005, Admerex (Ireland) and SwissFirst Bank agreed to terminate the Letter of Intent. The agreement to terminate was signed by the appellant, on behalf of Admerex (Ireland) and was authorised by Mr Goodall. On the same day, Admerex (Ireland) sent a security delivery order which instructed SwissFirst Bank to transfer 1 million Temenos shares to a safe custody account with SwissFirst Bank in the name of Challinor Equities. Mr Meisterhans wrote to SwissFirst Bank on the same day, directing that the account was to be opened so that it could hold the 1 million Temenos shares which were to be transferred by the bank to Challinor Equities. 54On 2 February 2005, account number 6048 was opened at SwissFirst Bank in the name of Challinor Equities. Mr Meisterhans was nominated as one of the authorised signatories to the account, together with two other Directors of Sinitus. The appellant was identified as the beneficial owner of the assets held in the Challinor Equities SwissFirst Bank account, but was not nominated as a signatory to the account. 55On 3 February 2005, SwissFirst Bank confirmed that, as instructed by Mr Meisterhans, it had transferred 1 million Temenos shares from SwissFirst Bank account number 7900 into the Challinor Equities SwissFirst Bank account. In addition to the 1 million Temenos shares transferred to the Challinor Equities account, a further 1 million shares was transferred to EFG Bank, to be held on behalf of Mr Goodall. 56The SwissFirst Bank transfer documentation indicated that the cost-price of the Temenos shares was CHF9.4 per share, as at the time they were placed into the Challinor Equities SwissFirst Bank account. On this basis, in Australian dollar terms, the cost-price of the 1 million Temenos shares was equivalent to approximately $10,141,331.00 as at 3 February 2005. However, the account opening documentation for the Challinor Equities SwissFirst Bank account stated that the starting inventory for the account was 1 million Temenos shares valued at CHF8.8 million. On this basis, the value of the 1 million Temenos shares was equivalent to $9,494,012.30 as at 3 February 2005. 57On 3 February 2005, Temenos shares were traded on the Swiss Stock Exchange at a value between CHF7.85 and CHF8.09 per share. On this basis, 1 million Temenos shares were valued on the Swiss Stock Exchange at the equivalent of between approximately $8,469,090.00 and $8,728,018.00 on that date. 58In exchange for the transfer on 3 February 2005 of the 1 million Temenos shares into the Challinor Equities SwissFirst Bank account, the appellant arranged for 48 million Admerex shares to be held, on behalf of Mr Goodall, in accounts in the name of Stichting Group companies, as follows: (a) 11,900,000 Admerex shares were held by ANZ Nominees on behalf of the Schlossman Partners EFG Bank account; (b) 11,500,000 Admerex shares were held by ANZ Nominees on behalf of the Thouvanel Investments EFG Bank account; (c) 13,500,000 Admerex shares were held by ANZ Nominees on behalf of the Metevier Securities EFG Bank account; and (d) 11,100,000 Admerex shares were held by ANZ Nominees on behalf of the Vaillendourf Europe EFG Bank account. 59On 3 February 2005, Admerex shares traded on the Australian Stock Exchange at a value of between 17.5 cents and 19 cents per share. On this basis, the 48 million Admerex shares were valued on the Australian Stock Exchange at between $8,400,000.00 and $9,120,000.00 as at 3 February 2005. 60The Admerex shares transferred on 3 February 2005 to the Stichting Group companies on behalf of Mr Goodall remained in that situation until later in 2005. On or around 14 September 2005, arrangements were made for the 48 million Admerex shares to be transferred so that they were held on behalf of a third party. These arrangements were carried out by Mr Mehm of EFG Bank on instructions from Mr Goodall. 61During the period 3 February 2005 until about mid June 2005, the 1 million Temenos shares in account 6048 were disposed of and funds were deposited to the Challinor Equities SwissFirst Bank account. On the case presented by the Crown, about 8 million Swiss Francs were generated by the sale of the shares. The value of the shares, by reference to their market value on the Australian Stock Exchange throughout that period, was between $8.4 million to $9.1 million, depending on the precise fluctuation of the share price at any given time. 62The Crown case at trial was that the appellant established the Stichting Group arrangement for the purpose of giving the appearance that he had caused Barat Advisory to divest itself of the Admerex shares to a group of entities which were independent and at arm's length, when in fact, at all material times, the appellant continued to exercise effective control over the shares and the proceeds of their disposal, sometimes for his own personal use. The Crown case was that, in disregard of the terms governing the conduct of the Stichting Group, the proceeds of the share trading following the swap were then distributed. A total of approximately $5.6 million was transferred in the period from March 2005 to January 2006, to the Barat Advisory CBA account. Amounts from the proceeds of the sale of the shares were allegedly used for the personal benefit of the appellant, including a house purchase, the purchase of a yacht, jewellery, a luxury vehicle and artworks. The full details of these numerous transactions are to be found in the remarks on sentence, paragraphs [102]-[128]. The total of the transfer of funds from Challinor Equities to Barat Advisory was $5.6 million. The total of the deposits which were consequently received into the Barat Advisory CBA account was $5,599,902.61 (being $5.6 million, less bank transfer fees). 63The trial judge meticulously listed the following assets as having been purchased, or partly purchased, with the proceeds of the sale of the 1 million Temenos shares deposited into the Challinor Equities SwissFirst Bank account: (a) a painting from Art et Antiquites, Paris, for an amount of €160,000; (b) deposit in the amount of $200,000 for the purchase by the appellant's wife of a residential property in Neutral Bay for $4.7 million; (c) purchase on or around 11 March 2005 by Barat Advisory of the yacht known as 'Black Snake' for the amou nt of $270,000; (d) stamp duty in the amount of $269,492 for the purchase of the Neutral Bay property; (e) purchase of jewellery for $100,000 by Barat Advisory; (f) payment of $454,052.94 to repay an overdraft with St George Bank fixed rate loan account in the name of the appellant; (g) payment of $1,526,235.77 to repay an overdraft with St George Bank in the name of the appellant; (h) deposit of $409,743.73 into St George Bank call deposit account in the name of the appellant (to meet conditions of fi nance to be provided by St George Bank for the purchase of the Neutral Bay property); (i) membership fees with Exclusive Resorts in the amount of US$385,000; (j) purchase of artwork or other items from Gallerie Ariane Dandois, Paris, for the amount of €29,300; (k) payment of $390,000 for the purchase by Barat Advisory of 'The New School' by Geoffrey Smart; and (l) payment of $71,534.61 by Barat Advisory in connection with acquisition of a 2005 Bentley motor vehicle. 64We turn now to consider the facts relating directly to the second count in the Indictment. This narrative begins in May 2005 when the appellant became a client of Grant Thornton Accountants. The firm was retained to prepare financial statements and tax returns for Barat Advisory for 2004, 2005 and 2006. Instructions were also given that outstanding tax returns for the appellant himself should be prepared. 65The gist of the Crown case in relation to the second count in the Indictment was that the appellant deliberately and dishonestly failed to tell Grant Thornton Accountants the truth concerning the share swap on or around 3 February 2005, and failed to make honest disclosure of the substantial capital gain which had flowed to Barat Advisory as a result of the share swap. 66On 27 May 2005, the appellant met with Mr William Shew, a Director of Grant Thornton. The appellant told Mr Shew that assets, including art (referred to as the 'Clairmont Collection') were funded by loans from Clairmont, which were secured over the residential property at Neutral Bay, with interest capitalising at 3.5% to be repaid from capital growth on that property. Shortly afterwards, the appellant provided Grant Thornton with a folder of documents which included information relating to banking records and share transactions. 67At the next meeting in June 2005, the appellant met with Mr Shew and Mr Stephen Thurn. More information was sought from the appellant to enable tax returns to be prepared. At this meeting, the appellant referred to tax advice he had received from Ms Harley and said that he had received a number of loans from overseas. 68Between July and September 2005, Grant Thornton prepared file notes which, in effect, raised queries on a number of matters emerging from the folder of documents which the appellant had given to the accountants. At a meeting on 13 September 2005, Mr Thurn queried the appellant in relation to payments which had been received by Barat Advisory. Mr Thurn was told that certain substantial amounts of money were loans from Challinor Equities. 69The next recorded meeting was in September 2006. At about this time, Colin Samuel, a Manager at Grant Thornton, took over from Mr Thurn the task of preparing tax returns for Barat Advisory and the appellant. Mr Samuel set about endeavouring to obtain information from the appellant and from the appellant's bookkeeper. In response to a request from Mr Samuel, the appellant sent an email which attached information in relation to share transactions by Barat Advisory from the period 10 October 2005 until 16 August 2006. This information made no reference to the Admerex shares. On 6 October 2006, Mr Samuel sent an email to the appellant and his bookkeeper seeking details of all share transactions by Barat Advisory for the financial year ending 30 June 2005. On 19 October 2006, Mr Samuel sent an email to the appellant which raised queries about details for the financial year ending 30 June 2005. Specifically, it recorded a query about a deposit of $1 million which had been said to relate to Clairmont. 70The appellant sent an email to Mr Samuel on 19 October 2006 asking for a meeting to discuss the queries that had been raised by the accountant. The meeting was to take place on 31 October 2006. 71On 25 October 2006, Mr Samuel received an email from Bell Potter Securities attaching a printout of share transactions by Barat Advisory from the period from 1 January 2004 to 25 October 2006. That printout made no reference to the Admerex shares. Prior to the proposed meeting, Mr Shew sent an email to the appellant, indicating that more information was required to support tax returns, both by Barat Advisory and the appellant. At the meeting, a timeline was given by the appellant to the accountants which confirmed his instructions that "he funded his lifestyle with loans received from Clairmont". 72On the basis of all the information provided by the appellant, Grant Thornton prepared a number of draft documents, including an income tax return for Barat Advisory for the financial year ending 30 June 2005. The documents were provided under cover of a letter from Mr Shew dated 10 November 2006, which included the following statement: "Please read the financial statements carefully. The Director's Statement that you signed states that you believe that the accounts are a true reflection of the financial position of the company and that the company can pay its debts as and when they fall due. We wish to remind you that we have not audited the financial statements of the company. Ultimate responsibility for the accuracy of the accounts and tax return rests with you as Director." 73On or around 13 November 2006, Grant Thornton received the 2004 Barat Advisory income tax return, and the 2005 Barat Advisory income tax return, both signed by the appellant. As instructed by the appellant, the two returns were then lodged electronically with the Australian Tax Office ("ATO"). 74In the 2004 Barat Advisory income tax return, the appellant declared that: (a) the total taxable income of Barat Advisory for the financial year ending 30 June 2004 was a loss of $7,375.00, and (b) the net capital gain derived by Barat Advisory for the financial year ending 30 June 2004 was $9.00. 75In the 2005 Barat Advisory income tax return, the appellant declared that: (a) the total taxable income of Barat Advisory for the financial year ending 30 June 2005 was $17,323.00, and (b) the net capital gain derived by Barat Advisory for the financial year ending 30 June 2005 was $4,597.00, realised on the sale of Admerex shares which were acquired on 13 September 2004 at a cost of $14,862.00 and sold on 15 October 2004 for $19,459.00. 76In June 2007, Grant Thornton prepared financial statements and income tax returns for Barat Advisory for the financial year ending 30 June 2006. The tax return for that year was lodged with the ATO in June 2007. It did not disclose any capital gain derived by Barat Advisory on the sale of the 55 million Admerex shares, or any portion of the Admerex shares. In January 2008, Barat Advisory income tax return for the financial year ending 30 June 2007 was lodged. It did not disclose any capital gain derived by Barat Advisory on the sale of the 55 million Admerex shares, or any portion of the Admerex shares. 77In his remarks on sentence, the trial judge said: "The offender deliberately and dishonestly failed to tell Grant Thornton and Mr Shew, Mr Thurn and Mr Samuel about the disposal of the 48 million Admerex shares on or about 3 February 2005 in order to avoid the payment by Barat Advisory of tax on the net capital gain arising from that disposal. His Honour found that Barat Advisory ought to have paid tax in the amount of between approximately $1,964,727.00 and $2,466,399.00 on the net capital gain." The course of the trial 78In July 2010, prior to the empanelment of the jury, the appellant made a number of applications upon which the trial judge was required to adjudicate. The most significant of these was an application for a permanent stay of the trial on the basis of an abuse of process. The abuse of process was said to arise because of the juxtaposition of the money laundering charge and the dishonest obtaining charge in the one Indictment. Ultimately, in a lengthy decision given in August 2010, the trial judge declined to order a permanent stay. There was no appeal from that decision. However, the application itself, and the arguments presented in relation to it, underscored a recurring theme in the trial and the sentencing proceedings after verdict. We consider that it may be helpful to a better understanding of a number of the arguments which were relied on in this appeal if we briefly refer to the conclusion reached by the trial judge in his pre-trial judgment and the reasons for it. 79One of the principal arguments advanced by the appellant in his pre-trial application was founded upon principles stated in the well known decision of the High Court in Pearce v R [1998] HCA 57; 194 CLR 610. The submission made was that there was an abuse of process because the criminality of the first charge encompassed the criminality of the second. The argument was that there was no additional criminality involved in the prior dealing that was not necessarily encompassed in the s 135.1 offence. The appellant, it was claimed, was "being twice vexed for the one cause". The appellant sought to bring about a situation where the money laundering charge should be stayed on the basis that it was an abuse of process, with it being open to the Crown to proceed on the dishonest obtaining charge. 80The trial judge gave detailed considerations to the authorities dealing with abuse of process in the context of the stay application. His Honour said (Appeal Book Vol 1, 69): "Part of the resolution of that question will involve an understanding of the ability of a court, in accordance with Pearce v The Queen, if the point is reached where sentence is to be passed on both matters, to adopt a commonsense approach to the assessment of criminality with respect to each offence, without the use of excessive subtleties and refinements, in determining whether the same acts are common to the two offences and whether there are remnants of criminality in one of the offences, which are not present in the other." 81The second aspect of the trial judge's analysis related to an examination of a number of cases involving the money laundering provisions contained in Division 400 of Part 10.2 of Chapter 10 of the Code. We shall, at a later stage, set out the relevant sections of these provisions. For the moment, it is sufficient to observe that the trial judge gave careful consideration to the relevant authorities. They included R v Ansari [2007] NSWCCA 204; 70 NSWLR 89; R v Foster [2008] QCA 90; (2009) 1 QdR 53; R v Wing Cheong Li [2010] NSWCCA 125; Thorne v R [2009] NSWCCA 294; Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463; R v Guo ; R v Quian [2010] NSWCCA 170; R v Jones ; R v Hili [2010] NSWCCA 108; and Schembri v R [2010] NSWCCA 149. 82The trial judge stated that these authorities represented "strong reminders" to prosecutors that the money laundering offences in s 400 were to be used "in a measured way". An assessment was required, his Honour held, in the circumstances of each particular case as to whether a money laundering charge ought to be brought, or a combination of charges including a money laundering offence and other offences. While his Honour recognised that in a number of cases the court had intervened to prevent a particular prosecution proceeding on the charges selected by the prosecutor, those cases, in his Honour's view, were significantly different from the circumstances of the trial upon which he was about to embark. His Honour said (Appeal Book Vol 1, 91 at [170]): "I accept the submissions of the Crown that there are significant additional features with respect to the areas of alleged criminality lying within the first and second counts. With respect to the money laundering charge, the alleged conduct of the accused with respect to the Stichting Group is an elaborate additional feature. With respect to the dishonest obtaining charge, I accept the Crown submission that there was effectively a second phase of conduct, commencing with alleged communications between the accused and his accountants which culminated in the lodging of the allegedly false return." 83The trial judge was not satisfied that the prosecution of both charges in the present matter constituted an abuse of process. His Honour found that the appellant had not made out a case for a permanent stay on the Indictment. For present purposes it is appropriate to observe, as we have indicated, that the particular aspects of criminality mentioned by his Honour arise in both the conviction and sentence appeals as a recurring theme. 84Thereafter, the jury were empanelled and the trial commenced on 18 October 2010. The trial was very much facilitated by a series of sensible agreements between the parties. This included the formal admission of a number of facts pursuant to s 184 of the Evidence Act 1995. Those Agreed Facts were admitted in the Crown case as Exhibit B. Mr Peter Hastings QC appeared for the Crown and made the Crown opening. Mr Lionel Robberds QC, with Mr M Wigney SC and Mr M Polden appeared for the appellant. There was a brief defence opening. This highlighted the fact that a central issue in the trial would be whether the sale and transfer of the Admerex shares on 11 June 2004 carried with it both the beneficial and legal interest in those shares. The defence case was that Ms Harley established the five overseas companies and the five Stichting Groups, with the consequent sale of the Admerex shares to the five companies, so that, if the opportunity arose, those five companies and Stichting Groups could be part of a proposed takeover of the Swiss company, Temenos. Mr Robberds explained to the jury in his opening that, if the fact were that Barat Advisory had transferred the Admerex shares both legally and beneficially on 11 June 2004, as the defence maintained, there could be no question of it making a capital gain as a result of any transaction which may have occurred in February 2005. 85Given the complexities of the trial, it might have been thought that it would have taken many weeks to conclude. This was not to be the case, however, and the efficient running of the trial meant that the evidence concluded within some 12 days. The principal witnesses called for the Crown were Peter Carney, Anne Harley, Kim Goodall, Sean Mark (a financial analyst with the Australian Federal Police) and a number of accountants who had been involved in the preparation of Barat Advisory's and the appellant's financial statements and tax returns. 86Mr Carney was an accountant who had worked for a time for Admerex Limited. Ms Harley was the solicitor from Atanaskovic Hartnell who had provided advice to the appellant in the period 2003 to 2006. Mr Goodall was, as we have indicated earlier, at one time a Vice-Chairman of Temenos. He was a founder of the company, a shareholder and had associations with it at the time he gave his evidence. Mr Mark had prepared a flowchart which demonstrated in graphic but helpful form the sequence of events relied upon by the Crown in the proof of its case. The flow chart became Exhibit A in the trial. 87At the conclusion of the Crown case, an application was made by the appellant for verdicts by direction. The principal basis on which a verdict by direction was sought on the first count related to the beneficial ownership issue. The defence maintained that, on the face of the documents effecting the share transfers on 11 June 2004, there could be no suggestion other than that the legal and beneficial ownership thereby passed to the transferee companies. Since it was no part of the Crown case that these transactions were a sham, it was argued, the beneficial interest in the Admerex shares must have been transferred to the five Stichting Group companies in June 2004. This resulted in a situation that the February 2005 transaction could not have been a Capital Gains event. This submission embraced the further proposition that the Crown case accepted that no person, other than the appellant, intended to deceive third parties in relation to the transfer and ownership of the Admerex shares, or acted in any way dishonestly or fraudulently in relation to the transfers. Accordingly, it was submitted that there was no evidence to support the charge contained in the first count. The critical point made was that, if there were no evidence that Barat Advisory had any beneficial interest in the shares after 11 June 2004, this was, as a matter of law, fatal to the Crown case on the first count. 88The trial judge rejected this submission. He held, first, that there were documents signed by the appellant in which he had certified that he was the beneficial owner of funds used to establish the Stichtings. There was the "beneficial owner" document signed by Mr Meisterhans. In addition, there was evidence demonstrating an element of control by the appellant with respect to both the shares and the conduct of Mr Meisterhans. This pointed to the latter acting as the agent of the appellant with respect to the shares. There was evidence to support the Crown proposition that after June 2004, the appellant was acting, as it was put by the Crown, "on both sides of the table". 89Mr Robberds QC, however, had presented additional arguments in connection with his submission that there should be a verdict by direction on the first count. These were, firstly, that for the offence to be made out, the shares the subject of the first count had to be "capable" of becoming an instrument of crime, that is, capable of facilitating the commission of the offence contrary to s 134.2 of the Code. Mr Robberds submitted that a person can only deal with property within the meaning of s 400.3(1) if the property could, in the future, become an instrument of crime. The argument advanced was that, after the disposal of the shares on 3 February 2005, it was simply impossible for the shares to be used by the accused to facilitate the commission by Barat Advisory of the s 134.2 offence because the appellant no longer controlled them. 90Secondly, Mr Robberds maintained that, on the Crown case, the appellant had always intended that Barat Advisory would avoid the payment of Capital Gains Tax. This meant, on the Crown case, that Barat Advisory, come what may, would never disclose in its income tax returns of either the sale of the shares or any capital gain which it might make at some point after 11 June 2004, however that might occur. Accordingly, the intended commission by Barat Advisory of the s 134.2 offence did not require the use of the 48 million shares and thus, on 3 February, they could not in any way "facilitate" Barat Advisory in relation to its decision to lodge the 2005 income tax return without disclosing the sale or any consequent capital gain. 91Thirdly, it was argued that the shares themselves had no properties that made them capable of facilitating the commission of any offence by Barat Advisory relating to the lodgement of tax returns - they were simply shares and nothing more. 92Finally, in relation to the first count, it was submitted that there was no evidence adduced by the Crown that the appellant ever intended that the 48 million shares would become an instrument of crime, in that they would be used to facilitate the alleged breach of s 134.2 by Barat Advisory. 93The Crown, in response, argued that there was evidence that a number of preparatory steps had been taken by the appellant after the purported assignment of the shares on 11 June 2004. Subsequently, and specifically on 3 February 2005, the shares were used as an instrument of crime, and had an ongoing function in that regard. This was because a consequence of the share exchange was that the Temenos shares came into the possession of the appellant and enabled him to gain access to the proceeds of the allotment of the Admerex shares by selling off the Temenos shares. In this way, the Crown argued, there was an ongoing use, as a result of the transaction, throughout the period leading up to the end of the financial year. The Crown argued that, while it was its case that the appellant always had in mind that Barat Advisory would avoid the payment of Capital Gains Tax, it was not until the share swap on 3 February 2005 that the conduct became an offence against s 400.3(1). It was this dealing with property that triggered the offence. The Crown submitted that, by swapping the Admerex shares with the Temenos shares, with their increased ability to be sold discreetly, the appellant facilitated the commission of the offence. 94The trial judge rejected the defence submissions. His Honour found that there was evidence capable of supporting the proposition that Barat Advisory, despite the documentation, had retained the beneficial ownership in the Admenex shares. Secondly, his Honour accepted the Crown submissions with respect to the use of the Admenex shares and the way in which it was said that this was capable of facilitating the commission by Barat of a s 134.2 offence. 95In relation to the second count, apart from the beneficial ownership issue, the defence relied on an additional argument that there was, in any event, no "disposal" of the 48 million Admerex shares on 3 February 2005. It was submitted that the evidence demonstrated that the shares were not disposed of until the occurrence of the transfer by Mr Goodall to First European Finance Investments Ltd in September 2005. The effect of this, it was argued, was that there was no capital gain from the disposal of the Admerex shares in the tax year ending 30 June 2005, so that the charge contained in the second count was, for that reason, fatally flawed. 96The trial judge was satisfied that there was evidence that the disposal of the Admerex shares by means of the share swap on or about 3 February 2005 constituted a contract or a disposal of the property so as to be capable of constituting a capital gains event occurring in the financial year ending 30 June 2005. He refused to direct a verdict on the second count. 97Following the unsuccessful application for a verdict by direction on the two counts in the Indictment, the Crown made its closing submissions to the jury. The appellant did not give evidence. The defence commenced its closing address on 9 November 2010 and concluded on the following day. However, there was a late flurry of argument before the trial judge (in the absence of the jury) concerning the form of final directions that should be given by the trial judge in his summing up. His Honour delivered a brief judgment during the course of his summing up which dealt with these outstanding issues. We shall briefly mention the nature of this late contest. 98First, counsel for the appellant took issue with a term used by the Crown in his closing submissions. This was the expression "blind trust" a reference to the transfer to the Stichting companies. His Honour accepted the defence submission on this point and indicated that he would direct the jury to put the term "blind trust" to one side and to have regard to the submissions which had been made to them, both orally and in written form by reference to the term "trust". 99Secondly, the defence expressed concern that, although the Crown had not argued that the arrangements for the transfer of the Admerex shares to the five overseas companies on 11 June 2004 had been a sham, the Crown had advanced its case before the jury in submissions that, in effect, suggested that the arrangements constituted a sham. Consequently, the defence argued that specific directions in that regard were required. 100The trial judge considered that the word "sham" had not been used by the Crown in the presence of the jury. Further, he indicated that he did not propose to inject the term into the trial during his summing up. His Honour, however, accepted the need to give some further directions and he said: "The focus of those directions, however, should be upon the need for the Crown to prove beyond reasonable doubt what he contends happened here, namely that the accused was the controlling mind on or after 11 June 2004 of Barat Advisory and was also the controlling mind of the five overseas companies and, in this regard, that it was the intention of the accused, as the controlling mind of each of the five overseas companies, that only the legal title, and not the beneficial title, to the 55 million shares in Admerex was to be transferred to the five overseas companies, and that those companies would hold the shares on trust for Barat Advisory." 101His Honour concluded, contrary to the defence submissions, that it would not be necessary for the jury to be satisfied beyond reasonable doubt that the Directors of the five overseas companies had acquiesced in their duties in favour of the appellant, and that this had amounted to an abdication by the Directors of their duties and responsibilities as Directors. He declined to give a direction to suggest that the Crown carried the burden of proving each of these matters beyond reasonable doubt. 102In the course of his summing up, which extended over a number of days, the trial judge provided the jury with written directions on tax law, and written directions in relation to the elements of each of the two offences charged in the Indictment. A further series of directions was given at the conclusion of his Honour's summing-up relating to the "controlling mind issue" on the contract/tax law issue. The jury retired to consider its verdict on the afternoon of 17 November 2010. On 19 November 2010, shortly prior to midday, the jury returned with a verdict of guilty to both charges. The jury were thereafter discharged and arrangements were made for sentencing submissions to be taken on 2 December 2010. On that day, his Honour formally entered convictions against the appellant in relation to each of the offences upon which the jury had found him guilty. Proceedings were further adjourned for the pronouncement of sentence on 17 December 2010. Bail was continued until that day. On 17 December 2010, the trial judge imposed the sentences which we have set out at the commencement of this decision. The appellant was then taken into custody. Principal issues at trial 103It can be seen that, notwithstanding the complexity of the factual circumstances surrounding the establishment of the Stichting group structure and the acquisition and disposition of the Admerex and Temenos shares, the principal issues at trial were, in a number of respects, straightforward. The Crown case was that, on or about 3 February 2005, the appellant, on behalf of Barat Advisory Pty Ltd, dealt with property by disposing of 48 million shares in Admerex. It did so by exchanging them for 1 million shares in Temenos. It was the Crown case that the 48 million Admerex shares could be used to facilitate the commission of a Commonwealth Indictable offence. This would be the case if there were an intentional failure to disclose the capital gain which had been derived in connection with the disposal of those shares and the consequent failure by Barat Advisory to pay tax on that capital gain. The trial judge gave written directions to the jury indicating that they had to be satisfied beyond reasonable doubt as to each of those matters. 104Further, the Crown case was that although Barat Advisory had transferred the Admerex shares to the five overseas companies on 11 June 2004, in doing so, it had, as subsequent activities demonstrated, retained beneficial ownership of those shares. It was accepted that, if Barat Advisory had disposed of both the legal title and beneficial ownership of the shares in June 2004, it could not again dispose of them on 3 February 2005. 105In this regard, the trial judge directed the jury: If you are not satisfied beyond reasonable doubt that Barat Advisory only transferred the legal and not the beneficial title of the shares to the five companies on 11 June 2004, you must acquit the accused. 106The Crown accepted at trial that it was necessary to prove beyond reasonable doubt that the appellant intended that the property, namely the 48 million Admerex shares, would become an instrument of crime. That is, on or about 3 February 2005, the appellant intended that the 48 million Admerex shares would be used to facilitate (make easier) the commission of an offence. 107In the written directions (paragraph 22), the trial judge stated: The Crown alleges that the accused intended that the 48 million shares would be used to facilitate the commission of an offence which involved the accused, at some time in the future, dishonestly obtaining a financial gain by causing Barat Advisory to lodge an income tax return that contained false information because it did not include information about the capital gain that Barat Advisory is alleged to have made when it swapped the 48 million Admerex shares for the 1 million Temenos shares on 3 February 2005... 108As to this, the written directions (paragraph 23) stated: The Crown must prove beyond reasonable doubt that, on or around 3 February 2005, the accused intended that the 48 million shares would facilitate (that is, make easier) that type of offence to be committed. 109In relation to count 2, the principal issues may be stated as follows: First, whether on 3 February 2005, Barat Advisory had the beneficial ownership of the 48 million shares in Admerex so as to have the capacity to dispose of them on that date, thereby creating a capital gains event. Once again, the defence case was that the legal and beneficial ownership of the shares had been transferred by Barat Advisory on 11 June 2004 to the five overseas companies. If Barat Advisory had disposed of the Admerex shares on the earlier date, it could not again dispose of them on 3 February 2005. Secondly, the Crown case was that the 48 million Admerex shares were disposed of on 3 February 2005, because either the appellant, on behalf of Barat Advisory, entered into a contract with Mr Goodall to transfer the shares to him on that day; or because there was a change of ownership of the Admerex shares on that day in that the Temenos shares were accepted by Barat Advisory as consideration for the Admerex shares. The defence argument was that there was no disposal on 3 February 2005 and that the earliest time when the shares were disposed of was 14 September 2005. If this were the case, as the defence urged, there would have been, whoever was the transferor, no liability for Capital Gains Tax in the financial year ending 30 June 2005. Written directions were given by the trial judge to reflect these issues in relation to count 2. 110There were, of course, other elements of each offence beyond those we have identified. For the purposes of this appeal, however, the principal issues at trial were those we have mentioned. Grounds for appeal against conviction 111The amended statement of the grounds of appeal against conviction contains seven grounds. We shall deal with each of these separately. Ground 1 112Ground 1 asserts that the trial judge erred in refusing to direct the jury to acquit the appellant on each count in the Indictment. There are some seven particulars given under ground one wherein it is alleged that the trial judge erred in the decision given on 4 November 2010 refusing directed verdicts. Five of these particulars relate to count 1. The remaining two relate to the second count in the Indictment. We shall deal with each separately or collectively, depending whether the particulars are separate or linked. 113Particular (a): "His Honour erred in taking into account that in the first count in the Indictment, the offence was said to have been committed between about 30 April 2004 and about 30 September 2005 when the Crown case was that the offence was committed on or about 3 February 2005 at which time the Crown alleged the share swap occurred." 114In the decision given on 4 November 2010, the trial judge had held (paragraph 33) that the evidence in the Crown case, taken as a whole, was capable of supporting each of the elements of the s 400.3(1) offence in the circumstances of the case. In that context his Honour added (paragraph 35): "I bear in mind that the offence charged in the first count is said to have been committed between about 30 April 2004 and about 30 September 2005. There are, of course, a number of key points in time within that period, and in particular the share swap on or about 3 February 2005." His Honour added (paragraph 37): "I am satisfied that there is some evidence in support of each element of the section 400.3(1) offence so that the first count in the Indictment should be left to the jury." 115We do not consider that any error has been demonstrated in paragraph 35 of the trial judge's decision. Read fairly, the comment recognises that the date of ultimate significance was the 3 February 2005, but that nevertheless it was appropriate to take into account the broader context in which the disposal took place. On the basis of the Crown case, what gave the disposal of the shares an unlawful character was both the motive behind the disposal and the structure which the appellant had put in place in which the transfer was able to be put into effect. In that regard, it could not be ignored that, according to the Crown case, the appellant, in his capacity as the controlling mind of Barat Advisory and of each of the Stichting Group companies, intended, notwithstanding Ms Harley's statements to him, that the beneficial interest in the Admerex shares would remain with Barat Advisory. Moreover, this broader context was central to both the prosecution and the defence cases. What his Honour was saying was that the Crown circumstantial case had to be examined in its broader context and, in that context, there was evidence capable of supporting the charge being left to the jury. That broader context included, of course, the precipitous events of 2 and 3 February 2005. The defence case too, based as it was on Ms Harley's advice and her subsequent actions in the middle of 2004, placed emphasis on the same broad context, although it sought to characterise those matters in a very different way to the position advocated by the Crown. Particulars (b)-(e) 116These particulars embrace a number of the matters that had been put to the trial judge at the time of the directed verdict application. However, they were reformulated for the purposes of this appeal. In their modified format, these particulars require, if accepted, that this Court enter a verdict of acquittal on the first count. 117The arguments advanced may be distilled into the following propositions. First, once the Admerex shares were disposed of by the share swap, thereafter the appellant had no ability to use them in any way at all. Accordingly, the disposal of the shares ruled out any intended use of the shares by the appellant to facilitate the future commission of an offence. In other words, once the shares were gone, they were gone for all purposes, and could not be used in any way at all. 118Secondly, and more importantly, Mr Robberds argued that there was nothing that the shares themselves could do to facilitate the Barat Advisory offence. They were simply shares. The consequence was that, as a matter of law, the 48 million Admerex shares could not in the present matter become an instrument of crime: they were incapable of facilitating by deception the financial advantage involved in the s 134.2 offence. They might, it was conceded, facilitate some other offence. But not this one. 119In support of this argument, Mr Robberds submitted that there were three steps necessary for Barat Advisory to take in order to commit the offence under s 134.2. These were: (a) Barat Advisory had to lodge its 2005 tax return; (b) The return had to deliberately omit the capital gain; (c) The ATO had to issue an assessment accepting the basis of the return. 120Mr Robberds argued that none of these three steps involved the use of the shares. Indeed, he maintained that the shares could not have been used in relation to any of those necessary steps. The lodgement of the return facilitated the offence but the shares did not. In a broader sense, the "share swap" facilitated the offence but the shares themselves did not and could not do so. 121Thirdly, Mr Robberds took issue with the Crown categorisation of the "use" of the shares as one that was, in any event, fundamentally flawed. The Crown had argued that the circumstances of the swap (the disposal itself) facilitated the commission of the offence. This was because, as the Crown submitted, the transaction was off market and because it occurred behind the screen of the Stichting Groups (Crown Submissions, paragraph 10). 122In relation to this proposition, Mr Robberds submitted, first, that "the intended use has to be a use of the property after it had been disposed of" and secondly, that the circumstances in which the swap was carried out "could not be said to be a use of the shares." Senior Counsel argued that it was neither a relevant use of the shares, nor importantly was it a use of the shares after the swap had taken place. 123Mr Robberds put his propositions into two fundamental questions: First, what were the possible ways the 48 million Admerex shares could be used to facilitate the s 134.2 offence by Barat Advisory? Second, in what way did the appellant intend as at 3 February 2005 that the shares would be used to facilitate the s 134.2 offence? Mr Robberds submitted that the answer to each of these question must be in the negative. 124As a consequence, Mr Robberds submitted that it was simply impossible to accommodate the facts of the case to the charge in count 1. As a matter of law, he argued, the Crown case placed reliance on facts that could not possibly constitute a use within the meaning of the expression 'instrument of crime'. It followed that there was no evidence that, when the appellant dealt with the 48 million Admerex shares by swapping them for 1 million Temenos shares on 3 February 2005, he intended that those Admerex shares themselves would become an instrument of crime. He could not have had that intention because the shares were incapable of such a use. 125We shall now set out the terms of s 400.3 of the Code: " 400.3 Dealing in proceeds of crime etc. - money or property worth $1,000,000 or more (1) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is, and the person believes it to be, proceeds of crime; or (ii) the person intends that the money or property will become an instrument of crime; and (c) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 25 years, or 1500 penalty units, or both. (2) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is proceeds of crime; or (ii) there is a risk that the money or property will become an instrument of crime; and (c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and (d) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 12 years, or 720 penalty units, or both. (3) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is proceeds of crime; or (ii) there is a risk that the money or property will become an instrument of crime; and (c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and (d) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 5 years, or 300 penalty units, or both. (4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d). Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs. Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that: (a) is intended by the person to become an instrument of crime; or (b) is at risk of becoming an instrument of crime." 126Section 400.2 is, relevantly, in the following terms: " 400.2 Meaning of dealing with money or other property (1) For the purposes of this Division, a person deals with money or other property if: (a) the person does any of the following: (i) receives, possesses, conceals or disposes of money or other property; ... and (b) the money or other property is proceeds of crime, or could become an instrument of crime, in relation to an offence that is a Commonwealth indictable offence or a foreign indictable offence ..." 127Section 400.1 provides the following definitions: "instrument of crime" : money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence). "proceeds of crime" means any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence). "property" means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property. ... ... To avoid doubt, a reference in this Division to money or other property includes a reference to financial instruments, cards and other objects that represent money or can be exchanged for money, whether or not they have intrinsic value. 128Section 400.13 provides: " 400.13 Proof of other offences is not required ... (2) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division an intention or risk that money or property will be an instrument of crime, to establish that: (a) an intention or risk that a particular offence will be committed in relation to the money or property; or (b) an intention or risk that a particular person will commit an offence in relation to the money or property." 129The money laundering provisions contained in Division 400 of Part 10.2 of Chapter 10 of the Code commenced on 1 January 2003 on the repeal of, inter alia, the money laundering offence provisions contained in s 81 and s 82 of the Proceeds of Crimes Act 1987 (Cth): Re Sunshine Worldwide Holdings Pty Limited [2005] NSWSC 117; 62 NSWLR 400 at 404 ([9]). 130Although the general nature of money laundering offences under s 400 of the Code has been discussed in a number of decisions, it does not appear that the arguments advanced by Mr Robberds QC have been the subject of any judicial pronouncement. Counsel were unable to refer us to any decision where the particular arguments were raised or decided. 131Some general observations, however, may be made. First, as Simpson J observed in R v Ansari at 93 ([11]), s 400.3, properly analysed, creates six different offences, in pairs, graded in descending order of seriousness. In general terms, the level of seriousness depends upon the state of mind of the accused. Common to all offences is dealing with money or other property which is either the proceeds of crime, or which it is intended will (s 400.3(1)) or might (s 400.3(2) and (3)) become an instrument of crime. Simpson J also observed in Ansari at 94 ([15]) that the "instrument of crime" form of a s 400 money laundering offence is an offence where an indictable offence is envisaged or contemplated in the future. It is not one where an indictable offence has already been committed, yielding the money or property as proceeds. It clearly involves the criminalisation of activities that transcend and go well beyond traditional concepts of "money-laundering". 132In Ansari , Howie J made a number of observations concerning the money laundering provisions in Division 400 of Part 10.2 of the Code. We shall simply refer to a portion of those observations appearing at [118]-[122]: "[118] Division 400 of Pt 10.2 of the Code is entitled "Money laundering". For the purposes of the Division the term "instrument of crime" is defined in this way; "money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)". There is also a definition of "proceeds of crime" being "any money or other property that is derived or realised, directly or indirectly, by any person from the commission of an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)". There is a wide meaning given to the term "dealing with money or other property" in s 400.2. It includes receiving or disposing of the money, importing it into or exporting it out of Australia and engaging "in a banking transaction relating to money or other property". [119] The offences within the Division, therefore, apply to a large range of activity in relation to money or other property to be used in connection with, or arising from, serious crime. Not only is there a very wide ambit in relation to the conduct caught by the offences but there is also a substantial range of criminal activity to which the money or property could relate, being limited in effect to an indictable offence of the Commonwealth or a State or Territory. The offences are not concerned only with the source of the money or property that is dealt with but also its ultimate use. The offences cover money obtained illegally or to be used for illegal purposes or dealt with in a manner that is illegal. [120] With offences that are so wide ranging in their scope it becomes somewhat difficult to imagine an offence falling within the worst category of its kind against which any particular offence can be measured. It might be thought that dealing with money that is to be used for the purposes of terrorism might be within the class of the most serious offences encompassed by the sections in the Division. But it is perhaps not so difficult to conceive of offences that will form the bulk of conduct falling within the scope of the Division that would come before the criminal courts. The most obvious will relate to money obtained as a result of drug activity and that is being dealt with in order to make it more difficult to track or identify as the proceeds of a particular crime. It may also be money that has been legitimately earned but is to be dealt with in such a way as to disguise its source in order, for example, to defraud the taxation office. [121] But frequently it will be impossible for the authorities to identify the origins of the funds or what is ultimately to be the use made of them, yet it can be shown that the manner of dealing with them was a breach of the law, such as to avoid the mandatory reporting conditions under the Financial Transactions Reporting Act. It may be the case that the persons dealing with the money do not know its source or ultimate destination and do not care provided they are being paid for rendering a service. [122] The legislation itself has attempted to structure offences to give some guidance as to the seriousness of the conduct by reference to the applicable maximum penalty for each offence. The scheme is that the greater the sum of money involved, the more serious the offence. But the legislation also takes into account the mental state of the offender, so that an offence involving the intentional dealing with proceeds of crime or instruments of crime is more serious than one where the state of mind is recklessness as to the criminal nature of the property. Therefore s 400.3(1), where the amount involved is more than a million dollars and where the offender believes that the property is the proceeds of crime or intends that it will become an instrument of crime, provides for the most serious of the money laundering offences carrying a maximum penalty of imprisonment for 25 years and/or 1500 penalty units." (Emphasis added) 133The High Court of Australia dismissed an appeal from the decision of the Court of Criminal Appeal with no criticism or qualification being made concerning the observations of Howie J set out above: Ansari v R [2010] HCA 18; 266 ALR 446. 134As a general statement, we would, with respect, adopt the observations of Johnson J in his pre-trial decision of 19 August 2010 at [161]-[164]: "[161] When provisions such as the money laundering offences contained in section 400 Criminal Code Act 1995 are enacted, it is clear that care must be exercised by a prosecutor in their use. As the authorities to which I have referred make clear, the money laundering provisions are broad with a capacity to extend to a wide range of circumstances. By their nature, they are likely to be intertwined with other criminal conduct. [162] By the enactment of these provisions, the Commonwealth has determined that criminal offences of this type are necessary to deal with the wide range of conduct which has manifested itself in contemporary society, with consequences adverse to the public interest including the revenue. [163] ... [164] At a Commonwealth level, the money laundering offences in section 400 constitute a 21 st century response to antisocial and criminal conduct commonly with international elements." 135We would simply re-iterate that it is clear from the terms of the legislation that conventional notions of money laundering have been extended to include circumstances where untainted money or property is dealt with in circumstances where it presently has the capacity to become an instrument of crime, and is intended by the person dealing with the property to become an instrument of crime in the future. That is to say the money or property is intended to be used to facilitate the commission of a relevant criminal offence. This novel extension to the traditional concept of money-laundering, we consider, should be given a broad and purposive interpretation. 136We return now to the arguments advanced on behalf of the appellant. We have given careful consideration to each of the arguments advanced by Mr Robberds QC in relation to particulars (b) to (e), but we have come to the conclusion that there is no substance in any of them. The issues posed by the legislation are simple and without qualification. First, did the appellant deal with money or other property? The answer to that question required, in the present matter, an examination as to whether the Admerex shares had been disposed of as alleged by the Crown, and whether the shares could be used to facilitate the commission of a (relevant) offence. 137If the answer to each of those questions was yes, it then became necessary to ask a further question, namely whether the appellant intended, at the time of the dealing with the property, that the shares would become an instrument of crime, that is that they would be used to facilitate the obtaining by Barat Advisory of a financial advantage by deception (s 134.2 of the Code). 138We accept, for present purposes, the preliminary proposition advanced by Mr Robberds that, as a matter of construction, the offence will only be committed where the person intends that, after the disposal of the property (or other dealing with it), the property will be used to facilitate the commission of an offence, that is at some point in the future the property will be used in that manner. 139We are unable to accept, however, the first principal contention that the shares, once disposed of, cannot be used in any way at all. Such a construction of s 400.3(1) would significantly erode the section of its utility. The definition of "deals with money or other property" has been cast in very wide terms to embrace concepts of possession, receipt, concealment and disposal. It is clear that a wide and purposive construction should be preferred to one that effectively robs the legislation of its intended utility. Indeed, in one of the examples advanced by Mr Robberds, this contention was seen to be without substance. If a person sold his home, intending that the proceeds of sale would be used to fund the making of explosives to be used in a terrorist attack, the home itself, although disposed of, plainly could be said to have the capacity to facilitate the commission of the terrorism offence. Equally, the person dealing with the property could be said to intend that it would be used to facilitate the commission of the terrorism offence. 140More significantly, in the present matter, the Admerex shares did not cease to exist upon their disposal. They remained wholly in existence but were now hidden behind the additional curtain of the Temenos shares. They remained capable of use for the future commission of an offence. Whether the property that is disposed of (or for that matter acquired, possessed or concealed) has the capacity to be used for such a purpose will depend upon the nature of the property, the circumstances, and the nature of the offence that is contemplated. We do not consider that this first argument can succeed. In fairness to Mr Robberds, he proffered it as "a minor argument". 141We turn to the second and principal argument advanced by Mr Robberds. Senior counsel listed three steps that Barat Advisory would need to take in order to commit an offence under s 134.2. However, we consider that counsel's analysis omitted a first and fundamental step that would be necessary. This first step required that Barat Advisory, through the appellant, had to have made a capital gain. This in turn would have required: (a) that the shares were in existence; (b) that the appellant on behalf of Barat Advisory, had the capacity to effect a dealing in the shares; (c) the shares themselves had to have a value in excess of their cost base; and (d) the gain in value had to be characterised as a consequence of the nature of the disposal. 142The plain fact is that none of those matters, referable to this first necessary step, could have occurred otherwise than by reference to the shares themselves. In that sense, the shares were critical to the future commission of an offence, and to the intention of the appellant in that regard. Without the shares, a future offence of obtaining an advantage by deception could not occur. In other words, the offence could not have been committed without the shares. 143In that important sense, the shares had the capacity to, and did, facilitate the commission of the relevant offence, if the crown case were accepted. At the preliminary stage where a verdict by direction had been sought, there was, so far as these particular arguments were concerned, ample evidence to show that, the Crown case, if accepted, would entitle the jury to convict in relation to the first count. 144It may be true, as Mr Robberds argued, that there were other facilitators in relation to the commission of the relevant offence but there can be no doubt, in our view, that the shares themselves were capable of being viewed as a facilitator and indeed a fundamental one. 145There has been no judicial consideration of the meaning of "facilitate" for the purposes of s 400.3(1) of the Code. We have already referred to the way in which the trial judge directed the jury on this issue, namely, by ascribing to the word "facilitate" its ordinary English meaning of "make easier". It is relevant to observe that, in a different statutory context, it has been held that where property is instrumental in the commission of an offence, as opposed to incidental in its commission, the property may be said to have facilitated the commission of the offence: see Draper v Police [2009] SASC 264 and the cases discussed therein. This construction lends support to the Crown's argument, in that the shares were the means by which the appellant was able to acquire a capital gain, which was subsequently omitted from Barat Advisory's 2005 tax return. In that sense, the shares were instrumental in the commission of the s 134.2 offence. 146There is no warrant to give the definition of "instrument of crime" a narrow meaning. Nor is there any warrant to give a narrow meaning to the expression "to facilitate the commission of an offence". The entirety of the sentence: "Money or other property is an instrument of crime if it is ... used to facilitate the commission of an offence, etc" ought to be given a wide interpretation. The shares were plainly capable of being used, and, on the Crown case, were intended to be used after their "disposal" to facilitate the commission of a s 134.2 offence. The two questions posed by Mr Robberds must be answered in the affirmative. 147Mr Robberds' third argument, with respect, does not survive careful analysis. Counsel's complaint related to the way in which the Crown had expressed its final submissions to the jury. He argued, no doubt correctly, that the intended use had to be a "use after the shares had been disposed of". Consequently, the circumstances of the swap could not facilitate the commission of the offence. The share swap, Mr Robberds said, could not be an instrument of crime because it was a transaction. It was not property. 148In simple terms, the offence under s 400.3 of the Code is one of dealing with property (property that could be used to facilitate an offence) and in doing so intending that the property will be used to facilitate the commission of that offence. Thus, the intention of the person dealing with the property is critical in proving the commission of an offence under s 400.3. In a criminal trial, intention is commonly demonstrated by the actions of the person in relation to the central activity (for example, in an assault case, striking another person). But a person's state of mind may also be illuminated by his or her actions both before and after the striking. 149The submissions of the Crown at trial correctly recognised that the circumstances and nature of the dealing with the shares in the present matter - the disposal by way of an off market swap - had the capacity to demonstrate the existence of the relevant criminal intention. Further evidence in proof of this intention could be derived from the misuse of the Stichting structures, the possible reasons for their establishment and the appellant's activities at the time of and following the share swap. 150The disposal of the Admerex shares in the present matter had two features that were relevant to proof of the appellant's intention that the shares would be used to facilitate the commission of the s 134.2 offence. First, the share swap created the CGT event which provided the basis for the commission of the future crime. Secondly, it provided a facilitating mechanism for the commission of the offence in that it provided a further cloak or curtain behind which the act of ultimate deception (the lodgement of a return) would be more likely to succeed. It had the capacity to assist the very advantage the deception (by lodgement of the tax returns) was intended to secure. As we have explained, however, the Admerex shares were a critical facilitating factor in that intended criminal pursuit. The manner of their disposal provided evidence, along with other matters of the appellant's criminal intention and also provided a further facilitating measure for the offence itself. In those respects, the appellant intended that the shares would be used to facilitate the s 134.2 offence. 151Accordingly, we conclude that the trial judge was not in error in refusing to direct the jury to acquit the appellant on the first count in the indictment. Nor do we consider that the construction arguments, as reformulated for the purpose of this appeal, have merit. Particulars (b) - (e) to ground 1 have not been established. Particulars (f) and (g) 152These relate to the trial judge's refusal to direct a verdict on count 2. Once again, if accepted, they require that this Count enter a verdict of acquittal. The two particulars refer to submissions made to the trial judge relating to the Crown assertion that on or about February 2005 there had been a disposal of the 48 million Admerex shares so as to be capable of constituting a capital gains event occurring in the financial year ending 30 June 2005. There were two aspects of the submission. The first queried whether there was any evidence to show that there had been an actual disposal of the Admerex shares in February 2005. Secondly, there was a submission that, even if there were evidence that a disposal of the Admerex shares had taken place, the evidence showed that it did not happen in the financial year ending June 2005, but in the following year. 153At paragraph 40 of the trial judge's decision 4 November 2010, his Honour said: "In addition, Mr Robberds QC submitted that there was no evidence that the disposal of the 48 million Admerex shares took place on the 3 rd of February 2005. It was submitted that the evidence demonstrated that the shares were not disposed of until a transfer to First European Finance Investments Limited in September 2005. The effect of this, it was submitted, was that there was no capital gain from the disposal of the 48 million Admerex shares in the tax year ended 30 June 2005 so that the charge contained in the second count was fatally flawed." 154His Honour was satisfied that there was evidence that the disposal of the Admerex shares by means of the share swap on or about 3 February 2005 constituted the disposal of property so as to be capable of constituting a capital gains event occurring in the financial year ending 30 June 2005. 155The Crown maintained before the trial judge (and maintains in this Court) that there was evidence to warrant count 2 being left before the jury. The Crown pointed to the February conversation between the appellant and Goodall - the immediate transfer of one million Temenos shares to Challinor Equities (one of the appellant's Stichting Group Companies) and the appellant's directions to Meisterhans for the immediate disposal of the shares as and from that date. On the other side of the transaction, there was evidence that Goodall appeared to accept, albeit passively, the appellant's "direction" that he was to take one million of the Temenos shares in exchange for 49 million Admerex shares. There was no resistance on his part to the transfer of the Temenos shares for the use of the appellant. Moreover, the Crown pointed to the evidence that later in the year Goodall, in apparent acknowledgment of the deal, arranged for the Admerex shares to be transferred to a third party nominated by him. 156We consider that the trial judge was correct to conclude that there was evidence before the jury sufficient to enable count 2 to be left to the jury for its decision. The evidence, taken at its highest, was capable of sustaining a verdict of guilty: Doney v R (1990) 171 CLR 207 at 215; R v R (1989) 44 A Crim R 404. In our opinion, there was a sufficiency of evidence, if accepted, to enable the jury to conclude that what had taken place between the two men constituted a disposal of a CGT asset because of the change in legal ownership of the Admerex shares on 3 February 2005 (ss 104-110 of the Income Tax Assessment Act ). At the very least, there was evidence to show part performance of such a transaction in that the appellant had taken the Temenos shares for himself and made the Admerex shares available to Goodall. Grounds 2 and 3 157Each of these grounds arises out of the decision by the trial judge on 15 November 2010 (Milne (No 4)). This decision was given, following brief argument, during the course of his Honour's summing up to the jury. 158During the Crown address, the defence, in the absence of the jury, raised issues about certain propositions advanced by the Crown before the jury. This led to submissions being made to the judge as to whether he should give directions on these matters, and if so, what form the directions should take. 159Grounds 2 and 3 relate to two of those matters. Ground 2 asserts that the trial judge erred in failing to direct the jury that they could not find as a fact that the appellant was "the controlling mind" of the five companies unless they were satisfied beyond reasonable doubt that the directors of those companies had abdicated their duties and responsibilities as directors. Ground 3 asserts that his Honour erred in failing to direct the jury that they could not convict the appellant on either count unless they were satisfied beyond reasonable doubt that the transfers of the shares from Barat to the five companies on 11 June 2004 had the attributes of a sham arrangement. 160At paragraph 12 (Milne No 4), the trial judge declined to give the "abdication direction". At paragraphs 8, and 10, in relation to the "sham" contention, his Honour said: "8. The defence submission was that, although the Crown had maintained that it was not contending that the arrangements for the transfer of the Admerex shares from Barat to the five overseas companies on 11 June 2004 was a sham, the way in which the Crown advanced its case before the jury in submissions was, in reality, a submission that the arrangements constituted a sham. It was submitted that a consequence of this was that the attributes of a sham agreement (as referred to in civil cases) became necessary factual matters which the Crown must establish in this case. Reliance was placed upon passages in the decision of the High Court of Australia in Equus Corp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471 and Raftland Pty Ltd v Commission of Taxation [2008] HCA 21; 238 CLR 516 ... 10. It is the case that the word "sham" is not being used in the presence of the jury and I do not propose to inject the term into the trial during the summing up. The real issue for determination concerns a direction which ought to be given to the jury by reference to what the Crown intends happen in this case." 161Mr Robberds took this Court in considerable detail to the documents bearing on the June 2004 transfer of the Admerex shares to the Stichting Group companies. Particular focus was placed upon the documentation which Mr Meisterhans had signed. In particular, the Deeds of Charge signed by Mr Meisterhans would have brought home to him, counsel suggested, the structure of the five companies and the structure of the five Stichtings. In particular, it would have brought home the fact that the five companies of which the Stichtings were the sole shareholders were intended to acquire the legal and beneficial interests in the Admerex shares, over which they were to provide charges to secure the financial obligations of the Stichtings pursuant to the Master Investment Futures Agreement. 162Accordingly, if Mr Meisterhans knew, by agreement with the appellant or otherwise, that the appellant was to retain the beneficial ownership, he would also realise that the whole object of the Stichting structure would be frustrated. He would realise, Mr Robberds argued, that the warranties as to ownership in the Deeds were false. Consequently, the Crown case required a direction to the jury of the kind sought. 163We agree with the Crown submission, however, that no such direction was necessary. Any question concerning Mr Meisterhans "abdicating" his duties and responsibilities as a director was immaterial to the elements of the offence in count 1 and would have constituted an unnecessary distraction in the trial. 164It is true that Mr Meisterhans was a director of each of the foreign companies and was responsible for establishing the accounts at the three banks which held the Admerex and then the Temenos shares. However, Mr Meisterhans had no beneficial interest or equity in the assets held by the foreign companies, nor in the shares in the bank accounts of EFG and SwissFirst. 165Mr Meisterhans was a partner in the Swiss Financial Services Company Sinitus. The evidence showed that he, through Sinitus, had at an earlier time provided an agency type service in relation to another company controlled by the appellant, Clairmont Holdings and Finance Limited. This had been achieved through a formal Mandate Agreement which provided that Sinitus would act exclusively on written instructions from the appellant for an annual fee. Although there was no such formal agreement in evidence in relation to the role of Mr Meisterhans in the Stichting arrangements, the circumstantial evidence suggested that his practical function in the present matter was of the same character. Ms Harley described him as a "fiduciary" (Transcript 160-161). He acted as an agent carrying out the appellant's instructions. 166There were a number of matters that demonstrated that the appellant was the controlling mind of the five companies. This is particularly so in relation to the sale of Admerex shares held within the Stichting Group Companies. There is no need to detail this evidence at this point. It will arise for further discussion in relation to other grounds of appeal. It is sufficient to note that, under the Deeds of Charge executed in favour of the appellant over the assets of the five companies, the companies could not deal with the Admerex shares without the appellant's written consent. The appellant was identified in documents as the beneficial owner of the assets held in the EFG and SwissFirst accounts, and, as we shall mention later, there was evidence to suggest that the appellant directed Mr Meisterhans in relation to selling both the Admerex and Temenos shares. There was also evidence as to the appellant's directions to Mr Meisterhans in relation to the disbursement of the proceeds of the sale of both Admerex and Temenos shares. There was no evidence that the Stichting Groups acted independently of the appellant, or of one another. 167The central issues at trial were, first, whether Barat retained the beneficial ownership of the Admerex shares after June 2004, and secondly whether it disposed of the beneficial ownership in February 2005 by virtue of the share swap. As we have said, the direction sought would have been a complete distraction from these central issues and, in any event, did not relate to a circumstantial fact that itself required proof beyond reasonable doubt. Nor did the suggested direction relate to matters in proof of the elements of each offence. The trial judge, however, gave a very detailed direction to the jury on the "controlling mind" issue. No complaint has been made as to the adequacy of this direction. His Honour said (AB Vol 3 228-229): "It will be clear to you that a critical issue in the trial is whether the beneficial ownership of the 55 million Admerex shares remained with Barat Advisory after 11 June 2004, or whether it passed to the five overseas companies together with the legal interest in the shares. The Crown submits the beneficial interest in the shares remained with Barat. The defence submits, by reference to the five share transfer documents, that both the legal and beneficial interests in the shares passed to the five overseas companies on 11 June 2004. The Crown submits that the accused was the controlling mind of Barat and was also the controlling mind of the five overseas companies. In this way, the Crown submits that the accused was effectively dealing with himself. It was submitted that the accused intended that there was not to be any transfer of beneficial ownership to the five overseas companies, but that the beneficial ownership would be retained by Barat. The defence submits that you would not be satisfied beyond reasonable doubt that the accused was the controlling mind of the five overseas companies. The evidence reveals that the directors of the five overseas companies were Mr Meisterhans and Gold Coast Directors Pty Ltd. The Crown contends that Mr Meisterhans was acting, in effect, as the agent of the accused so that you should conclude that the accused was the controlling mind of the five overseas companies. The defence submission is that you would not be satisfied beyond reasonable doubt that Mr Meisterhans agreed to allow the accused to become the controlling mind of the five overseas companies. Having set the scene and reminded you of the arguments, I come to this particular direction .... In the circumstances of the case, it is necessary for the Crown to prove beyond reasonable doubt:- (a) the accused was the controlling mind of each of the five overseas companies, so that the intention of the accused was the intention of each of the five overseas companies, and (b) the intention of the accused, as the controlling mind of each of the five overseas companies, was that only the legal title and not the beneficial title, to the 55 million Admerex shares was to be transferred to the five overseas companies, those companies would hold the shares on trust for Barat. Because of the significance of the controlling mind issue in the case, those are the things which it is necessary for the Crown to prove beyond reasonable doubt. As will be clear to you, this issue relates to the beneficial ownership issue in the trial." 168The clarity and focus of this direction will be apparent. We consider that it was quite unnecessary for his Honour to give the additional direction sought. 169We take the same view in relation to the direction referred to in ground 3 of the appeal. It was no part of the Crown case that the transactions were a sham. They were clearly established bone fide by Ms Harley in the belief that they would provide a genuine tax deferral for some ten years for the benefit of the appellant and Barat. The central issues at trial required the Crown to satisfy the jury that the intentions of the appellant in relation to the operation of the structures were dishonest. It did not require an attack on the structures themselves. The Crown sought to do this in the overall context of the circumstances both before and after the transfers rather than by the distraction of a consideration of the law relating to "sham". We agree with the Crown that the relevant issue was whether or not there had been a transfer of beneficial ownership in the shares, not whether the transaction was a technically, under tax law, a sham. The directions given by the trial judge focused upon this central issue. His Honour was correct in refusing to give the direction sought. Ground 6 170Ground 6 alleges that there was a miscarriage of justice in the trial. Five particular matters are relied on and these are: (i) The Crown alleged for the first time after it had closed its case and thereafter submitted to the jury that the appellant was the controlling mind of the five companies. (ii) The trial judge erred in failing to direct the jury that they could not convict the appellant on either count unless they were satisfied beyond reasonable doubt the transfer of the shares from Barat Advisory to the five companies on 11 June 2004 had the attributes of sham agreements. (iii) The Crown did not call as a witness Mr Meisherhans, who was a material witness. (iv) His Honour erred in failing to direct the jury that it could not find as a fact that the appellant was the controlling mind of the five companies unless they were satisfied beyond doubt that the directors of those companies had abdicated their duties and responsibilities as directors. (v) The submissions made by the Crown in its final address to the jury concerning "instrument of crime" referred to matters which were irrelevant, distracting and prejudicial. 171It will be apparent that a number of these particulars have been examined, albeit in a different context, earlier in these reasons. Accordingly, we shall deal with them in a relatively brief fashion. 172Section 6 of the Criminal Appeal Act sets out the grounds on which an appeal may be allowed against conviction. One of the "limbs" ( DAO v R [2011] NSWCCA 63 at [44]) is the circumstance that there has been a miscarriage of justice. 173If any of the three limbs in the section is established, s 6(1) provides that the Court "shall allow the appeal" subject to the proviso that, notwithstanding that the Court is of opinion that the points raised by the appeal "might be decided in favour of the appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". 174It has been said that the "miscarriage" ground is a dragnet or residual provision: TKWJ v The Queen (2002) 2012 CLR 124 per McHugh J at [72]. Prior to the advent of criminal appeals statutes a "miscarriage of justice" was any departure from a trial according to law: Weiss v The Queen (2005) 224 CLR 300 at [18]. It may be accepted that the term "miscarriage of justice" may encompass any one of a very wide variety of departures from a proper conduct of a trial: Nudd v R (2006) 80 ALJR 614 per Gummow and Hayne JJ at [24]. Inquiry about miscarriage must be an objective inquiry and the ultimate question is whether the act or omission relied upon resulted in a miscarriage of justice: Nudd at [27]. 175The substance of particulars (ii) and (iv) have already been addressed. We do not accept that his Honour's "failure" to give the two directions sought by the defence constituted an error in process. Accordingly, there was no miscarriage of justice in relation to either of these two matters. 176In relation to particular (i), we do not accept that the concept of the appellant being "the controlling mind" of the five overseas companies was a matter introduced for the first time after the Crown case had closed. We have had regard to the Crown case statement, to the Crown opening before the jury and to the cross-examination of Crown witnesses, especially Ms Harley. We conclude that, as the Crown argued on this appeal, it was always central to the prosecution case that the appellant controlled all aspects of the establishment and conduct of the Stichtings and the foreign companies, and of the disposal of the Admerex shares transferred to the foreign companies. To the extent that Ms Harley was involved in the establishment of the overseas arrangement, it was always the Crown case that she did so on the appellant's instructions. It was always the Crown case that the transfer of the Admerex shares to the Stichting groups was for the benefit of the appellant. Similarly, the prosecution case consistently maintained that Mr Meisherhans acted as the appellant's agent and acted on his instructions or the instructions of Ms Harvey who was the appellant's lawyer. 177We do not consider that any error in process occurred in relation to this particular. We do not accept that the appellant lost the opportunity to cross-examine Ms Harley on the issue of the appellant's control. Ms Harley was effectively cross-examined by Mr Robberds to the effect that she genuinely believed that the legal and beneficial ownership of the shares had passed from Barat Advisory to the overseas companies in mid June 2004. We do not consider that a miscarriage of justice has occurred. 178In relation to particular (iii), we do not consider that the absence of oral evidence from Mr Meisterhans resulted in any miscarriage of justice. In his closing address to the jury, Mr Robberds submitted that, without oral evidence from Meisterhans, the jury simply could not be satisfied beyond reasonable doubt that he had abdicated his duties as a director by agreeing with the accused that the beneficial ownership of the Admerex shares would remain with Barat Advisory. At AB Vol 3 SU 33, his Honour told the jury: "During the course of the defence closing submissions, reference is made to the fact that the Crown has not called Mr Urs Meisterhans to give evidence. You can take the fact that there has been no evidence from Mr Meisterhans into account when you decide whether the Crown has proved the guilt of the accused. I am not inviting you to guess what Mr Meisterhans would have said if he had been called. You must not do that at all. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, a jury is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused's guilt." 179No objection was raised to this direction by the trial judge. It was repeated at summing up: AB Vol 3 SU 81. 180Although not decisive on the point, we note that there had been an earlier pre-trial application in which the defence had sought an order that Mr Meisterhans be brought from Switzerland to give oral evidence at the trial. The trial judge had refused this application primarily on the basis that, based on recent amendments to the Foreign Evidence Act 1994, foreign business records would be admissible in a trial without the need for oral evidence from overseas witnesses in relation to those records. In general terms, the documentary material was, in any event, placed before the jury as a result of agreement between the Crown and defence legal teams. 181The final matter relates to submissions made by the Crown in its final address to the jury. In relation to count 1, the Crown submitted that the actions of the appellant between June 2004 and September 2005 demonstrated his intention to use the Admerex shares as "an instrument of crime". In these submissions, the Crown referred to the establishment of the Stichtings and the overseas companies as "a form of screen behind which the shares might be disposed of with limited risks of detection". The Crown also submitted that the division of the shares into small parcels and their movement offshore by way of transfer to overseas companies "assisted the screening of the ultimate swapping of the shares with the Temenos shares". It also assisted, in that sense, in getting the funds from the sale of the Temenos shares back into Australia with a limited risk of detection which might assist in convincing the accountants to lodge the returns without a reference to the disposal of the Admerex shares. 182In its submissions to the jury, the defence took issue with each of these matters. At SU 167, the trial judge summarises the defence submissions which essentially highlight the evidence of Ms Harley as to the genuineness of the Stichtings arrangement and the legitimacy in law of the intention to defer tax for some years. Moreover, the defence submissions highlighted, once again, the transfer of the legal and beneficial ownership to the five companies, as expressed in the documentation and in Ms Harley's evidence. 183In its oral submissions before this Court, Mr Robberds clarified that his complaint did not extend to arguing that the Crown was not entitled to raise the matters it did. Rather, he argued that these were only relevant to the question of the appellant's intention. They were not relevant, counsel submitted, to the question whether, after the alleged share swap on 3 February 2005, the 48 million Admerex shares could become an instrument of crime. 184We do not agree with this submission. It revisits the ground 1 particulars which raised for consideration the proper construction of s 400.3 of the Code . For the reasons we have given earlier, we would not hold that the matters referred to by the Crown in its arguments before the jury were irrelevant to the establishment of the offence in s 400.3 of the Code . The capacity of the shares to become an instrument of crime, and the appellant's intentions as to whether they would be so used, were inter-related matters. Moreover we do not consider that the Crown's submissions at trial raised any aspects of prejudice or unfairness to the appellant. As we have said, Mr Robberds, in his submissions to the jury, had little difficulty in advancing persuasive arguments to the contrary even though, as it happened, the jury apparently accepted that the Crown had made out its case beyond reasonable doubt. 185We conclude that none of the matters relied on in ground 6 has been established. Grounds 4, 5 and 7 186These grounds assert that the verdicts of the jury were unreasonable. In relation to count 1, it is said the verdict was unreasonable because, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that on 3 February 2005 the appellant, on behalf of Barat, disposed of the Admerex shares by way of a swap. In particular, it was again asserted that it was not open to the jury to be satisfied beyond reasonable doubt that in 2004 the beneficial interest in the Admerex shares had not been transferred to the five overseas companies. 187In relation to the second count, the verdict of the jury was claimed to be unreasonable for the same reasons. If Barat had passed the beneficial ownership in June 2004, the share swap in February 2005 was incapable of being a disposal for the purpose of the charge in the indictment. Additionally, the verdict was unreasonable on the basis that it was not open to the jury to be satisfied beyond reasonable doubt that there had been, in any event, a change of ownership of the 48 million Admerex shares in the financial year ended 30 June 2005. Any disposal, it was argued, occurred in the following financial year. 188These grounds require an appreciation of the broad nature of both the Crown and defence case. They require also some attention to the detail of the trial, including a number of the competing arguments, although we propose, in that regard, to outline those matters in summary form. 189We have earlier set out the broad nature of the Crown case. It is unnecessary to repeat the detail here. An examination of the conduct alleged in relation to counts 1 and 2 demonstrated, according to the trial judge in his remarks on sentence, two distinct periods of dishonesty, albeit with some degree of overlap. The underlying intention of the appellant throughout, according to the Crown case, was to avoid paying tax on any capital gain. In the first period, the intention was to use the Admerex shares in a criminal manner. The second period involved the lodgement of a tax return, accompanied as it was by associated dishonest behaviour and deceit in the appellant's dealings with his accountants. 190The Crown case relied on the flow chart (exhibit A). This graphically demonstrated the involvement of the appellant in a controlling capacity throughout the entire period between 2003 to 2006. The Crown case, as we have said, critically raised two issues: (a) Did Barat Advisory retain beneficial ownership of the shares after the transfer of the legal ownership in June 2004, with the appellant being throughout the controlling mind of all the relevant entities, and with Mr Meisterhans acting effectively as his agent in carrying out his instructions? Put in another way, was it the appellant's intention to disregard the strict legalities of the Stichting Group structure so that he could, when the opportunity presented itself, dispose of the Admerex shares, thereby making a capital gain and keeping it without paying tax? (b) Was there a disposal of Admerex shares on or about 3 February 2005 so as to constitute a CGT event in the financial year ending 30 June 2005? 191These two questions were interwoven: if Barat Advisory did not retain the beneficial ownership in 2004, there could not have arisen a CGT event in February 2005. If that were the situation, the verdicts on count 1 and 2 could not stand. There was, however, as earlier indicated in relation to the ground 1 particulars, a further issue that focused on count 2. This was whether the conversation between the two men on 3 February 2005 had evidenced a contract for the disposal of the shares. There was a related question whether the September 2005 "disposal" of the shares by Mr Goodall to a third party meant that any capital gain event occurred in the 2006 financial year rather than in the preceding financial year. This second question, however, only arose if the beneficial ownership of the shares had been retained by Barat Advisory at the time of the June 2004 transactions. 192The Crown case had been that the appellant, at all relevant times, was deeply focused upon the issue as to how he could avoid paying tax on the Admerex shares. The Crown case asserted that, in the appellant's mind, the principal reason for the establishment of the overseas Stichtings and their associated companies was a need to defer tax and, if it could be achieved, to avoid the payment of Capital Gains Tax altogether. It was in this sense that the Crown argued at trial that the appellant had been guilty of dishonesty throughout the two periods of activity we have described, even though the dishonesty took different forms at different times. 193The defence case, in some respects, operated in something of a parallel universe to all this. Throughout the trial, defence counsel had suggested that what was happening was altogether different from the perspective advocated by the Crown. This became a point of fundamental difference between the parties, a difference which it was necessary for the jury to resolve. 194The focal point of the defence case was this: the 2004 arrangements involving Ms Harley, Mr Meisterhans and others came about as a consequence of the appellant's plans and preparation for corporate activity intended to bring about the takeover of Temenos. This was to be achieved by utilising the significant shareholding held by Goodall in that company. The defence urged the jury to find that in March 2004 Ms Harley had examined the takeover law in Switzerland at the appellant's request because he was giving consideration to a possible takeover by Admerex of Temenos. The appellant placed particular reliance on the evidence of Ms Harley where she agreed in cross-examination that the shares were transferred to the five overseas companies "as part of getting ready to do something great with Temenos". This became the central defence theme before the jury and, indeed, in this appeal. 195Mr Robberds outlined a series of facts which he suggested supported this proposition. For example, in May 2004 the appellant met Mr Goodall in Singapore. At this meeting they decided to go ahead with their pursuit of Temenos. To that end, Mr Goodall telephoned a Mr Koukis who was the chairman of and a major shareholder in Temenos. Arrangements were made for the three men to meet in Geneva in the week commencing 7 June 2004. The defence case was that the reason for this proposed meeting was to enable the appellant and Mr Goodall to explore the possibility of coming to some arrangement with Mr Koukis so that Admerex could obtain the benefit of his shares and thus increase the possibility of a takeover of Temenos. 196The appellant returned to Australia and, between 31 May and 6 June 2004, with the assistance of Ms Harley, the five Stichtings were established with the intention that they would hold one share each in five newly incorporated companies. These were incorporated in St Vincent and the Grenadines on 3 June 2004. The defence case was that the urgency in these arrangements arose because of the need for the structures to be in place before the appellant saw Mr Koukis in Geneva on 7 June. 197Ms Harley had asked Mr Meisterhans, with whom she had worked before, to incorporate the five overseas companies. On 6 June the appellant and Ms Harley flew overseas and, during that week, met employees of Citco to finalise arrangements. Prior to leaving Australia, Ms Harley told the appellant that if the 55 million Admerex shares were sold by Barat to the five overseas companies, he would no longer have any beneficial interest in the shares. She told him, however, that he would have a financial interest pursuant to the Master Investment Futures Agreement and protected by a Deed of Charge. 198It was common ground that on 11 June 2004 Barat Advisory sold and transferred the 55 million Admerex shares to the five companies, each of the companies receiving a specified number of those shares. Although no money was paid, it was contemplated that there would be loans in place in the nature of vendor finance. 199Ms Harley gave evidence that she sought to achieve, by the documentation she had prepared, the consequence that the beneficial interest in the shares would be transferred to each of the five companies. She said that, as far as she was concerned, she had successfully achieved that objective. Thus it was the defence case, first, that the purpose of establishing the overseas structures was to enable the Admerex shares to be used so that "something great" could be done with Temenos, namely the advancement of a possible takeover or a merger. Secondly, that the beneficial ownership of the 55 million shares had, in any event, passed to the five overseas companies and that accordingly the events of February 2005 could not have resulted in a CGT event. 200An alternative aspect of the defence case was that, even if the jury were to accept that the beneficial ownership of the Admerex shares had been retained by Barat Advisory after June 2004, the so-called "share swap" did not pass the beneficial ownership in February 2005. Rather, if that event occurred, contrary to the defence case, it did not occur until September 2005 when Mr Goodall arranged for the transfer of the shares to a third party. 201It is necessary to say something in a little more detail in the context of the evidence relied upon for the purpose of the more detailed defence submissions. These highlighted a number of matters that may be summarised as follows: (a) All of the documentation prepared by Ms Harley asserted in express terms that the beneficial ownership of the Admerex shares was passed or had been passed: for example, the terms of the transfers themselves, the Master Futures Investment Agreement and each of the Deeds of Charge. (b) Given the evidence as to the integrity of Ms Harley and her favourable experience with Mr Meisterhans in the past, if the beneficial and legal ownership of the shares did not pass in June 2004, it must have been the situation that the whole structure was a sham and Meisterhans, and the other persons undertaking duties in relation to the Stichting Groups, must have entirely abdicated their responsibilities and duties. (c) While there had been certification tendered before the jury in which the appellant was stated to be the beneficial owner or ultimate beneficial owner, these were of no value and were completely explained by the evidence of Ms Harley. She had said that, in the case of Citco and the EFG Bank, she had effectively been placed in a situation where the certification were required even though she did not agree with their contents. It was "non-negotiable". There was no suggestion during the trial that Ms Harley was not fully truthful about these matters. Indeed, there was no attack upon her integrity in any real sense at all. (d) Mr Robberds submitted, both before the jury and this Court, that the "most important evidence" in the case was that of Ms Harley. She had prepared the documentation in complete good faith; she believed that it passed the beneficial ownership, and she had explained to the appellant various aspects of the proposed structure that would govern the transfer of the Admerex shares. She explained, for example, that the downside of the arrangement would be that the appellant "would cease to have ownership of the shares". If he went ahead with the arrangement, he would not have any beneficial ownership of the shares but his "interests would be protected through the Master Investment Futures Agreement and the Deeds of Charge". She told him that if he went ahead with the proposal the consequences would be that "the shares would not be Barat Advisory shares any longer". (e) In relation to the conversation on 3 February 2005, it was Goodall's evidence that there was no share swap because he "denied" that he agreed to the swap - "he did not accept the 48 million Admerex shares". On the basis of this evidence, the change in ownership did not occur until the end of September 2005 when Goodall arranged for the transfer of the shares. (f) Mr Meisterhans, during the period July 2004 to February 2005, had made a number of investment decisions in relation to the affairs of Challinor Equities. During this period he bought and sold other shares, currency, and invested money into fiduciary deposits. He made and repaid loans. The defence pointed to evidence that the sale of the Admerex shares during the latter half of 2004 resulted in the proceeds being placed in the Challinor Equities account. Apart from a payment for legal fees, these amounts remained in the account until later in 2005. 202It is necessary now to briefly summarise the Crown response to the defence case and its response to many of the arguments we have briefly touched upon. Once again, we shall undertake this task in summary form. The thrust of the Crown response may be stated as follows: (a) The Crown accepted that there may have been, and undoubtedly was, some parallel corporate activity in 2004 involving the use of the Temenos shares owned by Goodall. However, that activity did not affect the appellant's intention to take steps in order to minimise, defer and, as it turned out, to avoid CGT on the disposal of the 55 million Admerex shares issued in April 2004 at no real cost to Barat Advisory. (b) The flaw in the defence case was that there was no demonstrable connection between any Temenos takeover activity and the transfer of the Admerex shares in five parcels to the foreign companies owned by the Stichtings. Nor was there any connection between Temenos takeover activity (such as it was) and the swap of the 48 million Admerex shares for Goodall's one million Temenos shares. It was never suggested, for example, that the Admerex shares acquired by the appellant through Barat Advisory in satisfaction of the original debt had any significant part to play in any proposed takeover or merger with Temenos. (c) The reference to Ms Harley's evidence in which she agreed with the proposition that shares were transferred to the five companies "as part of getting ready to do something great with Temenos" (whatever that might mean) carried negligible weight in the light of the more detailed evidence of the sequence of events concerning the failed venture involving Temenos. Importantly, however, this prospect had never involved the Admerex shares owned by Barat Advisory. In other words, the Crown response to the Temenos-based case sought to be made by the defence was that, upon examination, it had no substance whatsoever. (d) The Crown examined the evidence relating to Mrs Harley's advice. It suggested that the evidence clearly showed that the appellant had consulted Ms Harley for tax advice, not for corporate takeover advice, prior to her recommendation to set up the Stichtings. She had eventually given the appellant advice in writing in a draft document dated 4 August 2004. It was 18 pages in length and almost entirely dedicated to taxation issues concerning the most tax effective means of disposal of the Admerex shares. True it was that it contained a relatively small section dealing with compliance with the requirements for substantial shareholder notices. This, however, was in the context of an analysis of the "associate" provisions in the Income Tax Assessment Act . It had no express connection with any takeover activity concerning Temenos. (e) The prosecution case throughout was that, whatever Ms Harley's intentions were, she had been deceived by the appellant as to the basis upon which the shares would be traded. For example, the tax advice recited instructions that the Stichting Group Companies would acquire the Admerex shares from the appellant "on an independent basis". It recited that they would have acquired "our clients shares in Admerex from any entity if their expectations as to price were met". The Crown submitted that this was simply not the case. The Stichting Group of Companies were specifically set up in the context of the appellant "off loading" the Admerex shares to them. There was never any evidence of independent advice, nor was there evidence of the prospect of the purchase of the Admerex shares from any other vendors. Similarly, the Crown argued that Ms Harley's recited instructions in her advice that each of the foreign companies would "make separate and independent decisions in relation to the holding and disposal of the share parcels etc" demonstrated the same point. This was never going to be the case. The Stichtings and the foreign companies were directly controlled by the appellant. All decisions were made by him concerning the acquisition and disposal of the Admerex shares collectively, rather than by reference to any considerations or individual decisions made independently by each Stichting and foreign company. (f) That the purpose of the appellant consulting with Ms Harley, and that the object of her suggested arrangements, were tax driven was supported by the detail of her firm's bill of costs for the relevant period. It was plainly not the case that these arrangements related to a takeover. Clearly the entire situation was "tax driven". (g) The Crown did not dispute Ms Harley's evidence that she and Mr Meisterhans had been, in effect, obliged to provide both Citco and the EFG with the bank certifications as to beneficial ownership. However, the Crown submitted before the jury that this might properly be seen as a recognition of the fact that all the arrangements were for the appellant's ultimate benefit. The certifications provided material that went circumstantially to the issue of the appellant's de facto control in the period between June 2004 and the end of the financial year 2005. (h) The evidence that the beneficial ownership remained with Barat Advisory and hence under the control of the appellant included the following. First, the shares, after transfer, were controlled through five EFG Swiss bank accounts established by Mr Meisterhans for which he had identified the appellant as the beneficial owner. Secondly, the early sales of the Admerex shares commenced on 1 July 2004 and continued until 18 November 2004. On that date the appellant sent an email to Mr Meisterhans directing him to "stop" because the quantities advised were "putting pressure on the market and bringing the price down". Thirdly, Mr Meisterhans acquiesced in this direction. Fourthly, between those dates over 6 million Admerex shares were sold out of the EFG bank account in the name of Challinor Equities, and on 13 July 2005 some $509,000 from the proceeds of sale was transferred to a UBS Zurich account also in the name of Challinor Equities. From this account, in 2005, payments were made to the CBA account in Australia in the name of Barat Advisory, and other payments were made for the personal benefit of the appellant. The Crown submitted that this evidence could easily satisfy the jury that the appellant had been the beneficiary from the outset of the proceeds of the initial sale of the 6 million or so Admerex shares sold between July and November 2004. Moreover, it was argued that the swap itself and the subsequent dealings with the proceeds of the sale of the Temenos shares demonstrated that it was the appellant who made the initial decision that the shares would be exchanged. He took all the initiatives in this regard, and he was the person behind Mr Meisterhans in causing all the subsequent arrangements to be made. There was also the fact that, in the events that happened, the appellant completely ignored the obligations imposed on him under the careful documentation presented by Ms Harley. The appellant ignored the obligation to make an annual payment in each year in respect of the shortfall equivalent to 10 per cent of the committed capital of the company in each case. He ignored the elaborate provisions relating to the obligations of the Stichtings on the termination date of 1 July 2005. Indeed, there was no effort made to wait for the termination date before any payment was made by each company to the Stichting. No effort was made to calculate the amounts payable in accordance with the terms of the agreements. The Crown submitted that, as soon as the swap was made, the Temenos shares were sold off and the proceeds returned ultimately to Barat Advisory's accounts without any regard whatsoever to the obligations of the Stichting structure. Effectively, the appellant tore up Ms Harley's advice and ignored her careful arrangements. (i) Finally, the Crown disputed the interpretation of Mr Goodall's evidence that was said to deny the existence of a CGT event. Reference was also made to emails passing between Mr Meisterhans and Ms Harley which confirmed that a contract for the swap had taken place on 3 February 2005. 203We turn now to resolve these competing submissions. 204The task of the Court of Criminal Appeal in an "unreasonableness" appeal has recently been restated by the High Court of Australia in SKA v R [2011] HCA 13; 85 ALJR 571. In the plurality judgment of French CJ, Gummow and Kiefel JJ, it was stated at [11]-[14]: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R (1994) 181 CLR 487 at 493 by Mason CJ, Deane, Dawson and Toohey JJ: 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. 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R ( 2002) 213 CLR 606 at [58], McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 T he starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say (at 494): In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. .... 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act , by applying the test set down in M and restated in MFA , the court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality" ( Morris v R (1987) 163 CLR 454 at 473). In M , Mason CJ, Deane, Dawson and Toohey JJ stated (at 492-493): 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). 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'." 205In the present matter, having regard to the grounds of appeal relied on by the appellant, it is this court's task to make an independent assessment of the whole of the evidence, paying special attention to those matters relied upon by the appellant in its submission, to determine whether the finding of guilt by the jury can be supported. 206In making it own assessment, this Court must, however bear in mind the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and, in that regard, the jury will have had the benefit of having seen and heard the witnesses: M v R (1994) 181 CLR 487 at 493. The only witness whose credit or reliability was attacked was Mr Goodall. We bear in mind this qualification in relation to our examination of his evidence. 207We have given careful consideration to the submissions advanced by Mr Robberds QC but we have concluded that, in our assessment, the verdicts of the jury were not unreasonable. We shall briefly state our reasons. 208Although the defence sought to place considerable reliance on Ms Harley's evidence, we do not consider it carries the weight sought to be attributed to it. There can be no doubt that Ms Harley acted bone fide in establishing a tax deferral structure that required, for its effective operation the transfer of the legal and beneficial ownership of the Admerex shares. There can be no doubt that Ms Harley genuinely believed that the scheme she organised and arranged had achieved that result. We do not accept, however, that the scheme was driven by Ms Harley or that it was her initiative. Nor do we accept that its primary purpose, in the appellant's mind, was to enable the appellant "to do something great with Temenos". 209It is true that in March 2004 Ms Harley sent an email to the appellant providing advice concerning the takeover law applicable in Switzerland. However, the appellant's attendance upon Ms Harley shortly before early June 2004 related to the 55 million Admerex shares. Although pushed in cross-examination by Senior Counsel for the appellant, Ms Harley resisted the notion that she had been the person driving either the advice or the transaction. At transcript 168 Ms Harley said: "I didn't tell him how it should be done. That is, um, I was asked to give some input in terms of how the investment could be structured on the basis that it was quite likely that a buyer for the shares would not be an Australian entity and there would be a value to such a person, buyer, if they could buy it in a way which didn't trigger some corporation issues or taxation law issues. But I was not driving the investment in that way ..." 210Earlier she had told the Crown Prosecutor, concerning her advice, that the appellant's view of the company was that in the future it would be of "greater value" than it was at the time of their discussion. She discussed structuring the investment "so as to on the one hand have tax advantages, or at least not tax disadvantages, but also to prepare the share parcels for sale to someone who may not be an Australian resident" (Transcript 115). The advice, in short, was that the appellant should transfer the shares to an off shore entity that was not an entity connected with the appellant, and that he should continue to have a financial interest in the assets without having an ownership interest (Transcript 115, 25-30). It was in that context that the use of a Dutch entity called a Stichting was discussed. 211We have [at 37 above] provided a summary of Ms Harley's advice to the appellant. We should repeat the thrust of it here. Ms Harley advised: (a) there would be tax payable on the initial disposal of the shares, but during the term of the arrangement there would be no tax liability; (b) the appellant would not be entitled to any asset of any Stichting Group until after the determination of the Stichting Group structure; (c) for both company law and taxation purposes, neither the Stichtings nor the Stichting Group companies were associated; (d) none of the Stichting Group companies was required to lodge a substantial share holder notice and subsequent disposal of Admerex shares by the Stichting Group companies would, so long as Admerex remained listed on the Australian Stock Exchange, be free of Capital Gains Tax; (e) any payment the appellant would receive upon the termination of the Stichting Group structure would be subject to Capital Gains Tax in Australia if that payment represented a capital gain on the value of the assets which had been held in that Stichting Group; and (f) the Stichting Group companies were required to act independently of the appellant and independently of each other. 212Contrary to the submissions of the appellant, it seems overwhelmingly to be the case that the major thrust of Ms Harley's advice was tax driven. This appears plainly enough from the terms of the advice itself (Exhibit C1) and from the firm's Bill of Costs for the relevant period. The advice was some 18 pages in length. As the Crown submitted, it was almost entirely devoted to issues related to the most tax effective means of disposal of the Admerex shares. It is particularly significant that no part of the advice had any express connection with any takeover activity concerning Temenos. The topic was simply not mentioned. There was a relatively brief section dealing with compliance with the requirements for substantial shareholder notices. This was, however, in the context of an analysis of the "associate" provisions in the Income Tax Assessment Act. The Bill of Costs contains some nine items relating to "tax advice" during the period 7 June to 11 June 2004 when the Stichtings arrangements were put in place. There is no reference to any other type of advice being given during that period. There is no mention of any proposal to takeover Temenos. 213It cannot be gainsaid, however, that there was some evidence suggesting a possibility of some parallel corporate activity in 2004 involving the use of the Temenos shares owned by Goodall. In his evidence, Mr Goodall agreed that he had arranged for the appellant to meet Mr Koukis in Geneva but he was emphatic that there was no established plan for a takeover or merger. Rather, he said, this was simply a preliminary meeting well prior to any takeover discussions. There was no tangible outcome to the meeting. The concept remained on foot but it was "still in the embryonic stage" (Transcript 247). 214As was submitted, the weakness in the defence case was that there was no real connection between the Temenos takeover possibility and the transfer of the Admerex shares to the foreign companies owned by the Stichtings. Nor was there any connection between "doing something great with Temenos" and the swap of the 48 million Admerex shares for Mr Goodall's 1 million Temenos shares. There was no evidence to suggest, for example, that the Admerex shares acquired by the appellant through Barat Advisory in satisfaction of the original debt had any significant part to play in any possible takeover or merger with Temenos. Eventually, the possibility of a Temenos type venture failed completely, but at no time did it feature or rely upon the Admerex shares owned by Barat Advisory. 215This conclusion is also made clear when regard is had to the swap of the Admerex shares for the Temenos shares on 3 February 2005. This transaction was, as the Crown argued, revenue neutral in that the respective parcels of shares had approximately the same value. There was, it must be said, a much more compelling explanation for the swap, namely that it was the final step in a scheme which had included the establishment of the Stichting Group structure for the purpose of diverting attention from the Admerex shares and thus enabling their ultimate disposal in a manner that would help avoid the detection of a capital gain. 216The issue as to whether the appellant intended to retain the beneficial ownership of the shares is clearly resolved in the Crown's favour when regard is had to his activities after June 2004. It is these circumstances which compel the conclusion that the appellant intended to and did retain the beneficial ownership. There is no doubt that the concepts of a financial interest and a beneficial interest in the shares involve a real distinction. The appellant's actions, however, ignored that distinction. Of special significance were those actions which demonstrated that the appellant did not regard himself as bound by the advice he had been given by Ms Harley. Contrary to the defence submissions, Ms Harley's arrangements represented a genuine structure and could not be classified as a sham. The appellant's actions, however, demonstrated that he intended to ignore the structure and intended to treat himself (through Barat Advisory) as the beneficial owner. 217It is necessary to digress to say something briefly about the role of Mr Meisterhans. The evidence from Ms Harley was that she had introduced the appellant to Meisterhans in June 2004. However, it is clear that the appellant had earlier commercial dealings with Mr Meisterhans. They were not without significance. The arrangements between Sinitus and Clairmont in 2003 included the Mandate Agreement. By its terms Sinitus was to act as directors/or officers of Clairmont but was required to act exclusively on instructions received from the appellant or his Attorney. Whether or not the two men had met face to face before, it was clear that Mr Meisterhans had, in these previous commercial transactions, acted effectively as agent for the appellant whilst acting as a director for one of his companies. It is true that no Mandate Agreement operated in the June 2004 structure. However, Mr Meisterhans was well used to taking instructions from the appellant. He was well used to acting as his agent in commercial transactions. The circumstances following June 2004 demonstrated that this type of relationship continued to operate between them, notwithstanding the absence of a Mandate Agreement or its equivalent. 218Ms Harley intended, of course, that the Stichting Group companies would acquire the Admerex shares from the appellant "on an independent basis". As we have said earlier, however, there was no evidence of independent advice nor was there the prospect of the purchase of Admerex shares from any other vendor or vendors. Moreover, the Stichting Group companies were specifically set up to enable the appellant to transfer the shares to them with a tax deferral scheme in mind. None of this made the scheme bogus. But it reinforced, as later events showed, that the appellant did not intend to be bound by the structure. Quite to the contrary, he controlled the disposal of the shares throughout and gave instructions to Mr Meisterhans which were readily carried out on his behalf. This extended to the disbursement of the proceeds of the sale of the Admerex shares. 219There were at least three matters of significance in 2004. The first was the appellant's signing of the declaration as to the source of funds for Citco's purposes. This document had identified the appellant as the beneficial owner of funds used to establish the Stichtings, and the funds which might from time to time be transferred into the names of the Stichtings. Ms Harley gave evidence that she was obliged to have this done even though she herself did not think that it was correct. Similarly, the appellant was identified as the beneficial owner of assets in the paperwork which opened accounts on 15 June 2004 in the name of each of the Stichting Group companies with EFG Bank. Mr Meisterhans opened these accounts, he being the sole signatory. Once again, Ms Harley's evidence was that this was an obligatory requirement by the bank rather than the statement of the true position. However, it was evidence, we accept, that supported the notion that, from the appellant's perspective, he saw himself as the person who had the ultimate control over the practical operation of the structures. Events to which we now refer demonstrate that he carried this belief into practice. 220Between 1 July 2004 and 18 November 2004 there was a spate of selling of the Admerex shares. On 18 November, the appellant emailed Mr Meisterhans from his Blackberry. He gave him peremptory instructions to revoke current orders for the sale of Admerex shares. The language and tone of the email made it quite clear that he was simply ordering Mr Meisterhans to carry out the directions and that is precisely what happened. There were various arguments advanced by Mr Robberds to suggest that this interpretation should not be put on the terms of the email. We regard its terms, however, and more significantly the response by Mr Meisterhans as indicating clearly that both men treated the appellant as beneficial owner and in control of the disposal of the shares. This was much more than the protection of an investment by a person with a financial interest. 221Secondly, between July and 18 November 2004 some 6 million Admerex shares had been sold. It is clear that, although the monies were not immediately transferred over to the benefit of Mr Milne, they remained available to him until they were ultimately transferred to a UBS Zurich account in the name of Challinor Equities from which payments were thereafter made to a CBA account in Australia in the name of Barat Advisory. 222Thirdly, there was the share swap itself. Although the Admerex shares were not transferred at the request of Mr Goodall until September 2005, it is clear that the actions of Mr Meisterhans in February 2005 recognised both the instructions given to him by the appellant and the implications of the swap. Mr Meisterhans' actions in transferring 1 million Temenos shares into the Challinor Equities SwissFirst Bank account, the subsequent sales and the disposal of the consequent funds to or for the benefit of the appellant, was a recognition that, in accordance with the appellant's instructions, the Admerex shares had been disposed of without any independent or separate consideration being given to the transaction by the Stichtings Group companies. Moreover, the direction given to Mr Meisterhans indicated a decision that had been made by the appellant to pass the benefit of the Admerex shares to Mr Goodall. 223Mr Meisterhans' email to Ms Harley (copy to the appellant) on 8 September 2005 referred to the events of 2 and 3 February 2005: "On 2 February 2005 the termination agreement for the letter of intent was signed between Admerex (Ireland) Limited and SwissFirst Bank AG under which Admerex (Ireland) Limited continued to retain a total of 3 million T shares (originally 5 million). One million T shares were consequently returned by SwissFirst to EFG in favour of Kim while 1 million shares were swapped against 48 million shares in Admerex Limited: that 1 million shares were transferred to Challinor's account with SwissFirst while the 4 St. Vincent companies continued to hold 48 million Admerex shares with EFG on behalf of Kim". 224In the email Mr Meisterhans confirmed that it was his understanding at the time that "all conditions for the swap had been met". He sought instructions from both Ms Harley (and the appellant) to make delivery of the 48 million Admerex shares to Mr Goodall. Presumably, clearance was given because, as we have mentioned, Mr Goodall then proceeded to arrange for the transfer of the shares to a third party. 225We conclude that the appellant intended to and did retain beneficial ownership of the shares following the June 2004 transfers and that thereafter he gave instructions to Mr Meisterhans from time to time in relation to the disposal of shares. In relation to all those instructions, Mr Meisterhans complied and acted as if he were bound to do so. The appellant's deliberate contraventions of the structures set up by Ms Harley further evidence the true situation. 226We turn then to the conversation between the appellant and Mr Goodall. The terms of the conversation, it must be said, were rather unusual. In one sense, the appellant's remarks were more in the nature of a direction or a command to Mr Goodall. However, there was nothing in the language used by Mr Goodall to suggest that he did not accept the statement that he (Goodall) would get a million Temenos shares back and that the appellant would take a million Temenos shares for his 49 million Admerex shares. The conversation refers to the "renegotiation" of a deal. It seemed to be common ground between the parties, however, that this was a reference to the re-arrangements of the finance facility with SwissFirst. It was not a reference to the swap. Mr Robberds submitted that Mr Goodall's evidence demonstrated that there was no share swap because he had "denied" that he agreed to the swap. This appears to be a reference to Mr Goodall's evidence at Transcript 235 lines 25-50: "Q. In the time between Mr Milne ringing you to say that he would take a million of your Temenos shares and you would have 49 million of the Admerex shares and the occasion when Mr Milne said to you 'I want you to look at a document', had you done anything or had anything been done, to your knowledge, in relation to transferring shares either your Temenos shares or the Admerex shares? A. I had suspected that something may have happened to the ... Q. Rather than what you suspected, could you tell us what had happened or what you had observed in relation to the shares? A. A number of transactions took place. My banker had advised me one million shares had gone back to my bank and at that time it appeared that somebody else had control of the Admerex (Ireland) bank account. Q. Who was your banker? A. Robert Mehm of EFG Bank in Geneva. Q. When did he inform you about the shares going back to the bank? A. I don't know, I don't remember the dates. Q. Before the meeting you had spoken about with Mr Milne? A. Yes Q. Had you done anything in relation to accepting 48 or 49 million Admerex shares? A. No I had not. Q. Had you done anything yourself about transferring or assigning 1 million Temenos shares to Mr Milne or anyone associated with him? A. No sir." 227At Transcript 236, Mr Goodall said that eventually he arranged for the transfer of the 48 million Admerex shares to a third party. He asked Mr Mehm at EFG Bank to find a third party. He said that he had "more than enough Admerex shares ... didn't want any more Admerex shares". 228At Transcript 237, in relation to the 1 million Temenos shares he said he had not done anything to assign them or transfer them "... it was just done". 229We do not consider that this evidence represents a denial by Mr Goodall that a share swap occurred. Rather, it seems a recognition on his part that the Admerex shares remained to be used by him whenever he chose to do so, whereas the 1 million Temenos shares had been transferred to the appellant without anything being done on his (Goodall's) part - "it was just done". 230The final issue relates to the proposition that no CGT event occurred on 3 February 2005 and that, if there were such an event, it did not occur until September 2005. We do not accept on the facts that this is what happened. Section 104.5 of the ITA Act 1997 makes it clear that a CGT asset is disposed off when the disposal contract is entered into or, if none, when the relevant entity "stops being the assets owner". We consider that the circumstances we have outlined plainly show that there was a disposal contract entered into on 3 February 2005. For example, the actions of the appellant, in instructing Mr Meisterhans to transfer the 1 million Temenos shares for his benefit demonstrate that, from his perspective, Barat Advisory had ceased to be the owner of the Admerex shares. There could be no clearer admission on his part that this was the case. There was no suggestion he would hold both parcels of the shares. Equally, Mr Goodall's passivity in allowing the transfer of the 1 million Temenos shares for the benefit of the appellant demonstrated his tacit acceptance that he had ceased to be the owner of those assets. 231In addition to the tax direction the trial judge gave to the jury, there was a separate direction given at the conclusion of the summing up. This was described as a direction to address "the contract issue". This further direction was in these terms: "Now, with respect to the contract issue, I want to give you this further direction. In the circumstance of the case, it is necessary for the Crown to prove beyond reasonable doubt that the 48 million Admerex shares were disposed off on or around the 3 rd of February 2005 because the accused, on behalf of Barat Advisory, entered into a contract with Mr Goodall to transfer the shares to him. And as I have said just a moment ago, there are various ways in which a contract may come into existence. It does not have to be only in the form of a document, described as a contract which contains the terms of the contract. A contract may arise from words spoken, as well as the contents of documents, or a combination of the two. A contract does arise if there is an offer, and an acceptance of the offer, so that it can be said there is a settled agreement between the parties, even if parts of the contract are to be performed at a later time". No criticism has been made of this direction. We are satisfied on our own independent examination of the evidence that there was a CGT event on 3 February 2005 and that consequently it occurred in the financial year ending 30 June 2005. This is so, notwithstanding that the shares were not transferred to the third party until September 2005. 232Having made an independent assessment of the evidence, and having examined with care the submissions of Mr Robberds on these grounds, we conclude that we have no doubt as to the guilt of the accused. For that reason, we conclude, as a matter of fact, that it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt in relation to both counts 1 and 2. We would dismiss these grounds of appeal. Sentence Appeal 233We turn now to consider the sentence appeal. There are some 23 grounds of appeal, although there is a considerable degree of overlap and restatement in a number of the grounds. Before considering the grounds of appeal, we shall briefly say something about the trial judge's remarks on sentence. At the outset of these reasons, we indicated that the appellant was sentenced to imprisonment on count 1 for a period of 7 years and on count 2 to a period of 3 years and 6 months. There was a degree of accumulation between the two sentences so that the ultimate expiry date set was 16 June 2019. The effective overall term of the sentences was 8 years and 6 months. A single non-parole period of 4 years and 9 months was imposed. Remarks on Sentence 234In his remarks on sentence, the trial judge drew together the complex of factual matters underlying both charges and summarised once again the principal arguments where there were contests of fact between the prosecution and defence. He resolved these conflicts for the purposes of making findings relevant to the sentencing exercise. 235In that regard, his Honour stated his satisfaction beyond reasonable doubt about a number of matters as follows: (a) The term "windfall" (used by the Crown at trial and in the context of sentencing submissions) was apt to describe the substantial benefit which the appellant obtained in 2003 for a modest outlay of $1. the need to take action, in the appellant's own interests, for tax purposes arising from the "windfall" lay behind the events which followed. (b) The appellant's approach to Ms Harley for advice which culminated in the Stichting group structures was primarily tax driven. (c) The appellant and Mr Meisterhans knew of the existence of each other through the earlier role played by Sinitus in the business and corporate affairs of the appellant. (d) Ms Harley's understanding (that the Stichting group structure was designed to see both the legal and the beneficial ownership in the shares passed to each overseas company) was based upon the appellant acting in a manner which was consistent with those arrangements. However, the appellant did not act in that way and this circumstance shed light upon his state of mind when the arrangements were put in place in June 2004. (e) The appellant did not wish to lose control over the 55 million Admerex shares in June 2004. The documents signed by the appellant and by Mr Meisterhans which identified the appellant as the beneficial owner of the shares reflected the true position at that time in the mind of the appellant. (f) At the time of the creation of the Stichting group structures in June 2004, it was the appellant's intention that he, through Barat Advisory, would maintain beneficial ownership of the 55 million Admerex shares and thus maintain control over them, notwithstanding the passing of the legal title. (g) The appellant was, at all relevant times in 2004 and 2005, the controlling mind of Barat Advisory and the controlling mind of the 5 overseas companies. The appellant effectively controlled the latter companies through Mr Meisterhans. It was his intention that the 5 overseas companies would hold the 55 million Admerex shares on trust for Barat Advisory. 236Against the background of these findings, his Honour examined and assessed the criminality involved in the commission of each offence. In relation to count 1, his Honour found that the factual matters constituting the money laundering offence included a series of steps taken by the appellant, one after the other, over a period of months, involving intentional criminal wrongdoing on his part and an intention that the shares would be used in the future to facilitate the commission of an offence by Barat Advisory. The appellant's subsequent misuse of the Stichting group structure (and his failure to adhere to the structure) was part of the factual matrix leading to the verdict of guilty on the first count. Thereafter, the appellant took the opportunity, when the opportunity presented itself on 3 February 2005, to exchange the Admerex shares for the Temenos shares. This occurred, his Honour found, in circumstances where the appellant believed that the Stichting group structure would conceal Barat Advisory's beneficial ownership of the Admerex shares and facilitate the non disclosure of the capital gain in order to avoid the payment of tax. His Honour said (ROS paras 172, 173): "The offender's actions involved a systematic and deliberate course of conduct, intended to gain a CGT advantage for Barat Advisory. The offender is guilty of the offence in the first count without regard being had to his deliberate deception of the Grant Thornton Accountants, and his ultimate dishonest act in causing to be lodged, in November 2006, an intentionally false tax return for Barat Advisory. That said, the fact that the offender acted in a deliberate and dishonest way in his dealings with the Grant Thornton accountants and by causing to be lodged a knowingly false tax return, sheds light upon the offender's motivation in the period between April 2004 and September 2005 when the money laundering offence was committed." 237His Honour concluded, in relation to count 1 that the appellant had exercised, at all relevant times, control over the 55 million Admerex shares, 48 million of which came to be swapped on or around 3 February 2005 for the Temenos shares, the proceeds of sale of which were then directed to his benefits. 238In relation to the criminality in count 2 his Honour said (ROS 180, 181): "... the jury's verdict leads to the stark conclusion that the conduct of the offender in his dealings with the Grant Thornton accountants, over a period of months, was dishonest and deliberate, culminating in the signing by the offender of the relevant return, to be lodged with the ATO, containing that false statement. The dishonest statement was false in a gross respect in that the net capital gain from the sale of the Admerex shares was not $4,597, but a sum of at least $6.5 million." 239The trial judge then gave close consideration to the submissions relating to the related issues of overlapping criminality and double punishment. The Crown accepted, in its arguments, that there was an overlap between the appellant's criminality in relation to the two counts. This meant that the Court was obliged, after first determining the appropriate penalty for each offence, to consider questions of accumulation, concurrence and totality. The Crown further accepted that, to the extent that both counts had common elements, the appellant should not be punished twice for those common elements. However, the Crown submitted that the sentences should properly reflect any additional criminality which arose from any particular count. Essentially, the Crown submitted that the money laundering charge was directed to separate earlier conduct in which the appellant had arranged for and misused an elaborate and sophisticated offshore structure in order to facilitate, at some future time, the evasion of capital gains tax arising from the disposal of the Admerex shares in exchange for Temenos shares on or around 3 February 2005. By way of contrast, the s 135.1(1) charge was directed to the subsequent conduct of the appellant, culminating in the event on 13 November 2006, when the tax return for Barat Advisory was lodged without disclosing the capital gain on the disposal of the shares. 240For these reasons, the Crown had submitted to the trial judge that the money laundering offence involved significant additional criminality over and above the criminality involved in the appellant's subsequent lodgement of the false tax return, and that such additional criminality should be reflected in the sentences to be imposed. 241Mr Robberds made contrary submissions to these. He argued before the trial judge that there were no remnants of criminality in the money laundering offence which added to the culpability of the appellant's conduct involved in the second count. Senior Counsel had submitted that the offences were not, in any event, freestanding. There was, he argued, an intimate link between the two counts, in that the money laundering offence was the means by which the dishonest obtaining offence was facilitated. For that reason, the money laundering offence added nothing to the dishonest obtaining offence, so that there should be no separate sentence imposed for the money laundering offence, or that such a sentence should be entirely concurrent with the sentence imposed for the second count. If there were any additional criminality involved in the money laundering count, Mr Robberds submitted that it was "minimal". 242Consequent upon these submissions, Mr Robberds also argued that if the Court found that there was any additional and significant criminality in the money laundering offence, then the maximum penalty of imprisonment for 5 years for the dishonest obtaining offence was relevant. This was because the seriousness of the substantive offence in the second count ought reflect on the seriousness of the money laundering offence in the first count. In practical terms, the submission was that there was no warrant for a separate sentence on the money laundering count which itself exceeded the maximum penalty of 5 years imprisonment available on the second count. 243There were other submissions as well but these were the major matters put on the appellant's behalf. 244His Honour rejected the defence submissions and preferred those of the Crown. It is appropriate to set out his Honour's finding (ROS 195-198 in full): "195. There is a clear overlap between the two offences. However, the offence contained in the first count, in my view, involved significant additional criminality to be assessed, for sentencing purposes, apart from the criminality involved in the second count. The conduct of the Offender in erecting the Stichting Group structure, with the assistance of Ms Harley, was always intended by the Offender to have favourable tax consequences for him and Barat Advisory. However, the conduct of the Offender went beyond the implementation of the model advised by Ms Harley. The Offender utilised and misused Ms Harley's model, in a way which involved Mr Meisterhans acting as the agent of the Offender and at his direction in a number of respects, all of which was intended to ensure that the Offender maintained practical control over the 55 million Admerex shares in and after June 2004. The Offender intended to take advantage of the Stichting Group structure, when an opportunity presented itself, by using the 55 million Admerex shares over which he maintained control, to benefit himself and Barat Advisory and to evade the capital gains consequences which he expected to apply. 196. It is correct to say that capital gains tax was payable because of the CGT Event on or around 3 February 2005 when the share swap occurred, so that this event was linked to the false statement made in the Barat Advisory tax return lodged in November 2006. However, this does not mean that these aspects ought all be included under the umbrella of criminality surrounding the second count. I am satisfied beyond reasonable doubt that the Offender did erect an elaborate and sophisticated offshore structure as submitted by the Crown. This process involved an elaborate rerouting of shares, and ultimately funds, to assist the intentional wrongdoing of the Offender contained in the first count. 197. In my view, it would be wrong to approach the sentencing of the Offender upon the basis that all the circumstances which bear upon his criminal conduct in the period from April 2004 to November 2006 should all be placed under the umbrella of criminality surrounding the second count. There is, in my view, a substantial element of additional criminality revealed with respect to the first count, so that a significant sentence ought be imposed for that crime. 198. Of course, it will be necessary for the Court to have regard to principles of concurrency, cumulation and totality in the imposition of sentence. However, I am satisfied that the sentences which I will pass do not give rise to any injustice to the Offender because of double punishment for separate offences. Rather, the sentences to be imposed will reflect the criminality for each offence, with the final total sentence reflecting the total criminality revealed in the offences for which the Offender was found guilty by the jury." 245Having dealt with these arguments, the trial judge turned to consider the subjective case advanced on behalf of the appellant. It was, as might be expected, a significant one. The appellant had been born in 1955 and had reached his then age without any criminal convictions whatsoever. There were ample character testimonials given on his behalf, all of which referred to his successful career in business over many years and to his general reputation as being an honest and honourable person. He was described as being "a hardworking man who had provided well for his family". 246The trial judge accepted that the appellant was a man of good character. He accepted that his prospects of re-offending were "very low". By contrast his prospects of rehabilitation were described as "good". 247His Honour then considered a number of the matters he thought to be of relevance arising under s 16A(1) of the Crimes Act 1914 (Cth). In relation to the nature and circumstances of the offence, he said: "I am satisfied that the second count constitutes a very serious example of a dishonest obtaining offence. I am also satisfied that the first count represents a serious example of a money laundering offence, involving the establishment and misuse of a sophisticated offshore structure for the specific purpose of avoiding the payment by Barat Advisory of a substantial amount of tax." 248His Honour noted that the capital gains tax avoided was in the sum of at least $1,964,727. He was not satisfied that the appellant had any contrition for the offences. There were a number of other generally non-contentious matters which his Honour considered and about which he reached conclusions. These included the extent to which the appellant's good character was of assistance in the sentencing process; the need to send a message of general deterrence and the Court's need to protect the integrity of the revenue system by imposing punishments for deliberate dishonesty which would be likely to deter others; and the fact that the admissions made on the appellant's behalf and the general conduct of his legal representatives entitled him to consideration in that regard as demonstrating a willingness to facilitate the course of justice and to reduce the cost and the demands on the community by significantly shortening the trial. 249Finally his Honour turned to consider the selection of an appropriate non-parole period appropriate to the circumstances. In this regard, his Honour placed reliance upon remarks in a recent decision of the High Court in Hili v R ; Jones v R [2010] HCA 45; (2010) 272 ALR 465. His Honour determined the sentences should be concurrent for two years and cumulative as to one year and six months. This meant that the total period of imprisonment would be one of 8 years and 6 months. His Honour said that he proposed to set a single non-parole period of 4 years and 9 months. In that regard he said he was "satisfied that this is the minimum period the offender should spend in prison having regard to all the elements of punishment including the objective seriousness of his crime, specific and general deterrence, denunciation and the offender's subjective circumstances, including his good prospects of rehabilitation". 250His Honour then imposed the sentences to which we have made reference at the outset of these reasons. Ground 1 (Sentence Appeal) 251The trial judge is said to have erred in his remarks on sentence when he stated that the applicant "sought advice from Ms Harley as to how the 55 million Admerex shares could be moved offshore and placed within a structure to facilitate the sale of those shares to offshore investors". 252We have referred (para 188) to Ms Harley's evidence relating to her discussions with the appellant. Ms Harley had also said that she had given the appellant advice in relation to transferring the shares to "an offshore" entity. We agree with the Crown that, on this evidence, it was open to the trial judge, especially in the context of his lengthy summary of the background facts, to summarise the overall effect of the evidence in the manner his Honour did. Mr Robberds maintained that there was a significant difference between the concepts of asking how to prepare the shares for sale to a non-Australian resident, and asking how the shares could be move offshore. We accept that there may be a difference but the difference is slight and could have made no difference to the outcome of the sentencing exercise. We do not consider that any error has occurred. Ground 2 (Sentence Appeal) 253Mr Robberds took issue with the trial judge's finding that the applicant obtained a substantial benefit in 2003 for a modest outlay of $1 and that it was apt to describe the alleged benefit as a "windfall". There was also criticism of the trial judge's finding that what lay behind the events that followed was a need to take action, in the applicant's own interest, for tax purposes arising from the "windfall". 254We have earlier set out the detail of the complex factual circumstances surrounding the somewhat elaborate transfer of the shares to the overseas entities. We have also set out the earlier circumstances that showed that the appellant, through Clairmont Holdings, had first acquired the substantial debt owed by Admerex for $1. Approximately $2.2 million of this debt had been assigned to Barat Advisory at no real cost to either Barat Advisory or the appellant. This portion of the debt was later satisfied by Admerex's issue of approximately 55 million shares to Barat Advisory at a value of 4 cents per share. 255The jury's verdict indicated that it must have been satisfied beyond reasonable doubt that Barat Advisory had retained the beneficial ownership of the Admerex shares. This remained the position as at the time of the share swap on 23 February 2005. There appears to be no dispute that at the time of the disposal the 48 million Admerex shares were valued at in excess of 8 million. 256Against this background, it was plainly open to the trial judge to find, as he did, that the term "windfall" was appropriate. It is not easy to ascribe a more appropriate description to the benefit which Barat Advisory (and the appellant) obtained from the initial acquisition of the Admerex debt in 2004 by Clairmont for $1. 257Mr Robberds argued that the independent experts' report had suggested that the shares had a "negative value" as at 31 December 2003. This raised a query about whether the shares had any real value, whereas by contrast, they were being issued on the basis that they were worth 4 cents. The Crown responded by suggesting that an examination of the underlying facts mentioned in the report demonstrated that the company was on the "up and up" and that the negative value, although genuinely identified, did not take into account the more optimistic factors likely to affect the share value. In any event, we consider that it was open to his Honour to reach the conclusion he did. He was also entitled to make the associated finding that this benefit was the motivating factor behind the appellant shortly afterwards seeking tax related assistance from Ms Harley. The timing of these two events was obviously significant. We consider that this ground has not been made out. Ground 3 (Sentence Appeal) 258This ground attacks his Honour's finding that the offence in the first count was committed between about 30 April 2004 and September 2005, an extended period of time. It also attacks his Honour's associated finding that the money laundering offence involved "a series of steps" taken by the appellant over a period of months, involving intentional wrongdoing on his part. 259This ground is redolent of conviction ground 1(a). Mr Robberds argued that the money laundering charge related to one event only, namely the 3 February 2005 share swap. It could not relate to any other period. This submission, however, ignores the principal conclusion that must have been reached by the jury (and was reflected in his Honour's findings of fact) that as at 11 June 2004 the appellant, in his capacity as a controlling mind of Barat Advisory and each of the Stichting group companies, intended that the beneficial interest in the Admerex shares would remain with the transferor, notwithstanding the passing of legal title. 260As we have said, the existence of this intention, and the subsequent actions which demonstrated that the beneficial ownership had been retained, reflected a deliberate spate of activity that was entirely contrary to the formal structure of the Stichting groups which had been so carefully assembled by Ms Harley. In particular, it will be recalled that the appellant was not entitled to any asset of any of the Stichting group until after the proper termination of the Stichting arrangement. Further, at all times the Stichting group companies were required to act independently of the appellant and independently of each other. The events that we have described (and which were central to the Crown case) demonstrated clearly that the Stichting arrangements had been deliberately ignored and the structure flouted. 261This argument raises a theme that was central to many of Mr Robberds' submissions, namely that the Stichting group structures were not used in the money laundering offence. We do not accept this because of the necessary finding that the appellant at all times intended to ignore the structures set up by Ms Harley and intended throughout, if the opportunity presented itself, to dispose off the Admerex shares and to avoid the payment of capital gains tax. Indeed, in this regard, Mr Robberds' arguments, with respect, were not entirely consistent. As will be seen when the next series of grounds are examined, it was his principal argument on sentence that the appellant's dishonest intentions persisted over a lengthy period of time. For present purposes, however, it may be said that the criminality in relation to count 1 is not to be confined to the share swap itself. His Honour was entitled to examine the events of the preceding 6 or 7 months to assess whether there had been significant criminality throughout the entire period. We consider that he was entitled to come to the conclusion he did. Those events included the issue of the shares to Barat Advisory in April 2004, the appellant's request to Ms Harley for tax advice, and his intentions and actions contrary to that advice which placed him in a position to act opportunistically when the occasion presented itself in February 2005. This ground is not made out. Grounds 4 to 5, 7 to 8, and 15 to 19 (Sentence Appeal) 262These grounds, in a number of respects, reflect the principal matters of concern raised by the appellant on the sentence appeal. They are, it might be said, central to the attack on the length and structure of the sentence, including the non-parole period. 263The simple issue raised is whether the trial judge erred in finding that the money laundering offence involved significant additional elements of criminality which needed to be reflected on sentence, in addition to the sentence to be imposed for the offence in count 2. In some respects, this argument was the flipside of the pre-trial application which sought to have count 1 on the indictment struck out or stayed as an abuse of process. It will be recalled that his Honour had rejected this application and, in the course of so doing, had reminded himself of the need to examine carefully the circumstances said to underlie the combination of the money laundering and dishonest obtaining charges. The trial judge had been alive to the fact that, in a particular prosecution, it might very well be the case that an abuse of process had been demonstrated by the presence of two counts. At paragraph 82 of this decision, we have set out briefly his Honour's conclusions that brought him to the belief that no abuse of process was involved in the present matter. 264When his Honour came to the sentencing exercise, he had by that time the full benefit of the evidence adduced in the trial. He was in a much better position than he had been originally. At the earlier time, reliance had to be placed entirely on the Crown case statement. 265We would respectfully conclude that his Honour's careful and thorough analysis of both the relevant principles and their application to the circumstances of this trial do not demonstrate error in this regard. His Honour set out, in accurate and careful terms, the proper principles in relation to the complex considerations of totality, overlapping criminality and the need to avoid double punishment. There is no suggestion his Honour erred in that respect. His Honour recognised there was, in this matter, a clear overlap between the offences but concluded that count 1 involved significant additional criminality over and above the criminality in the second offence. This was principally based on the appellant's misuse of the offshore structure preferred by Ms Harley. This misuse had two features to it. First, there was the fact that it did provide a measure of masking to the disposal of the Admerex shares and, secondly, because the misuse of the structure enabled the ultimate disposal to take place, a result which simply could not have been achieved had the structure been respected and followed. 266Mr Robberds' argument was based on a simple foundation. The Crown case, it was submitted, focused on the proposition that, by no later than 11 June 2004, the appellant intended that Barat Advisory would sell the Admerex shares and not include in its relevant tax return any capital gain it might make on the sale. The consequence of this was, according to the argument, that the one single intention underlay the commission of both offences. Given the nature of the offences, the dishonestly obtaining offence should be regarded as the principal offence. The consequence of these arguments, accordingly to Mr Robberds, was that there was no additional significant criminality in the count 1 offence and the sentences should have been structured, both as to their length and concurrency, by reference to the maximum penalty for the offence in count 2. 267Mr Robberds' arguments, plainly enough, reflected a recognition that the maximum penalty for the money laundering charge was a term of 25 years imprisonment whereas the maximum penalty for the count two offence was imprisonment for 5 years. If the two offences could be curtailed within the penalty for count 2, there would be a significant, forensic and tactical benefit for the appellant. 268Mr Robberds' argument fails for two reasons. First, as we have pointed out, the trial judge was correct to conclude that the misuse of the Stichting structure and, indeed the reasons in the appellant's mind for its creation, were circumstances of criminality that the trial judge was entitled to take into account. Secondly, Mr Robberds' argument is, with respect, an over-simplification which seeks to proceed without reference to the importance of the facts found by the trial judge. Indeed, Mr Robberds attempted to hive off those facts and argue they were not relevant to the offences. 269There can be little doubt that, had the appellant simply disposed off the Admerex shares in Australia (without any overseas structure being created), and had at that time without more intended to obtain a benefit by deception, an indictment filed containing the two offences may, in those circumstances, have had little chance of surviving an abuse of process application. Had it done so, however, there can be little doubt that, upon conviction, the criminality of the first charge in such an indictment would most likely have encompassed the criminality within the second. 270This was not the situation, however, that faced the trial judge when it came to make his assessment of the factual circumstances relevant to the issue of criminality in each offence. As his honour acknowledged, the authorities required him to take "the commonsense approach to the assessment of criminality with respect to each offence". It is clear from a reading of his Honour's analysis that, in his view, the evidence revealed, in a significant manner, the areas in which there were discrete aspects of criminality in relation to the commission of each offence. We agree with his Honour's analysis. His Honour was right to conclude that there were significant additional features with respect to the areas of criminality discernible within the facts relating to each of the two charges. There was of course, as we acknowledge, a clear area of overlap but there were also areas of significant additional criminality. The sentences had to reflect, in a principled way, these areas of significant additional criminality as well as recognizing the principles of cumulation, concurrency and totality. In these circumstances, it would have been wrong for his Honour to conclude that all the circumstances which bore upon the appellant's criminal conduct in the period from April 2004 to November 2006 should be placed under the one umbrella of criminality surrounding the second count. The trial judge was right to conclude that such a course ought not be followed. 271We are unable to discern any error in relation to his Honour's conclusion. Ground 9 (Sentence Appeal) 272The appellant contends that the trial judge did not give sufficient weight to his good character. Mr Robberds' argument was that his Honour gave this consideration less weight than he ought to have done. It is trite law to say that the weight to be given to the issue of good character is a matter for the trial judge: R v Baker [2000] NSWCCA 85 at [111]. However, there can be no doubt that his Honour did take into account in favour of the appellant his good character and favourable antecedents. There can be no criticism of his Honour for noting that good character is of lesser significance on a sentence for white colour crimes than it is for other criminal behaviour: R v Rivkin [2004] NSWCCA 7 at [410]; R v Adler [2005] NSWSC 274 at [51]; R v Williams [2005] NSWSC 315; 152 A Crim R 548 at 579 [60-61]. Moreover, his Honour was entitled to make the observation he did that, in a number of respects, the applicant's good character, and his reputation as a successful businessman, assisted to some degree the commission of the offences. His Honour referred (para 219 ROS) to the evidence that Ms Harley had assured several European entities that the appellant was a successful businessman and a person of good character. Those assurances were no doubt required to enable the banking arrangement and the establishment of the Stichting group structure. 273Mr Robberds raised a muted challenge to the existence of evidence of this kind. However, it may clearly be seen in the written character reference Ms Harley gave to Citco in June 2004 (Exhibit C3.486); it may be seen in the evidence relating to Ms Harley attending at the offices of EFG Bank in Geneva in June 2004 to facilitate the opening of bank accounts by the Stichting group companies (Transcript 182); and it may be seen in Ms Harley's attendance at the offices of Citco in Amsterdam in June 2004 to facilitate the establishment of the structure. 274Finally, Mr Robberds argued, once again, that the Stichting structure was not used to commit either of the offences. We reject this argument so far as it relates to count 1 and it had, as well as, an indirect bearing on the count 2 offence. Ground 6 and 10 to 14 (Sentence Appeal) 275Grounds 10 to 12 challenge the trial judge's finding that the appellant's course of criminal conduct extended over a significant period of time. Grounds 11 and 13 challenge his Honour's findings in relation to the appellant's planning and deception. Grounds 6, 12 and 14 assert error in his Honour's finding that the appellant's conduct involved the establishment and misuse of a "sophisticated offshore structure". 276The challenges in grounds 10 to 12 have no substance. We have, in our earlier findings, made it clear that these findings were open to the trial judge. In relation to count 1, the jury's verdict required his Honour to find the appellant's criminal conduct commenced no later than June 2004 when, in his capacity as the controlling mind of Barat Advisory and of each of the Stichting group companies, he formed an intention to retain the beneficial interest in the Admerex shares for Barat Advisory. His criminal conduct continued into February 2005 and included those events which plainly demonstrated Barat Advisory's retention of the beneficial ownership through the appellant's control. The conduct then involved the swap of the shares and the consequent sale of the Temenos shares. It extended to the activities which produced the material benefits for the accused including the purchase of property, artworks, jewellery, a yacht and other matters. 277The appellant's criminal conduct continued into his dealings with the accountants and, over a period of time was particularly focused on his deception of those professional men. It culminated in the lodgement of the Barat Advisory tax return in November 2006. 278We are also satisfied that his Honour was entitled to find that the Stichting structure represented "a sophisticated offshore structure". It could scarcely be described otherwise. An examination of the taxation advice prepared by Ms Harley, and an analysis her memo of fees, demonstrates not only that the advice was essentially tax based but that its implementation was relatively complex. We agree with the Crown that there can be no basis to criticise the description of the Stichting Group arrangement as "sophisticated". Nor can there be any quarrel with his Honour's findings that the structure was "misused". We have earlier detailed the manner in which the appellant ignored the structure of the arrangements and effectively flouted Ms Harley's advice. Grounds 19, 20 and 21, 22 and 23 (Sentence Appeal) 279The appellant contends that the sentences imposed on each count were manifestly excessive. In support of this contention the appellant submits that: (i) Insufficient discount was given for the appellant's facilitation of the course of justice by admissions and other practical steps which assisted in the trial being conducted in an orderly and efficient manner. (ii) His Honour did not give sufficient discount for the appellant's prior good character. (iii) The sentences imposed were manifestly excessive in comparison with other cases which arose out of the multi-agency tax investigation taskforce known as Project Wickenby. (iv) There was no significant aspect of the appellant's criminality concerning count 1 which was not included in his criminality concerning count 2. 280In general terms, where a ground of appeal is taken that the sentence imposed is manifestly excessive, the appellate court will be required to examine the sentence in the light of the two categories of appellable error referred to in House v R (1936) 55 CLR 499. We are concerned here with the second type of appellable error. This occurs where the order under consideration is said to be unreasonable or plainly unjust: House at 505 per Dixon, Evatt and McTiernan JJ. "It may not appear how the primary judge reached the results embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 281As Heydon J observed in Hili v R (at 543 [75]), appellate intervention in the second category takes place because the character of the order indicates that some underlying error within the first category has taken place, even though it is not possible to identify it. 282In the present matter, Mr Robberds, by postulating the particulars he has, relied on errors within the first category whilst assenting overall that an error of the second category has occurred. 283We would conclude at the outset that none of the particular matters relied on by Mr Robberds has been established. 284As to the first particular, the trial judge recognised that an allowance should be made for the appellant's facilitation of the course of justice by the practical steps which were permitted to be taken so as to result in the orderly and efficient conduct of the trial. His Honour, however, was not obliged to formulate a fixed mathematical discount to recognise that such a matter should be taken into account. In sentencing a federal offender, s 16A of the Commonwealth Crimes Act 1914 requires the Court to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". Section 16A(2) requires the Court, in undertaking that exercise, to take into account a number of matters identified in the sub-section as are relevant and known to the Court. All such matters are to be taken into account. There is no statutory requirement which obliges a sentence that would give particular weight to one or other of those matters: Wong v R (2001) 207 CLR 584 at 610 [72]. 285The High Court has been critical of a "two stage" approach to sentencing and, in that regard, the formulation and application of a mathematical approach to sentencing: Wong at 611 [74]; Markarian v R [2005] HCA 25; (2005) 215 ALR 213. The plurality in Wong (at [75]) stated (in dealing with a mathematical approach to sentencing): "It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors while leaving the significance of all other factors substantially unaltered may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all ... The sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features." 286The plurality also referred to the decision of Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at [228] and further observed (at [76]): "So long as a sentencing judge must or may, take account of all the circumstances of the offence and the offender, to single out some of those considerations and attribute numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What might mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment". 287These considerations require the rejection of both particulars (i) and (ii). Particular (iv) has no validity, having regard to our earlier comments on the trial judge's appropriate assessment of criminality in relation to each of the offences. 288The final particular refers to other cases which arose out of Operation Wickenby. Mr Robberds referred to three cases: (a) R v Wheatley [2007] VCC 718; (2007) 67 ATR 531: Mr Wheatley was sentenced to imprisonment for 1 year and 6 months to be released after 15 months on recognisance. The amount involved was $318,092. (b) R v Hargraves and Stoten [2010] QCA 328: this case represented the highest sentence for a breach of s 135 with a 10-year maximum penalty. The sentence imposed was for a period of 5 years with a non-parole period of 2 years and 6 months. The amount involved was in excess of $2 million. (c) R v Jones; R v Hili : this was the only money laundering case on the table submitted by Mr Robberds. The maximum penalty was 20 years and the trial judge had imposed a sentence of 1 year and 6 months on Jones. The Crown appeal on sentence was dismissed. However, Jones had fresh sentences imposed by the Court of Criminal Appeal for breaches of s 26B of the Crimes Act and s 134.2(1) of the Criminal Code . The effective re-sentence was 3 years, with the offender to be released after 18 months on recognisance. 289His Honour was mindful of these other decisions but took the view that "there was no other sentencing case which was closely comparable to that of the present appellant" (para [253] ROS). His Honour made specific reference to the cases tabulated by the Crown before him which related to sentences imposed within the broad description of "Project Wickenby sentencing decisions". His Honour, in his remarks on sentence, said that he kept in mind the remarks of the High Court in Hili v R; Hili v Jones at [53] and [54]. 290In those paragraphs, the High Court of Australia had expressed the need to take care in examining previous sentences passed in cases arising out of tax evasion, customs and excise fraud and social security fraud. The plurality said at [54]: "In Director of Public Prosecutions (Cth) v De la Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past has not fixed "the boundaries within which future judges must, or even ought, to sentence. Past sentences 'are no more than historical statements of what has happened in the past'. They can, and should, provide guidance to sentencing judges and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. When considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned." 291The trial judge recognised in his remarks on sentences that sentencing decisions for money laundering offences had the capacity to provide assistance by way of statements of general sentencing principle for this class of offence. But they did not, at least at the present time, enable "the identification of a range of sentence". 292Accordingly, we conclude that none of the particular matters relied on under these grounds demonstrate that the sentence imposed by his Honour was manifestly excessive. 293We turn finally to consider the sentence in all its characteristics to determine whether it might be said that any aspect of it is "unreasonable or plainly unjust". Mr Robberds' submission attacked the overall sentence, the non-parole period and the structure of the sentence. In relation to the latter, Mr Robberds argued that a single course of conduct should have been identified. In other words, counsel submitted that the two offences of which the appellant was convicted should properly be seen as manifestations of the one criminal enterprise, transaction or episode. Accordingly, the sentences ought to have been entirely concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41at [27]; R v Lodhi [2006] NSWSC 691 at [70]. 294In Hili v R ; Hili v Jones, the Court stated (at [40]) that, in imposing a sentence of a severity appropriate in all the circumstances of the case, the sentencing judge must have regard to the principles identified in Power v The Queen [1974] HCA 26; 131 CLR 623; Deakin v R [1984] HCA 31; 58 ALJR 367, and Bugmy v R [1990] HCA 18; 169 CLR 525. An important consideration in this regard is the determination of the period of imprisonment that justice requires an offender must serve in custody (at 41). The High Court observed that in the cases before it, the deterrent and punitive effects of sentences for serious taxation fraud were to be reflected both in the head sentence and also in the fixing of a non-parole period (at 41). 295In endorsing the Court of Criminal Appeal's decision that the sentences imposed at first instance had been inadequate, the plurality referred to a number of features of the tax fraud offences before the Court (at 63): "The applicants' offending was sustained over a long time. It was planned, deliberate and deceitful, requiring for its implementation the telling of many lies. The applicants acted out of personal greed. The amount of tax evaded was not small. Detection of offending of this kind is not easy. Serious tax fraud, which this was, is offending that affects the whole community. As was pointed out in Ruha (2010) QCA 10 at [45], the sentences imposed had to have both a deterrent and a punitive effect and those effects had to be reflected in the head sentences and the recognizance release orders that were made." 296More recently in Director of Public Prosecutions (Cth) v Gregory the Victorian Court of Appeal (Warren CJ, Redlich JA and Ross AJA) [2011] VSCA 145 stated (at 57): "A sentence imposed for fraud upon the taxation revenue is intended to reaffirm basic community values that all citizens according to their means should fairly share the burden of the incidence of taxation so as to enable government to provide for the community, that the revenue must accordingly be protected and that the offender should be censured through manifest denunciation. When these considerations are not reflected in the responses of the courts, the criminal justice system fails to achieve its objectives." 297We agree with these observations, as we do with the general observations throughout the Victorian Court of Appeal's decision emphasising the need for sentences for tax fraud to reflect denunciation, general and personal deterrence. The imposition of firm custodial sentences in instances of serious white collar crime is required to ensure that an offender will not return to his or her criminal ways, and that others who are minded to commit tax fraud offences will be deterred from so doing. There is a high community expectation that serious tax fraud will be properly punished and offenders, no matter their business acumen and high status in the commercial world, will be dealt with sternly and appropriately. 298In determining the sentences for each count, the structure of the sentences and the non-parole period, the trial judge here gave consideration to the relevant principles to which we have made reference. In addition, his Honour carefully assessed the actions of the appellant, the duration of those actions and the degree of separate criminality involved in each offence (paragraphs 257-262 ROS). Applying the correct principles to those matters, the trial judge was satisfied that the appellant's conduct involved serious criminality and that his offences should be characterised as "serious examples of money laundering and tax evasion" (263 ROS). The trial judge took into account the maximum penalties involved and the subjective circumstances of the offender together with other matters outlined in the sentencing decision. 299We conclude that the sentences imposed by his Honour in all their manifestations were open to him and that they were not manifestly excessive. We also consider that the structure of the sentences was one that was open to his Honour to make, having regard to all the matters we have discussed. 300These grounds have not been established. Orders 301The orders the Court makes are as follows: 1. Appeal against conviction is dismissed. 2. Leave to appeal against sentence is granted. 3. Appeal against sentence is 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2012