Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Hiba CORNELL [2015] NSWCCA 258 Hearing dates: 27 May 2015 Date of orders: 24 September 2015 Decision date: 24 September 2015 Before: Hoeben CJ at CL at [1] Johnson J at [2] Beech-Jones J at [3] Decision: (1) Leave to raise grounds 1, 2 and 3 of the conviction appeal be granted; (2) The appeal against conviction be dismissed; (3) Leave to appeal against sentence be granted; and (4) The appeal against sentence be dismissed. Catchwords: CRIMINAL LAW – appeal against conviction and sentence – appellant was a bank officer – appellant found to be part of scheme to defraud bank to provide loan funds to purchase property for inflated sale price –false employment documents submitted in support of loan application – appellant found to have falsely certified employment documents as genuine – one count of use false instrument under former Crimes Act s 301(2) and one count of make false statement with intention to obtain an advantage under former Crimes Act s 178BB – Conviction Appeal – prior to empanelment trial judge ruled that aspects of appellant's approval of earlier loans were admissible for tendency evidence and other aspects admissible for coincidence purposes – Crown addressed jury as though all aspects of the loan applications admissible for coincidence purposes – no reference to tendency evidence – no complaint by Counsel for appellant at trial – trial judge summed up in a manner consistent with Crown address and inconsistent with pre-trial ruling – whether departures from pre-trial ruling occasioned a miscarriage of justice – no unfairness demonstrated – Counsel for Appellant embraced departure from pre-trial ruling – whether departure from pre-trial ruling constituted wrong decision on any question of law – whether pre-trial ruling "binding" – whether evidence properly admissible for coincidence purposes – held no miscarriage of justice – no wrong decision on any question of law – Conviction Appeal – whether verdict unreasonable – Crown case strong without coincidence evidence – Crown case overwhelming with use of coincidence evidence – ground rejected – Sentencing – appellant sentenced to five years imprisonment consisting of two years non-parole and balance of term of three years – whether sentencing judge erred in assessing level of involvement in fraudulent scheme having regard to what was revealed by evidence of appellant's involvement in other loan applications – no error demonstrated – accepted that hardship occasioned to appellant's daughter from separation from appellant amounted to exceptional circumstances – substantial reduction in non-parole period – whether sentencing judge erred in failing to also reduce head sentence – no House v R error shown – appeal against conviction and sentence dismissed. Legislation Cited: - Crimes Act 1900 – s 178BB, s 301 - Criminal Appeal Act 1912 – s 5(1), s 6(1) - Criminal Procedure Act 1986 – s 130A - Evidence Act 1995 – s 95, s 97(1), s 98(1), s 192A - Statute Law (Miscellaneous Provisions) Act (No 2) 2014 (Act No 88 of 2014) Cases Cited: - Anderson v R (1991) 53 A Crim R 421 - Baini v The Queen [2012] HCA 59; 246 CLR 469 - Bugmy v The Queen [1990] HCA 18; 169 CLR 525 - Chamberlain v R (No 2) [1984] HCA 7; 153 CLR 521 - Cheikho v Regina [2008] NSWCCA 191; 75 NSWLR 323 - Delaney v R; R v Delaney [2013] NSWCCA 150 - DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 - El-Haddad v R [2015] NSWCCA 10 - Filippou v The Queen [2015] HCA 29 - Harriman v R [1989] HCA 50; 167 CLR 590 - Hay v R [2013] NSWCCA 22 - House v R [1936] HCA 40; 55 CLR 499 - M v R [1994] HCA 63; 181 CLR 487 - Mokhaiber v R [2011] NSWCCA 10 - Morris v R [1987] HCA 50; 163 CLR 454 - Nudd v The Queen [2006] HCA 9; 80 ALJR 614 - Patel v The Queen [2012] HCA 29; 247 CLR 531 - R v Edwards (1996) 90 A Crim R 510 - R v Ford [2009] NSWCCA 306; 273 ALR 286 - R v Girard [2004] NSWCCA 170 - Regina v Robert Brian Grbin [2004] NSWCCA 220 - R v MR [2013] NSWCCA 236 - R v Wirth (1976) 14 SASR 291 - Rasic v R [2009] NSWCCA 202 - SKA v R [2011] HCA 13; 243 CLR 400 - TKWJ v The Queen [2002] HCA 46; 212 CLR 124 - Weiss v The Queen [2005] HCA 81; 224 CLR 300 - Winter v R [2011] NSWCCA 59 - WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 Category: Principal judgment Parties: Hiba Cornell – Applicant Crown – Respondent Representation: Counsel: Ms A. Francis – Applicant P.J. Ingram SC – Crown Solicitors: Barakat Lawyers – Applicant Director of Public Prosecutions – Crown File Number(s): 2010/014547 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Before: Syme DCJ Judgment 1. HOEBEN CJ at CL: I agree with Beech-Jones J. 2. JOHNSON J: I agree with the reasons expressed by Beech-Jones J and the orders proposed by his Honour. 3. BEECH-JONES J: On 18 March 2014 the appellant, Hiba Cornell, was arraigned in the District Court on an indictment that contained two counts. The first count charged her with an offence under former s 301(2) of the Crimes Act 1900. This count alleged that on 30 June 2006 Ms Cornell used a copy of a false instrument, namely two pay slips, knowing them to be false, with the intention of inducing St George Bank Ltd to accept them as copies of a genuine instrument and, because of that acceptance, do some act to its prejudice, namely approve a loan of $460,000. The maximum penalty for an offence under s 301(2) of the Crimes Act 1900 was ten years imprisonment. 4. The second count charged Ms Cornell with an offence under former s 178BB of the Crimes Act 1900. This count alleged that on 30 June 2006 Ms Cornell, with intent to obtain a financial advantage for another person, made a statement, namely an entry on St George Bank's computer, that was false or misleading in a material particular, namely that she "verified [a] home loan [applicant's] application details including employment", knowing that statement was false or misleading in a material particular or with reckless disregard as to that matter. The maximum penalty for an offence under s 178BB of the Crimes Act 1900 was five years imprisonment. 5. Ms Cornell pleaded not guilty to each count. The trial proceeded. On 10 April 2014 the jury returned verdicts of guilty on both counts. 6. On 25 June 2014 Ms Cornell was sentenced on count 1 to a term of imprisonment of five years, comprised of a non-parole period of two years commencing from 27 June 2014 and expiring on 26 June 2016 with a balance of term of three years expiring on 26 June 2019. On count 2 she was sentenced to a term of imprisonment for a fixed term of 18 months commencing from 27 June 2014 and expiring on 26 December 2015. Thus the sentence for count 2 was wholly subsumed into the sentence for count 1. 7. Ms Cornell appeals against her conviction on both counts. She contends that her trial miscarried because there was a deviation between a ruling given by the trial judge in advance of the trial as to the basis upon which the Crown could lead evidence concerning six other home loan applications that Ms Cornell processed, and the use which the Crown Prosecutor made of that evidence in his closing address which was reinforced by the trial judge's summing up. Ms Cornell further contends that her conviction was "unreasonable, or cannot be supported, having regard to the evidence" that was presented at her trial (Criminal Appeal Act 1912; s 6(1)). Ms Cornell also seeks leave to appeal against the sentence imposed on her (Criminal Appeal Act 1912; s 5(1)(c)). 8. For the reasons set out below I propose that Ms Cornell's conviction appeal be dismissed. While there was a deviation in the Crown address and the summing up from the trial judge's pre-trial ruling, I consider that did not occasion any unfairness to Ms Cornell so as to give rise to a miscarriage of justice. I also consider that the deviation did not result in the trial judge giving any wrong decision on any question of law within the meaning of s 6(1) of the Criminal Appeal Act 1912 and that the evidence of those other home loan applications was properly admissible for coincidence purposes in respect of all their features. Otherwise I consider that the verdict in Ms Cornell's trial was not unreasonable and could be supported having regard to all the evidence. 9. Insofar as Ms Cornell seeks leave to appeal against her sentence I propose that leave to appeal be granted but the appeal be dismissed. In summary, I consider that the sentencing judge did not err in assessing Ms Cornell's level of involvement in the subject offences to be higher than a co-offender by reference to evidence concerning her involvement in the processing of other fraudulent home loan applications. I also do not consider that the sentencing judge erred in the manner in which her Honour dealt with the hardship occasioned to Ms Cornell's daughter from Ms Cornell's incarceration. 10. The balance of these reasons is structured as follows: Conviction Appeal Crown case [12] to [22] Dealings with Mr X [23] to [32] Cancelling the valuation report on CLAS [33] to [35] Contact with principals of the scheme [36] to [37] Other loans – Mr Lawrence/Galdas [38] to [42] Mr Cunningham [43] to [47] Mr Kutchera [48] to [51] Ms Moussa [52] to [55] Mr Garbutt [56] to [58] Mr Mustapha [59] to [61] Ms Cornell's relationship with Mr Moussa [62] to [65] Grounds 1 and 2: Use of tendency evidence for coincidence purposes [66] to [114] The pre-trial ruling [68] to [72] The course of the trial [73] to [76] The Crown Prosecutor's address [77] to [81] Defence address [82] to [85] The summing up [86] to [90] Miscarriage of justice and wrong decision on any question of law [91] to [93] Ground 1: Change in Crown case [94] to [101] Ground 2: Significance of the pre-trial ruling [102] to [109] Ground 2: Was the evidence admissible for coincidence purposes? [110] to [112] Conclusion on grounds 1 and 2 [113] to [114] Ground 3: Unreasonable verdict [115 to [120] Conclusion on conviction appeal [121] Appeal against sentence [122] to [147] Ground 1: Ms Cornell's involvement in a criminal organisation [132] to [136] Ground 2: Exceptional circumstances [137] to [147] Proposed orders [148] Conviction Appeal 1. To address the grounds of Ms Cornell's conviction appeal it is first necessary to describe the Crown case including the evidence concerning the other home loan applications as well as Ms Cornell's evidence in some detail. The Crown Case 1. From late 2003 until 2006 Ms Cornell was employed as a lending officer by the St George Bank Ltd ("St George"). She worked at the Chester Hill branch. She had worked for the Commonwealth Bank of Australia (the "CBA") in a similar role from 1996 until 2003. The Crown contended that in June 2006 she participated in a fraudulent scheme designed to extract a home loan from St George ostensibly in favour of a witness whose identity was suppressed, Mr X, but ultimately said to be for the benefit of the alleged organiser, Mr Ali Moussa, and others. 2. The Crown alleged that on or about 26 June 2006 a "Freedom Account" was opened at St George in the name of Mr X and the sum of $148,000.00 was transferred into it. The Crown alleged that Ms Cornell opened that account. Around the same time Mr Moussa provided Mr X with a contract naming him as the purchaser of a unit in Willoughby for $582,000.00 together with a bogus letter identifying his employer as "D.N. & D.M. Heussner Transport Pty Ltd" and two bogus payslips. He drove Mr X to the Chester Hill branch and told him to "ask for a particular manager", being Ms Cornell ("I remember it was Hiba"). Mr X attended upon Ms Cornell and applied for a home loan in the sum of $460,000.00. It is unclear whether Mr X attended on 26 June 2006 or 30 June 2006. I will explain that discrepancy and outline the evidence concerning the loan application in more detail, but it suffices to note that Mr X provided Ms Cornell with, inter alia, the bogus letter and payslips. 3. The Crown alleged that knowing of the falsity of the payslips Ms Cornell made copies of the payslips and "used" them by placing them on the file intending that St George would act on their veracity to grant the home loan. Her conduct in doing so was said to be the offence under former s 301(2) of the Crimes Act. The Crown also alleged that on 30 June 2006 Ms Cornell typed an entry on the St George Bank's computerised notes system, Consumer Loan Application System ("CLAS"), which recorded, inter alia, "[s]table employment" and "[e]mployment has been confirmed as per letter and payslips held". This entry was said to be false to Ms Cornell's knowledge. The making of this entry was said to be the offence under former s 178BB of the Crimes Act. 4. On 19 July 2006 a cheque was drawn on Mr X's St George account to pay stamp duty. On 24 July 2006 the purchase of the Willoughby unit settled. A St George bank cheque in the sum of $458,089.25 payable in favour of the purchaser, City Downtown Developments Pty Ltd ("City Downtown"), was drawn from the mortgage funds provided by St George and provided on settlement. In addition a bank cheque for $64,730.75 drawn on the account in Mr X's name with St George was paid to City Downtown. It seems that some payments were made on the home loan out of the account in Mr X's name, but by 10 November 2006 the account balance was reduced to zero. 5. It appears that the purchase price was grossly inflated. No valuation was undertaken on the Willoughby unit. City Downtown had purchased the Willoughby unit on 9 June 2006 for $140,000.00. Further, the same coterie of individuals who were orchestrating and funding Mr X as purchaser were behind City Downtown as vendor of the Willoughby unit. City Downtown was incorporated in March 2006 and Mr Hassan Youssef was its listed director. The authorised signatories to its account were Ali Rachid and Hassan Youssef. The source of the deposit into Mr X's account on 26 June 2006 was cheques drawn on the accounts of New World Enterprises Pty Ltd and World Wide Property Investments Ltd. Ali Rachid was a signatory to both companies' bank accounts. An employee of the drawing bank, ANZ, stated that Hussan Youssef was "associated with New World". 6. Further, on 27 August 2006 two cheques were deposited into Mr X's St George Freedom account totalling $27,000.00. One of the cheques was a handwritten cheque drawn on a National Australia Bank ("NAB") account in the name of Louvre Investments. The other was a bank cheque but the funds for that cheque also came from the Louvre Investments account. The business profile for the Louvre Investments account was established on 2 June 2006. Mr Terrence Reddy was listed on the account and was the applicant for the bank cheque. The Crown led evidence of a relevant connection between Mr Reddy and Mr Moussa (see [39] and [49]). 7. It will be necessary to describe Mr X's evidence in more detail, but at this point it suffices to state that Mr X told the jury that the originals of the letter and the payslips provided to him by Mr Moussa were not genuine and that he had never been to the work premises listed as the employer's address. As at the middle of 2006 he was receiving Centrelink benefits. By the time of the trial judge's summing up it does not seem to have been seriously disputed that the employer's letter and payslips were bogus. 8. There is no doubt that a reasonably sophisticated scam was perpetrated on St George. The orchestrators of the scheme funded the initial purchase of the Willoughby unit and the deposit for the grossly inflated on-sale to Mr X with the balance of that inflated purchase price funded by St George. They procured a front man, namely Mr X, to act as the proposed purchaser and borrower and furnished him with bogus documents sufficient to meet the St George Bank's lending guidelines. The loan funds were diverted and St George was left with a security that was worth far less than the amount it advanced. 9. Ms Cornell gave evidence in her own case. She accepted that she copied the pay slips and made the computer entry on the CLAS system but denied having any knowledge of any fraudulent scheme or that any documents were bogus. Thus the real issue in the case was whether the Crown had proved beyond reasonable doubt that Ms Cornell knew that the payslips were false and knowingly (or recklessly) made a false entry on the CLAS system. The Crown also had to prove that she had the requisite intent with each charge but an inference to that effect would easily follow from a finding that she knew the payslips were false and knowingly made a false entry. 10. The apparent narrowness of those issues belies their true scope. The Crown's case was circumstantial and it invited the jury to consider all the circumstances of Mr X's loan application and, as I will explain, other loan applications in determining whether Ms Cornell had the requisite knowledge and intention. While the charges focussed on the pay slips and employment details, the Crown alleged that Ms Cornell was aware that Mr X's application was bogus and she was a knowing participant in the scam being carried out on the St George Bank. 11. From reviewing the evidence and the addresses, it appears that the Crown relied on four matters as demonstrating that Ms Cornell had the requisite knowledge and intent, namely (i) her dealings with Mr X in relation to his loan application; (ii) her alleged cancellation of a direction to obtain a valuation for the Willoughby unit; (iii) her contact with the principals of the fraud in mid-2006 and (iv) her previous dealings with Mr Moussa and fraudulent loan applications connected to him. I will describe the evidence on those topics, including that given by Ms Cornell. Dealings with Mr X 1. Mr X pleaded guilty to charges of obtaining a financial advantage by deception and using a false instrument arising from his role in the fraud perpetrated upon St George Bank. He received a custodial sentence but it was discounted on account of his plea and the assistance he provided to the authorities which included giving evidence against Ms Cornell. 2. I have already recounted some aspects of Mr X's evidence. He stated that he first met Ali Moussa in 2004. He said that in 2006 he again met Mr Moussa who encouraged him to purchase the property with the assistance of bogus documents. He said that Mr Moussa provided him with a cheque for $148,000.00 and took him in his car to deposit it into an account opened in his name. He opened the account before he received the cheque although that is inconsistent with the records already noted. On the same day Mr Moussa showed him the contract for the purchase of the property. Mr X said that he signed the contract but could not recall when. 3. Mr X said that Mr Moussa then drove him to St George Bank's Chester Hill branch. He said that Mr Moussa told him to memorise the name of this supposed employer (ie D.N. & D.M. Heussner Transport Pty Ltd), its address and his income level. Mr Moussa gave him a manila folder with the bogus pay slips and a letter supposedly on the employer's letterhead confirming that he worked for that company. He knew they were false. Mr Moussa parked outside the bank and told Mr X to go into the bank and ask for Ms Cornell. He went into the bank. He introduced himself and handed her some paperwork, including identification, payslips, work history and the contract for the purchase of the property. Mr X recalled Ms Cornell asking him a question about the company he was working for. He said he "buckled". He said he told Ms Cornell that his car was parked in a no parking area and that he needed to move it. 4. Mr X then left the interview and went outside and spoke to Mr Moussa. Mr X said that he and Mr Moussa then both returned to Ms Cornell's office. He recalled Ms Cornell reviewed the paperwork and spoke to Mr Moussa ("talking, like laughing"). Mr X said he signed and initialled some documents in the presence of Ms Cornell and Mr Moussa and then left. 5. Mr X identified his signature on a partially completed home loan application dated 26 June 2006, a completed loan application dated 30 June 2006 and a "Residential Loan Agreement Offer" dated 30 June 2006. With the last two of these documents he did not accept that the dates were in his handwriting. He stated that the employment details and some other personal information such as his ownership of a BMW motor vehicle that was included in those applications was false. He stated that he only spoke to Ms Cornell on one occasion. He said that Mr Moussa assumed control of the bank account and directed him as to the distribution of funds. 6. In her evidence Ms Cornell stated that Mr X came to her office on 26 June 2006 and 30 June 2006. She said that on 26 June 2006 Mr X told her that he was still negotiating the price on a property and was seeking an approval based on his income. He provided her with the original of his employment letter and payslip. She photocopied them, put them on the file and returned the originals. Ms Cornell said that Mr X signed a home loan application on 26 June 2006. She also said that she opened a St George account for him on 26 June 2006 as it was a requirement that all home loan customers have an account with St George. She said she asked Mr X to transfer whatever deposit he had or any money that was going towards the property into that account. 7. Ms Cornell stated that while Mr X was in her office he received a telephone call on his mobile. Mr X said to her: "It's my boss, he doesn't believe I'm in the bank, can you please speak to him". She took the phone and recalled a Mr Vickers identifying himself. After she told the caller she worked for St George Bank the caller confirmed Mr X's employment details as referred to in the letter and payslips. Ms Cornell stated that, even though she obtained confirmation from the employer, she was not required to obtain verbal confirmation of the details of the payslips. 8. Ms Cornell stated that towards the end of the interview on 26 June 2006 Mr X stated that he was worried that his car was going to get booked. He left and returned within five minutes. She remembered that by then she had printed off all the documents. She said she explained them to him, he signed them and left her office. Ms Cornell stated that Mr X returned on 30 June 2006 and signed a complete application form and residential loan agreement offer. 9. Ms Cornell stated that there was nothing about the letter of employment that caused her to have concerns about its legitimacy. She accepted the information on it as correct. She stated that she accepted the payslips provided by Mr X as genuine. 10. Thus there were three principal differences between the evidence of Mr X and Ms Cornell. First, there was the dispute about whether Mr X attended at her office on two occasions or one. Second, there was a critical dispute about whether Mr Moussa joined Mr X at any time during his meetings with Ms Cornell. Mr X said he did but Ms Cornell denied that. Given the evidence as to her previous dealings with Mr Moussa described below, if the jury accepted that Mr Moussa made himself known to her during her interview with Mr X, then the case against her became very strong. Third, as stated Ms Cornell asserted that she spoke to a person on the telephone in Mr X's presence who claimed to be the author of the employment letter. In cross-examination Mr X denied that happened. Cancelling the valuation request on CLAS 1. The scam being perpetrated on St George Bank was predicated on the Bank not ascertaining the true value of the property being purchased. As at 2006 the practice of St George Bank was to not require a valuation if the loan to value ratio was 80% or lower with the value being determined by the purchase price disclosed by the contract for sale. The loan to value ratio disclosed by Mr X's application was 79.037%. Nevertheless on or about 17 July 2006 the text of an email from a senior Bank employee directing Ms Cornell to arrange a "short form" valuation of the Willoughby unit was placed on the CLAS system. According to a Bank investigator, a short form valuation involved a valuer entering the premises and conducting a "full evaluation". Shortly afterwards Ms Cornell's assistant, Ms Ranade, made an entry on CLAS recording that a short form valuation had been ordered. Nevertheless no valuation was obtained. 2. St George maintained a valuation processing system ("VPS") that recorded requests for valuations. The VPS contained an entry corresponding with the request made by Ms Ranade. It also contained an entry with a creation date of 7 August 2006 "valuer could not get access, withdrawn at request of Hiba [Cornell]". In her evidence Ms Ranade stated that she made that entry after receiving an instruction from Ms Cornell. In cross-examination it was suggested that Ms Cornell provided that instruction to her on the date she made the entry, ie 7 August 2006, to which she responded "could be". The implication of the question was that by that time the settlement was complete so that the necessity for the valuation had disappeared. Even so, why the valuation was not completed before settlement or St George did not insist on it being delayed pending a valuation was not explained. 3. In her evidence Ms Cornell stated she did not recall being contacted by Ms Ranade about the valuation request or being advised that a valuer was having difficulty accessing the property. She stated that there was no utility in obtaining a valuation once the sale is completed. In cross-examination she denied deliberately "kill[ing]" the valuation to avoid detection of "[her] fraudulent scheme". Contact with the principals of the scheme 1. The Crown tendered Ms Cornell's mobile phone records for the period May to September 2006. They included three telephone calls or attempted calls from Ms Cornell to Mr Moussa and six calls or attempted calls from her to Mr Rachid on 25 May 2006, a telephone call or attempted telephone call from her to Mr Rachid on each of 2 June 2006, 9 June 2006, 22 August 2006, 23 August 2006 and 29 August 2006, and two such calls or attempted telephone calls from her to Mr Rachid on each of 27 July 2006, 18 August 2006, 30 August 2006, 31 August 2006 and 4 September 2006. 2. In cross-examination Ms Cornell stated that she did not know whether she knew she was ringing Mr Moussa's number on 25 May 2006 as he may have telephoned her and she may have been unwittingly returning a call to that number. She denied that the call was part of the preparation for the loan to Mr X. She claimed that she called Mr Rachid as he was a customer of St George ( "I was answering his enquiries"). Other loans – Mr Laurence/Galdas 1. As noted, Ms Cornell worked for the CBA as a part-time lending officer between October 1996 and August 2003. She was based at the Bankstown branch. In circumstances which I will describe the Crown adduced evidence concerning the processing of six loan applications by Ms Cornell on behalf of the CBA between September 2002 and March 2003. 2. One such loan was for $450,000.00 in favour of Mario Galdas who was previously known as Flavio Laurance. Mr Galdas gave evidence. The loan was approved in November 2002. Mr Galdas stated that he was assisted by Terence Reddy and Ali Moussa who showed him a property in Elizabeth Bay and then introduced him to Ms Cornell who processed his loan application. He described a perfunctory meeting with Ms Cornell at which Mr Moussa was present. He said that two days later he was advised the loan was approved. He could not service it and the CBA repossessed the property six months later. The stated purchase price was $625,000.00 which corresponded to a loan to value ratio of 72%. There was no evidence as to how the proceeds of the loan were disbursed, although Mr Galdas recalled that the purchase price was $490,000.00 suggesting that some part of the loan was diverted. 3. The CBA file included copies of a St George Bank statement in Mr Galdas' name indicating a balance of around $150,000.00 and two pay slips for Mr Galdas indicating that his gross monthly pay was $11,249.45. The pay slip listed his employer as "Baywash Blue" and the address of the employer as Level 25 Chifley Tower, 2 Chifley Square. This address was associated with Mr Moussa (see [49]). Ms Cornell certified that both were copies of originals. On the pay slip Ms Cornell wrote "Directory 9293 2935 Employment confirmed with Iliana". Mr Galdas confirmed that both sets of documents were bogus. He denied ever having seen them before or being asked about pay slips. His taxation records indicated his average income was around $500.00 per week. 4. Ms Cornell denied that Mr Moussa accompanied Mr Galdas to the interview or that she had any dealings with him in relation to the loan application. She said that an interview usually took between half an hour and 45 minutes to complete a loan application and that it was "impossible" that the interview only occupied 5 to 10 minutes as stated by Mr Galdas. She said that Mr Galdas provided the pay slips when she interviewed him and that he showed her the bank statement. She said she was not able to contact St George Bank to check its validity. She said she made a telephone call to confirm his employment and then wrote "Employment confirmed with Iliana" on the pay slip. 5. In cross-examination it was pointed out to Ms Cornell that one of the pay slips included a calculation of net pay that could not be reconciled with the amount stated for gross pay and the tax taken out. It was also pointed out that the other pay slip contained two different statements of the gross pay. She agreed those matters were evident on a "quick check" but denied being aware of it. She also agreed that there was an "obvious" discrepancy between the ABN stated at the top of the pay slip compared with the body of the pay slip but said she "missed it, it's an honest mistake". She denied being aware of any connection between Mr Ali Moussa and the address in Chifley Square. Mr Cunningham 1. The Crown adduced evidence concerning the other five loans via an investigator employed by the CBA, Mathew Lynch. 2. On or about 5 September 2002 Ms Cornell recommended that an investment home loan submitted by Mr Russell Cunningham be approved. Mr Cunningham sought a loan for $490,000.00 to purchase a property at 9/232 Moore Park Road, Paddington, for $650,000.00. The loan to valuation ratio was 75.4%. In a document titled "Application Covering Memo and Acknowledgment" Ms Cornell certified that the income and employment of the applicant had been verified. She also certified that two faxed copies of pay slips from "RLC Entertainment Pty Ltd" showing that Mr Cunningham held the position of Producer and earned a gross monthly income of $12,500.00 were true copies of the originals she had sighted. On one she wrote "Emp confirmed". Ms Cornell also certified that a faxed copy of a NAB statement in the name of Russell Leroy Cunningham with a closing balance of $205,150.73 was a true copy of the original sighted. 3. In June 2003 Mr Lynch obtained a valuation of the Moore Park Road property for $260,000.00. Mr Cunningham's tax records revealed that his gross annual income for the financial year 2002 was $31,500.00 and he was employed as a managing supervisor. A NAB officer confirmed that the purported bank statement was not a true record of the bank. 4. In her evidence Ms Cornell stated that after she worked on the file another CBA officer, Marilyn Marshall, completed a "funding request" which is an instruction to the loan processing centre. She said that Ms Marshall would have also had the application and the supporting income documentation and bank statement. Ms Cornell said that after the loan left her office she would generally not see it before settlement. She said that she did not see the valuation report or the material from the ATO concerning Mr Cunningham's income. She stated that she was not required to collect tax declarations for the Cunningham file or for other loan files. Ms Cornell stated that she was not allowed to contact the NAB to verify the validity of the bank statement as it would have been a breach of privacy for anyone to have given her information in relation to the account. 5. While she had no specific recollection of the file, Ms Cornell agreed that she would have received the payslips and the NAB account statement at the time she completed that document. She agreed that she wrote "Emp confirmed" on the payslips but stated that she only would have done so after telephoning the employer ("I used to ring the employer and confirm the employment"). She agreed that she certified the payslips and the NAB bank statement as being true copies. She stated that she might have sighted faxed versions of the documents, but stated that before she certified them she would have inspected the originals as provided by the customer, although the originals would be returned to the customer. In cross-examination she agreed that the pay slips did not list a bank account or include an amount for the year to date salary but did not agree that had any significance. Mr Kutchera 1. On or about 25 October 2002 Ms Cornell recommended that an investment home loan submitted by a Samuel Kutchera be approved. The approval was marked "urgent". The loan application revealed that Mr Kutchera sought a loan for $450,000.00 to purchase a property at Wentworth Avenue, Surry Hills. A copy of the contract was kept on the CBA's file. It stated that the purchase price for the property was $650,000.00. The loan to valuation ratio was 69.2%. In a document titled "Application Covering Memo and Acknowledgment" Ms Cornell certified that the income and employment of the applicant had been verified. She also certified that two copies of pay slips from Fatburger Pty Ltd showing a gross monthly income of $10,000.00 were true copies of originals sighted. She wrote on one of the copies of the pay slips "Employment confirmed". She certified that a letter of employment from Oxydo Café (trading as Fatburger Pty Ltd) stating that Mr Kutchera was employed on an annual salary of $120,000.00 was a true copy of the original sighted. She also certified that a faxed copy of a statement for an account from the Sydney Credit Union in the name of Mr S. Kutchera with a closing balance of $151.249.22 was a true copy of the original sighted. 2. In 2003 Mr Lynch obtained a copy of the contract for the sale of the property purchased by Mr Kutchera which showed a purchase price of $295,000.00. An employee of the Sydney Credit Union provided a statement confirming that Mr Kutchera had an account but did not have a balance exceeding $9,880.00 during the period from May 2002 to August 2003. An Australian Securities and Investments Commission search showed that from 4 March 2002 to 14 March 2004 Ali Moussa was a Director of Fatburger Australia Pty Limited and Terrence Reddy was its company secretary. Mr Moussa held an account with CBA in the name of Fatburger. The mailing address for the account was listed as care of "Mortgage One, Level 25 Chifley Tower, 2 Chifley Square Sydney". 3. In her evidence Ms Cornell agreed that she certified the documents but stated that when she saw the letter of employment from Oxydo Café she did not recognise the name of the café, did not recognise the name "Fatburger" or that Ali Moussa was associated with it. She reiterated that the CBA polices did not require that she make any enquiries as to persons connected with Fatburger. She said that Mr Kutchera provided her with two payslips. She wrote "employment confirmed" and certified that they were true copies. She did that on the same day that she saw the original and photocopied it. She certified the copy of the Credit Union statement when she saw the original. She gave the original back to the customer. Again she stated that she was not allowed to contact the Credit Union to check the validity of the statement. 4. In cross-examination, Ms Cornell agreed that one of the pay slips contained a figure for net pay that did not reconcile with the gross figure and the amount withheld for tax, but denied that she realised that at the time she certified it. She stated that she was not surprised that Mr Kutchera was supposedly earning $120,000.00 per annum as a café manager. Ms Moussa 1. On 10 December 2002 Ms Cornell signed a "Home Loan approval – Input Schedule" for a Fatima Moussa. Ms Moussa applied for a loan of $490,000.00 to purchase a property at 2D/23 Baden Road, Neutral Bay. Ms Moussa signed a Consumer Credit Contract Schedule on 9 December 2002. A copy of the front page of the contract for sale retained by the CBA listed the purchase price of the property as $620,000.00. The loan to value ratio was 79%. A mortgage on the CBA file contains a signature of Ali Moussa as the witness to Fatima Moussa's signature. 2. On 30 December 2002 a settlements officer employed by the CBA faxed a letter to Ms Moussa's solicitor requesting a copy of the transfer. On 16 January 2003 they replied. They enclosed copies of two draft transfers and noted that Ms Moussa was purchasing from an on-seller. The transfers stated that the property was being sold to Double Bay Developments Pty Ltd for $230,000 and that Double Bay Developments Pty Ltd was on-selling the property to Ms Moussa for $330,000. Ms Hart noticed the discrepancy and spoke to her manager, who instructed her to contact the branch to chase it up. She said she spoke to Ms Cornell and told her that there was a discrepancy between the transfer and the contract of sale regarding the sale price. Ms Cornell said that she would inquire and respond. Ms Hart recalled Ms Cornell stating "[m]ake sure it gets done". Later the same day Ms Hart spoke to Ms Cornell again. She made a diary note for the file recording that Ms Cornell told her that she, Ms Cornell, had spoken to the customers who advised that they would be taking their business elsewhere. Ms Hart said that she later received a telephone call from Fatima Moussa wanting to know why the loan was not proceeding. She told Ms Moussa that she would have to speak to Ms Cornell. 3. In her evidence, Ms Cornell denied that she told Ms Hart to "[m]ake sure it gets done". She said that she never saw Ms Moussa's file after it left the Bankstown office including the draft transfers sent to the bank by Ms Moussa's solicitors and she was not aware that there were two different transfer amounts. She agreed that she spoke to Ms Hart on 23 January 2003 and advised her that Fatima Moussa was moving her business. Ms Cornell said that she had a heated conversation with Fatima Moussa about the loan not settling and Ms Moussa decided to take her business elsewhere. 4. Fatima Moussa was Ali Moussa's sister. In cross-examination Ms Cornell denied being aware of that until she was told that by Mr Lynch during the interview in July 2003 discussed below (at [64]). She agreed that she had meetings with Mr Moussa in December or early January 2003 but stated that he did not mention that he had a sister much less that she was seeking a loan. As further explained below, her discussion with Ms Hart that was recorded in the file note of 23 January 2003 occurred three days after Ali Moussa had transferred $6,000.00 to her. She denied writing the word "urgent" on the file. Mr Garbett 1. On or about 17 January 2003 Ms Cornell recommended that an investment home loan submitted by Mr Bronson Garbett be approved. Mr Garbett sought a loan for $490,000.00 to purchase a property at 310/33 Bayswater Road, Potts Point for $615,000.00. The loan to valuation ratio was 79.7%. In the "Application Covering Memo and Acknowledgment" Ms Cornell stated that the income and employment of Mr Garbett had been verified. She certified that two faxed copies of payslips for Mr Garbett from "Uncle Sam's Fast Photo Service" showing a gross monthly income of $12,300.00 were true copies of originals that she had sighted. She also certified that a faxed copy of a letter of employment from Uncle Sam's Fast Photo Service stating that Mr Garbett was employed as a Marketing Manager on an annual salary of $148,000.00 was a true copy of the original sighted. She wrote "Employment confirmed" on the letter. Ms Cornell certified that a faxed copy of a bank statement for an ANZ account in the name of Bronson Garbett with a balance of $164,552.81 was a true copy of the original sighted. However, ATO records showed that for the financial year 2002 Mr Garbett earned a total income of $44,598.00 from his employment as a sales and marketing manager. 2. In her evidence, Ms Cornell stated that the funding request was filled out by Marilyn Marshall but agreed that she dated and initialled the task items on the left hand side of the Application Covering Memo and Acknowledgement. She also agreed that she wrote "Employment confirmed" on the employment letter from Uncle Sam's Fast Photo Service. She stated that "I would have rung the employer and confirmed that he actually work[ed] there". Ms Cornell said that, although she was not required to, she adopted the added precaution of telephoning employers to confirm the employment details. She said she certified the copies of the letter of employment and the payslips when she saw the originals. 3. In cross-examination Ms Cornell denied that there was any discrepancy between Mr Garbett's income being listed as $148,000.00 and his working in a photo shop. She denied that the marking of the application as "urgent" would have had any meaning to her at the time. In re- examination she denied writing the word "urgent" on the top of the memorandum. Mr Mustapha 1. On or about 18 March 2003 Ms Cornell recommended that an investment home loan submitted by Mr Mohamad Mustapha be approved. Mr Mustapha had applied for a loan for $490,000.00 to purchase a property at 603/33 Bayswater Road, Potts Point. The purchase price was said to be $620,000.00 and thus the loan to valuation ratio was 79%. In the "Application Covering Memo and Acknowledgment" Ms Cornell stated that the income and employment of the applicant had been verified. She certified that a faxed copy of two payslips from "A&J Delta Tiling Australia Pty Ltd" showing a gross monthly income of $10,416.67 were true copies of originals that she had sighted. Ms Cornell wrote on a copy of the payslips "Employment confirmed with JOHNNY. Directory. 9760 0777". Ms Cornell certified that a faxed copy of a letter of employment from A&J Delta Tiling Australia Pty Ltd stating that Mr Mustapha was employed as a Sales Representative on an annual salary of $125,000.00 was a true copy of the original sighted. She also certified that a faxed copy of a bank statement for a St George account in the name of Mohamad Mustapha with a closing balance of $187,508.57 was a true copy of the original sighted. 2. Records obtained from the ATO stated that for the financial year 2002 Mr Mustapha earned a total income of $4,846.00 from employment as a freight handler. An employee of Westpac confirmed that the account number with St George was an account held by Mr Mustapha, but the balance listed on the copy of the account statement retained by the CBA was false. The true balance was $16.00. 3. As with the other loans Ms Cornell agreed that she had certified the employers' letter and pay slips even though that was not required. She said she did that "[as] a rule that I made for myself just as an added precaution". She stated that she telephoned the employer and confirmed the loan applicant's employment details. She obtained the number from directory assistance. She stated that she certified a copy of the St George Bank statement when she sighted the original. She reiterated that when she processed the loan she did not have access to any information from the ATO and denied having any knowledge of the true opening balance of Mr Mustapha's CBA account. Ms Cornell's relationship with Mr Moussa 1. In her evidence Ms Cornell said that she first met Mr Moussa in 1999 shortly after she separated from her husband. They became friends but saw each other less after she remarried in September 2000. She said that he never told her he was involved in finance or property development. He knew she worked in a bank but she denied that he ever asked her to do anything on his behalf. 2. During his investigation, Mr Lynch discovered that on 20 January 2003 $6,000.00 was withdrawn from Mr Moussa's CBA account and deposited into a CBA account in the name of Ms Cornell's son. Ms Cornell was authorised to withdraw funds from that account. On 21 January 2003 the $6,000.00 was withdrawn and dispersed. $4,000.00 was deposited into Ms Cornell's home loan account, $1,500.00 was paid off her credit card balance and $500.00 was withdrawn as cash. In her evidence Ms Cornell accepted that she received the funds but said they were the proceeds of a loan from Mr Moussa to pay for air conditioning for her home. This was contested by the Crown. This dispute resulted in the calling of a witness who said he fitted an air conditioner at her home in 2003, a witness with expertise in air conditioning models and brands and the adducing of evidence from the police who arrested her in 2009 as to their observations as to whether air conditioners were installed at the home. I will not describe the evidence any further. The fact that funds were provided by Mr Moussa to Ms Cornell at the time she was involved in the processing of a loan application for his sister was itself a critical fact supporting the Crown case. 3. On 19 and 23 June 2003 Mr Lynch interviewed Ms Cornell. In the interview on 19 June 2003 Mr Lynch asked her about a number of the files and then asked whether she knew Ali Moussa. She agreed she knew him "but only very like vaguely". She said that she knew he owned a café and the name of it was "Oxy Door or something like that". In the interview on 23 June 2003 she denied that she connected that name with the employer listed on Mr Kutchera's application. She also denied that Mr Moussa mentioned that Fatima Moussa was his sister. Ms Cornell was asked about the transfer of $6,000.00. She stated that it was a loan to fund air conditioning at her home. She stated that she had not made any repayments. The balance of the questions in the interview tested her assertion that funds were used to purchase an air conditioning unit. 4. Having regard to what was discussed with her during that interview Ms Cornell could not have been in any doubt that the CBA suspected her and Mr Moussa of being involved in a fraud. In cross-examination she agreed that in September 2003 she spoke to Mr Moussa and told him "there was some home loan fraud and they think that he may be linked to it". She said that she became "wary of him". Grounds 1 and 2: Use of Tendency evidence for Coincidence Purposes 1. Ground 1 of the appeal contends that a miscarriage of justice was "occasioned by the address of the Crown Prosecutor in which evidence, which was not admitted for a coincidence use, was relied upon for that purpose". Ground 2 of the appeal contends that a "miscarriage of justice has been occasioned by the trial judge inviting the jury to use evidence which was not admitted for a coincidence use, for that purpose". Both grounds do not involve a question of law alone therefore leave to raise them is required (Criminal Appeal Act; s 5(1)). I consider that leave should be granted. 2. As noted the essence of these grounds concerns a deviation between a ruling given by the trial judge in advance of the trial (the "pre-trial ruling") as to the basis upon which the Crown could lead evidence concerning each of the six CBA loan applications described above, and the use which the Crown Prosecutor made of that evidence in their address as well as the references to that evidence in her Honour's summing up. To address these complaints it is first necessary to describe the course of the trial in detail. The Pre-Trial Ruling 1. Prior to the trial the Crown provided Ms Cornell's legal representatives with a document entitled "Tendency and Coincidence Evidence". It referred to the Crown's stated intention to lead evidence of twelve home loan applications considered by Ms Cornell including the six noted above, as well as certain evidence connecting her to Mr Moussa. The notice stated that the purpose of the tender of the coincidence evidence was to prove that Ms Cornell was involved "in a joint criminal enterprise to obtain fraudulent loans on behalf of loan applicants based on overvalued properties" utilising a loan to value ratio under the threshold for obtaining a valuation, and to prove she produced "fraudulent" documents to obtain loans including documents concerning the loan applicant's "employment [and] salary". The alleged tendency was identified in similar terms. 2. Before a jury was empanelled the trial judge addressed an objection to the tender of this material on a voir dire. In a judgment delivered on 3 March 2014 her Honour held that the evidence concerning her "relationship with Mr Moussa in general is admissible because it is relevant under a [Harriman v The Queen [1989] HCA 50; 167 CLR 590] argument", that is because her association with Mr Moussa in 2002 and 2003 was probative of the nature of her association with him via Mr X in 2006. In relation to the twelve loan applications her Honour rejected the tender of evidence of six but allowed the others being those noted above. However in doing so her Honour sought to identify which features of each application that bore a similarity to Mr X's loan application would be allowed on a tendency basis and which would be allowed on a coincidence basis. Thus with tendency evidence her Honour referred to "questionable" documentation that Ms Cornell had "either not checked or not checked it appropriately". In relation to coincidence evidence her Honour stated: "In relation to the coincidence there is evidence of, in general, incorrect valuations with respect to certain properties. There is also evidence of incorrect asset amounts. These issues are related in whether the loan ought to have been approved or not by the bank. There is no evidence that the accused knew of these incorrect valuations. There is no evidence that she benefitted from these transactions. But there is evidence which should be put to the jury as it being the unlikelihood of it being a coincidence that the accused was involved in loans which had these features in the CBA and those similar transactions in St George." 1. Her Honour then addressed each of the twelve transactions. As stated, in relation to the six loan applications described at [38] to [61] above her Honour listed the features of each application that could be "admitted" on a tendency basis or a coincidence basis. Thus, for example in relation to the Kutchera loan application her Honour stated: "The matter of Kutchera, the similarities are the accused approved the loan. There was the consistent loan to value ratio and the similar amount of loan of $450,000, the property worth $650,000. They are the tendency or coincidence similarities. In relation to this matter the accused verified the employment and there is evidence of connection between that employment and Mr Moussa. Therefore, those matters will be admitted under the tendency rule. With respect to the evidence of the valuation of the property, that should be admitted as coincidence evidence." 1. Two matters should be noted about the pre-trial ruling at this point. First in stating that only certain matters in respect of each loan application would be admitted her Honour did not make a direction under any provision of the Evidence Act 1995 either at the time of this ruling or when the evidence was adduced at the trial. Second, with respect to her Honour, I do not understand the basis for only "admitting" certain features of each loan application on a coincidence basis. In the events that transpired all the evidence was "admitted" in the sense that it was adduced before the jury. Instead, I understand her Honour's reference to a feature being "admitted as coincidence evidence" as being an indication that only that feature could be deployed by way of reliance on coincidence reasoning. This is puzzling. It is understandable that her Honour would distinguish between similar "conduct" by Ms Cornell in addressing the admissibility of tendency evidence on the one hand (Evidence Act, s 97(1)(b)) and evidence of similar "events" connected to Ms Cornell when addressing the admissibility of coincidence evidence on the other (Evidence Act, s 98(1)). However once it had been determined that evidence of two or more "events", such as the making of a loan application, can be admitted for coincidence purposes then there is no justification for restricting the tribunal of fact from considering all the "similarities in the events or the circumstances in which they occurred" as part of the process of determining whether or not the events occurred coincidentally (Evidence Act, s 98(1); see R v MR [2013] NSWCCA 236 at [79]; "MR"). 2. In the end result her Honour stated that with each of the Cunningham, Kutchera, Lawrence, Garbett and Mustapha loan applications, the certification of, inter alia, their false employment details was or would be "admitted" on a tendency basis. With each of the Cunningham and Lawrence loan applications her Honour admitted evidence of the false bank statements on a coincidence basis. With each of the Kutchera, Lawrence and Moussa loan applications her Honour admitted evidence that the purchase price of the property the subject of the loan application was falsely inflated on a coincidence basis. Her Honour did not state that any aspect of the Garbett or Mustapha loan applications could be admitted on a coincidence basis. This was inconsistent with the passage set out above because all six loan applications involved falsely inflated purchase prices and there was evidence of false bank statements being provided in support of all the loan applications except Mr Moussa's application. The Course of the Trial 1. The jury were not empanelled until 18 March 2014. In the meantime her Honour dealt with an objection to the tender by the Crown of taxation records which showed the falsity of the income statements provided in support of the loan applications, valuations which showed the purchase prices of property the subject of the applications were inflated and documents showing a connection between Mr Moussa and Mr Kutchera's employer. On 7 March 2014 her Honour held that the income statements could be tendered as part of the tendency material and the documents showing a connection with Mr Moussa were admissible on the basis that, inter alia, they showed an "association" involving Mr Moussa. In relation to the valuations her Honour stated that she had previously ruled that "valuations in general ought to be admissible in relation to the tendency or coincidence loans". 2. After the jury were empanelled the Crown opened its case. The Crown Prosecutor made reference to the six CBA loan applications and the connection they revealed between Ms Cornell and Mr Moussa. 3. Counsel for Ms Cornell then opened. He identified the main issue for the jury as whether Ms Cornell knew that the pay slips and employment letter provided in support of Mr X's loan application were false. He also referred to the dispute about whether Mr Moussa attended at the St George Bank with Mr X. Counsel for Ms Cornell referred to the CBA loan applications and stated that it was not agreed that Ms Cornell "breached lending policy". Counsel also told the jury that although they would hear evidence of "some discrepancies on payslips" they were "overlooked by my client" and were "simple human error". 4. The evidence described above was then adduced. During the trial Counsel for Ms Cornell sought to lead evidence about an audit of Ms Cornell's files at the CBA which was said to reveal that she acted properly as evidence rebutting the alleged tendency relied on by the Crown. Her Honour rejected the evidence on the basis that, unlike the six CBA loan applications, there was nothing to suggest that Mr Moussa had any connection to the files and thus at most the evidence was said to relate to character only (see [97]). Presumably Ms Cornell did not want to lead evidence of her good character given that it may expose her to cross-examination on matters said to reflect poorly on her (Evidence Act; s 112). After the Crown closed its case, Ms Cornell was called and gave evidence. The defence then closed its case. There was no further discussion of the basis upon which the evidence of the six CBA loan applications was adduced or would be deployed during these parts of the trial. The Crown Prosecutor's Address 1. The Crown Prosecutor then addressed. As is to be expected the Crown Prosecutor placed significant emphasis on Ms Cornell's association with Mr Moussa and his role in the transaction the subject of the charges. However no reference was made during the course of that address to any tendency of Ms Cornell. The word "tendency" was not used. Instead, in relation to the six CBA loan applications, the Crown Prosecutor made a number of references to the common features of those applications and Mr X's application. The Crown submitted that they were not the result of any coincidence. 2. Thus early on in the address, the Crown Prosecutor referred to the Kutchera and Lawrence loan applications and stated: "We put it on the basis that it is unlikely to be a coincidence that the accused was involved in loans which had the specific features which were also present in the loan with Mr X. That is, we say, it was not a coincidence and we say to you that in terms of this issue of coincidence that you would look at the loans carefully and consider that there were similar features in some or all of the loans and those features which were present in the Commonwealth Bank loans and appeared in the Mr X loan but also appeared in a slightly changed format to account with what the accused's state of knowledge was having been investigated by the Commonwealth Bank. … these features are, firstly that, the loans … did not require a valuation…. Of course there's the false income details in relation to the Commonwealth Bank of Australia loans ... All computerised payslips. No payslip required, no letter of employment required, no need to contact the employee, no need to write on any such documentation. And so we say that that is a feature which is consistent amongst the loans, maybe not on every document. I can't remember now whether there's a letter of employment for every loan but in any event that category of document which is not even required being placed on the file and being notated by the accused in circumstances where it's required. So we ask you to look at all of those things and as I say draw the conclusion that it was not a coincidence ..." (emphasis added) 1. Later in the address the Crown Prosecutor returned to the falsity of the payslips and income details for some of the CBA loan applications. The Crown Prosecutor identified the false payslips for the Kutchera file, the "Lawrence payslip", the "Mohamad Mustapha one … similar format", then referred to other aspects of the applications before stating that "when you look at all the of the coincidence evidence, that is not a coincidence". Shortly afterwards the Crown Prosecutor submitted that: "… Mr Lawrence [said] I went in there, I saw these two guys. Ali Moussa and Terence Reddy and we say the circumstantial evidence supports Mr Lawrence that he met an Ali Moussa who had a link with the Lawrence payslips, that is similar payslips to the Kutchera ones, the address at Chifley Square. So ladies and gentleman, we say that when you look at those two files [Lawrence and Kutchera] and then move out, you will accept that there was an emerging pattern from about the Kutchera loan onwards which had started with the false documentation from the Cunningham loan but then moved on to those others, the pattern, part of a pattern being those payslips in the same format." 1. The gravamen of these parts of the Crown Prosecutor's address was to emphasise the connection between Mr Moussa, the CBA loans and Ms Cornell as demonstrating a "pattern" of fraudulently obtained loans which was in effect repeated with Mr X's loan application. In so submitting, the Crown Prosecutor clearly deployed an appeal to coincidence reasoning. It highlighted that a common feature of the loan applications was the false income and employment material and the connection to Mr Moussa. The Crown submitted that was "no coincidence", the implication being that it was planned because Ms Cornell was a knowing party to a fraudulent scheme involving the use of such documents. 2. This aspect of the address was inconsistent with the pre-trial ruling. In particular to the extent her Honour ruled that evidence would be admitted for coincidence purposes, being the Cunningham, Kutchera, Lawrence and Moussa loan applications, her Honour did not specify that the loan applicant's payslips and employment details were matters that could be relied on as part of any appeal to coincidence reasoning. Further the pre-trial ruling did not identify any aspect of the Mustapha loan application as able to be deployed for coincidence purposes yet the Crown's address invoked the pay slips from that transaction for that purpose. The Crown Prosecutor did not refer to the Garbett loan application in his address. Defence address 1. After the conclusion of the Crown address no complaint or even comment was made by Counsel for Ms Cornell about either the appeal to coincidence reasoning or the absence of any reference to tendency in the Crown's address. Instead Counsel for Ms Cornell immediately proceeded to address the jury. 2. The first topic that Counsel for Ms Cornell addressed the jury on was the credibility of Mr X and Mr Galdas. That this was addressed at length is not surprising given that they both gave evidence of direct meetings between Ms Cornell and Mr Moussa in relation to loan applications. Counsel then addressed the evidence concerning the air conditioning unit. He ultimately submitted that a loan is "no kickback". Next Counsel addressed Ms Cornell's "role" at the CBA and St George but only to make the point that at most she only recommended approvals of loan applications but did not grant them herself. Finally Counsel addressed Ms Cornell's evidence in detail imploring the jury to either accept or at least not reject it in its entirety. The only reference to the six CBA loan applications in the entire address was in discussing Ms Cornell's evidence. Counsel stated "[w]e're talking about the X loan" and "[l]et's not get bogged down in the CBA material". Otherwise the CBA loans and the Crown Prosecutor's reliance on them were not addressed at all. 3. Following the conclusion of the address by Ms Cornell's Counsel, the Crown Prosecutor raised some minor points about references to the evidence in the address. The next day just prior to the commencement of the summing up Ms Cornell's Counsel raised two matters. The first was a request that there be a correction of one part of the Crown Prosecutor's address which referred to the timing of the Lawrence application and the Kutchera application. In the course of making that submission Counsel for Ms Cornell referred to the Crown Prosecutor as having delivered "a very succinct … and highly relevant address". The second was a further application for a direction under s 165 of the Evidence Act concerning Mr Galdas' evidence. In rejecting the latter application the trial judge referred to the opportunity the jury would have to consider Mr Galdas' evidence "in the context of the coincidence evidence which is where his evidence lies". 4. Again no complaint or even comment was made by Counsel for Ms Cornell at this point about either the appeal to coincidence reasoning or the absence of any reference to tendency in the Crown's address The summing up 1. In the summing up the trial judge told the jury that, in so far as the Crown sought to prove that Ms Cornell had knowledge of the falsity of the documents in Mr X's loan application and had the requisite intent, its case was circumstantial. Her Honour directed them in a manner consistent with Chamberlain v R (No 2) [1984] HCA 7; 153 CLR 521. Her Honour advised them that one of the circumstances relied on by the Crown was the presence of Mr Moussa at the loan interview with Ms Cornell and Mr X. Her Honour repeatedly told the jury that that was in contest but stated that, if it was accepted, it was a very important part of the Crown case having regard to the evidence as to Mr Moussa's past dealings with Ms Cornell. 2. Immediately following the giving of the circumstantial direction the trial judge addressed the coincidence evidence. Her Honour told the jury as follows: "The next thing I am going to tell you about is what is called coincidence evidence. It is obvious to you now that the accused has been charged only with the acts relating to the Mr X loan in 2006, that you know. But you have also been permitted to receive into evidence some other information regarding the CBA 2002, 2003 loans. That evidence has been permitted to be put before you because the Crown alleges that the loans the 2002, 2003 CBA loans were made in circumstances where the applicants apparently gave false details as to their income. Apparently there were false details as to their asset position that is the money they had in bank accounts and in some cases you may form a conclusion there were inflated values as to property. … The Crown has pointed to certain similarities in those CBA loans and that includes the Mr Lawrence loan. The Crown has pointed to certain similarities in relation to the CBA loans and the Mr X loan which is the subject of the proceedings before the court. The Crown has addressed you on some of those similarities that the Crown says exist. I have referred to those matters. Importantly they have included in their address to you the fact that Mr Moussa was allegedly the introducer in relation to some of those loans. Certainly there is some evidence before you if you accept it that he was there for the Mr Lawrence loan. There was some evidence before you if you accept it that he was somewhere in relation to the Fatima Moussa loan. You know the dispute in relation to that evidence in relation to Fatima Moussa's loan because that is certainly not conceded. There is some evidence if you accept it, in relation to Kutchera because that gentleman was allegedly employed by the Oxydo Café which you have evidence was associated with Mr Moussa… … Now in considering the relevance of that body of evidence, it is part of the Crown's circumstantial case. In considering the relevance of that evidence you do not consider each of those transactions individually. You consider all of the evidence in relation to that body of the evidence as a whole and consider it when deciding whether the Crown has made a sufficient connection between that and the matter that you are hearing evidence of in this matter. You do not ask yourself whether you find that in isolation but considering those CBA loans in connection with the Mr X loan. You have to consider whether there is such a significant similarity between those acts and circumstances as are put before you and the circumstances in which those acts occurred that it is highly improbably as the Crown suggests that the events occurred simply by chance or coincidence. Mr Crown has addressed you on that he has suggested to you that the events are so similar in nature that the course of conduct in the CBA loans and the course of conduct in the Mr X loan is so similar it could not have occurred by coincidence. He says therefore you would use that information that reasoning in order to consider whether the Crown has proven any of the elements of the offence in relation to the Mr X loans, specifically that of knowledge and intent. The Crown say the improbability of those sets of events occurring by change or coincidentally may lead to a conclusion that the accused was aware of the circumstances of the Mr X loan. Now this is all predicated I might say members of the jury on you accepting that Mr Moussa was present in the interview with Mr X, because that is certainly a very strong connection. The Crown say that you would reject the accused's explanation of an innocent involvement and therefore lack of knowledge. It is to that part of the evidence that the CBA loans and the suggestion that there is no coincidence at all that you would find it relevant in your consideration of the Crown's circumstantial case in relation to the Mr X loan. In this case the Crown say that provided you are satisfied that the accused participated in the loan applications in the CBA in the way that they say they did, therefore you would be satisfied as to the accused's knowledge of the Moussa involvement in the CBA loans, then importantly the Crown say the presence of Mr Moussa in the Mr X loan is one final circumstance that you would take into account when considering the issue of knowledge and intent. The Crown says that in the circumstances of this case the presence of Mr Moussa is an important feature of the Mr X loan made more important by his involvement they say in the CBA loans. Now the Crown say it is a markedly similar circumstance and one that simply does not occur by coincidence. They would say that because of that you would conclude beyond reasonable doubt when considering all of the evidence in relation to the Mr X loan, this is one further body of evidence they say that you would be entitled to take into account. They say that it [is] evidence of a pattern of behaviour. Now you can only use the evidence of a pattern behaviour if you find two things are so. Firstly that the accused, that is Ms Cornell did the other acts in the way that the Crown allege in relation to the CBA loans. That is you have to be satisfied of her involvement in the CBA loans in the way the Crown allege in relation to false income details, occasionally inflated values of property and the involvement of Mr Moussa in those loans, you have to be satisfied of that. Secondly you have to be satisfied that the body of CBA loans is so similar in all of those important features to the Mr X loan that you would find it is highly improbable that both sets of loans were carried out independently of each other or entirely by coincidence. If you accept those two matters then you can use that evidence together with the other evidence put before you by the Crown to consider whether you are satisfied beyond reasonable doubt in relation to the Mr X loan. That is how you are entitled to use it." … The evidence is placed before you not for that reason. The evidence is placed before you simply to assist you to consider in a circumstantial case, and whether you are convinced that there are similarities and whether the similarities are such that it is improbable that they occurred by coincidence. Now again that is predicated really on your finding of facts in relation to the presence of Mr Moussa in relation to the series of CBA loans and in relation to the Mr X loan and that is a factual matter that I keep on telling you is an important issue and I am not giving you any directions on that other than to say it is a factual issue you have to consider." (emphasis added) 1. At the conclusion of the summing up no issue was taken by either the Crown Prosecutor or Counsel for Ms Cornell with any part of the summing up. 2. Thus the trial judge gave a direction on the use of the CBA loan applications as coincidence evidence regarding whether Ms Cornell was "aware of the circumstances of the Mr X loan". Her Honour referred to the similarities between the "false details" about income, the similarities referred to by the Crown Prosecutor in his address and to similarities arising from the involvement of Mr Moussa. The direction was very much focussed on the connection of Mr Moussa to the CBA loan applications and Mr X's loan application. Its overall effect was to instruct the jury that they could use the similarities in relation to the dubious elements of the CBA loan applications especially the false employment letters and pay slips in determining whether Ms Cornell had the requisite knowledge (and intent), that is knowledge of the falsity of Mr X's pay slip and employment details. Further the trial judge did not give a tendency direction. To the contrary her Honour warned the jury about using the evidence of the CBA loan applications to reason that "she is the type of person who will commit criminal activity generally". 3. The end result was that the summing up directed the jury as to the coincidence use that could be made of the CBA loan applications that was consistent with the Crown Prosecutor's address. Thus the observations made in [81] above as to the deviation between the trial judge's ruling and the Crown Prosecutor's address apply with equal force to the summing up. Miscarriage of justice and wrong decision on any question of law 1. In her written submissions on the appeal Counsel for Ms Cornell, Ms Francis, pointed to the deviation between the pre-trial ruling on the permitted use of the six CBA loan applications for coincidence purposes and the actual use sought to be made of the evidence concerning those applications in the Crown Prosecutor's address which was also reflected in the summing up. Ms Francis contended that a miscarriage of justice was "occasioned by the use of extensive and significant evidence for a coincidence purpose, it having not been admitted on this basis". It was further contended that the effect of the deviation was that "Defence counsel did not meet this different Crown case during the course of the evidence nor in his address to the jury" and that "[i]t was not a Crown case which [Ms Cornell] was required to meet and indeed defence counsel was prevented from adducing evidence which was capable of meeting this case". Ms Francis submitted that none of this was cured by any part of the summing up. To the contrary the summing up reinforced the deviation between the Crown case and what was permitted by the pre-trial ruling. Finally Ms Francis contended that, as a miscarriage of justice had been demonstrated, leave to raise these grounds should be granted under Rule 4 of the Criminal Appeal Rules notwithstanding that no complaint was made about the deviation at the trial by Counsel for Ms Cornell. 2. Properly analysed each of grounds 1 and 2 identifies a different but related basis upon which it was contended that the above events gave rise to a basis for setting aside Ms Cornell's conviction. Ground 1 is to the effect that the deviation between the pre-trial ruling and the Crown's address meant that Counsel for Ms Cornell was unfairly required to meet a new case or at least a substantially different case from what he expected and that constituted a miscarriage of justice (see for example Anderson v R (1991) 53 A Crim R 421 at 438). This raises a complaint that falls squarely within the so called third limb of s 6(1) of the Criminal Appeal Act 1912 namely that "on any other ground whatsoever there was a miscarriage of justice". 3. Ground 2 concerns the trial judge's summing up. In oral argument it was developed to the point of contending that the pre-trial ruling was binding, as a matter of law, on the Crown Prosecutor and the trial judge. As I understand it the consequence of that is said to be that the trial judge's summing up, which suggested a use of that evidence in a manner consistent with the Crown Prosecutor's address but inconsistent with the pre-trial ruling, thereby involved a "[misdirection] on matters of adjectival law" so as to engage the second limb of s 6(1), namely a "wrong decision of any question of law" (Filippou v The Queen [2015] HCA 29 at [13] per French CJ, Bell, Keane and Nettle JJ; "Filippou"). As I will explain, the relevant "adjectival law" for these purposes could either be s 95 of the Evidence Act or s 130A of the Criminal Procedure Act 1986 and a consideration of s 95 requires a determination of whether the evidence concerning the six CBA loan applications was properly admissible for a coincidence purpose. If the second limb of s 6(1) is satisfied in the sense that there has not been a trial according to law then consideration moves to the proviso in s 6(3) of the Criminal Appeal Act (Filippou at [13]; Baini v The Queen [2012] HCA 59; 246 CLR 469 at [50] per Gageler J; Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [18]; "Weiss"). Ground 1: Change in Crown Case 1. In relation to the first of these bases I have set out the course of the trial in detail. I will proceed on the basis that the first notice that Counsel for Ms Cornell received that the Crown was not relying on tendency evidence but was seeking to pursue a case based on an expanded use of coincidence evidence from that contemplated by the pre-trial ruling was when he heard the Crown Prosecutor's closing address. However in this case what is critical is what occurred next. Counsel for Ms Cornell did not raise any complaint whatsoever. Instead he delivered his address and then appeared to welcome the Crown's approach (referring to the Crown's address as "very succinct and highly relevant"). In his address he responded to the Crown's reliance on this material by suggesting that the jury not get "bogged down in the CBA material" and instead focussed on the connection (or lack of it) between Ms Cornell and Mr Moussa in relation to Mr X's loan application which was ultimately what the coincidence evidence was directed towards proving. This approach was only reinforced by his response to the trial judge's summing up. 2. As noted, during the hearing of the appeal Ms Francis sought to address the failure of Counsel for Ms Cornell at the trial to object to either the Crown Prosecutor's address or the trial judge's directions by reference to whether leave should be granted under rule 4 of the Criminal Appeal Rules. However in this case the conduct of Counsel at the trial is of critical significance to whether the change in the Crown case occasioned a miscarriage of justice. This is so because where Counsel's "failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process" (Patel v The Queen [2012] HCA 29; 247 CLR 531 at [114]; Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [9] per Gleeson CJ). 3. If ever there was a case in which a review of the course of the trial reveals that Counsel for the accused's failure to complain about the deviation in the Crown case could be considered a "rational, tactical decision" and suggestive if not demonstrative of a lack of unfairness in the process then it is this case. A complaint that the Crown Prosecutor's address deviated from the pre-trial ruling might have led to a corrective direction about the features of the transactions that could be used in aid of coincidence reasoning and the re-agitation of the assertion that Ms Cornell had a tendency to knowingly certify false documents at least when Mr Moussa was involved in a transaction. It also could have led to a revised ruling that expanded the basis upon which the material could be deployed. However, instead of complaining about the deviation Counsel for Ms Cornell embraced it. It is completely understandable that Counsel for Ms Cornell accepted a Crown case based on an appeal to coincidence reasoning that was wider than that permitted by the pre-trial ruling, albeit one tied to Mr Moussa's involvement in the loan applications, as the price to be paid for avoiding a case involving tendency. A trial where that transpired did not, without more, involve a miscarriage of justice. In TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Gaudron J stated (at [26]): "The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open' … The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on [the] basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open." 1. In her written submissions Ms Francis instanced as an example of the prejudice that was occasioned as a consequence of the change in the Crown case the rejection of certain evidence that was sought to be adduced on behalf of Ms Cornell to rebut the alleged tendency evidence. As noted, during the trial Counsel for Ms Cornell sought to adduce evidence of an audit of some loan applications approved by her between 2003 and 2007. The trial judge described the outcome of the audit as "favourable" to Ms Cornell. Ms Cornell's Counsel had sought to tender this material as evidence that she "had a tendency to act (a) honestly, and (b) in accordance with the policies of the bank". 2. Ms Francis submitted that the "audit evidence established that 88 per cent of the 39 files randomly selected" which Ms Cornell had been involved in had a loan to value ratio of 80 per cent or under and thus did not require a valuation. Ms Francis submitted that this evidence was clearly relevant to rebut the coincidence case ultimately put by the Crown to the jury in that it was capable of showing that the fact that the loan to value ratios for the six CBA loan applications was under 80% was coincidental or at least not uncommon. 3. The audit report was made available to this Court. It lists 39 files by number and specifies a loan to value ratio for 36 of them of 80% or less. Thirty six files are listed as "S" for compliance which presumably means satisfactory. There is nothing in the document to suggest that the report was based on a random selection of files. A bank officer gave evidence on the voir dire. He was not familiar with the particular audit report but was familiar with the process that led to its creation. He stated that files were selected by reference to some criteria ("inbuilt targeted selection") although he did not know what they were. 4. Accepting that the audit report suggested that the approval of a loan with a loan to value ratio of 80% or less by Ms Cornell was relatively commonplace, Ms Francis' submissions on this topic overlook the reason the trial judge gave for rejecting its tender as material rebutting the tendency relied on by the Crown and the basis upon which the Crown ultimately sought to rely on coincidence reasoning. The trial judge concluded that, for the outcome of the audit to be admissible on a basis that rebutted the Crown case on tendency, the loans that were reviewed would have to have "involved Mr Moussa". This is so because the tendency that the Crown identified was one that involved dishonest conduct by Ms Cornell in connection with loans arranged by Mr Moussa. If there were bona fide loans approved by her in cases connected to Mr Moussa that would have rebutted the suggested tendency. Similarly the suggested lack of coincidence relied on by the Crown concerned loans in which Mr Moussa was involved. To rebut that case there would need to be evidence of Ms Cornell having approved loans from applicants connected to Mr Moussa that did not involve a loan to value ratio of less than 80% or which did not involve fraudulent income material or the like. There was no evidence of that kind. 5. Ultimately the Crown's address on coincidence and the summing up directed attention to the common feature of Mr Moussa's involvement in the various applications. Her Honour rejected the evidence of the audit on the basis that the audited transactions had nothing to do with Mr Moussa. Even if the material concerning the audit relied on by Ms Francis demonstrated that, with loan applications unrelated to Mr Moussa, loan applicants often applied for less than 80% of the stipulated purchase price, it was irrelevant to so much of the Crown case that was put to the jury that sought to rely on coincidence reasoning. The absence of any attempt by Ms Cornell's Counsel to re-tender this material after the Crown address or to otherwise point to the occasioning of prejudice from the change in the Crown's case confirms this conclusion. Ground 2: Significance of the pre-trial ruling 1. As stated during oral argument on the appeal Ms Francis contended that the effect of the pre-trial ruling was binding in the sense that, as a matter of law, it precluded the Crown from seeking to deploy the six CBA loan applications and features referred to by the Crown Prosecutor in their address from being used for coincidence purposes. On this approach it is arguable that it is irrelevant whether this caused the trial to become unfair because the Crown case changed. Instead it is arguable that, if the pre-trial ruling had the effect contended for, then the summing up would have necessarily involved a "misdirection … on matters of adjectival law" (Filippou at [13]) and that will be sufficient to "[constitute] a miscarriage of justice in the sense of a departure from trial according to law" (Filippou at [13]; Weiss at [18]). 2. This submission directs attention to the status of the trial judge's ruling. There can be no doubt that the trial judge was authorised to conduct a voir dire and make an advance ruling on the admissibility of the evidence and the use to which it might be put at the trial (Evidence Act s 192A; Criminal Procedure Act 1986 s 130A; cf TKWJ v The Queen at [39] to [45] per Gaudron J). In particular s 192A of the Evidence Act 2005 provides: "192A Advance rulings and findings Where a question arises in any proceedings, being a question about: 1. the admissibility or use of evidence proposed to be adduced, or 2. the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or 3. the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings." (emphasis added) 1. However neither a "ruling" or a "finding" is a judgment or order of a court capable of founding an appeal (Cheikho v Regina [2008] NSWCCA 191; 75 NSWLR 323 at [22] per Spigelman CJ with whom Barr and Fullerton JJ agreed). Further s 192A does not give a "ruling" any more force of law than it otherwise bears (WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [39] per Basten JA). Absent the giving of any direction or the granting of any leave under the Evidence Act, a ruling or a finding does not amount to anything more than an explanation of why evidence was admitted or rejected. In this case the ruling was to the effect that evidence would be admitted for tendency and coincidence purposes. It was accompanied by an indication that only certain similarities could be relied on for each use. Even though it was "authorised" by s 192A, that did not mean that a subsequent use inconsistent with what was stated in the ruling was of itself contrary to law. However two other legislative provisions may have had that effect. 2. The first are the provisions of the Evidence Act dealing with the adducing of coincidence evidence in a criminal trial namely ss 95, 98 and 101 which provide: "95 Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose. … 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding. (2) Subsection (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. Note. Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule. … 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." 1. The distinguishing feature of these provisions for present purposes is that none of them contain a provision making the adducement or deployment of coincidence evidence contingent upon a grant of leave or the making of a direction by a trial judge (cf s 38, s 112; s 136 see TKWJ at [41] to [42]). In oral argument Ms Francis pointed to s 95. Section 95 operates to constrain the use of evidence which is admitted on other bases at the trial (see El-Haddad v R [2015] NSWCCA 10 at [38] to [42] per Leeming JA). However s 95 refers to evidence that is "not admissible" for a coincidence purpose. It can be contrasted with evidence that is only "admitted" for a non-coincidence purpose i.e. s 95 does not operate to stamp a definitive limit on the use of evidence at the time the evidence is adduced. Subject to no unfairness having been occasioned, evidence could be admitted at a trial for a non-coincidence purpose and later be used for a coincidence purpose provided that ss 98 and 101 are properly addressed. In this case if this Court were to conclude that all of the loan applications ultimately relied on by the Crown were "admissible" for a coincidence purpose and that all of the similar features could be deployed, a matter I will return to, it would not matter at this point that the trial judge had only admitted it for a different purpose (leaving aside the matter already addressed by ground 1). It follows that I do not accept that the effect of the pre-trial ruling was that the summing up was necessarily inconsistent with s 95 of the Evidence Act. 2. The other provision that potentially gave the pre-trial ruling binding effect is s 130A of the Criminal Procedure Act 1986 which as at the date of the trial provided: "130A Pre-trial orders and orders made during trial bind trial Judge (1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless: (a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal. (3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding. (4) In this section, pre-trial order means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial." (emphasis added) 1. If this provision operated on the pre-trial ruling then its effect would be that it was "binding" on her Honour and it could only have been departed from if her Honour considered such a departure to be "in the interests of justice" (s 130A(1)). There is no evidence that her Honour expressly considered that matter (although the reasoning in relation to ground 1 would suggest that such a conclusion was at least reasonably open). However for the reasons already noted the ruling was not an "order" and therefore did not engage s 130A (see R v Ford [2009] NSWCCA 306 at [151] per Howie J). Thus, the pre- trial ruling did not have the necessary consequence that the direction in the summing up was inconsistent with s 130A of the Criminal Procedure Act 1986. 2. For the sake of completeness, I note that with effect from 8 January 2015 s 130A was amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2014 (Act No 88 of 2014) by including subsection (5) which provides "[t]o avoid doubt, this section extends to a ruling given on the admissibility of evidence." The proper application of this provision may require a close analysis of what exactly constitutes the "ruling" in a case like this. However it is not necessary to consider this further because s 130A(5) has no application to Ms Cornell's trial which took place in 2014. Ground 2: Was the evidence admissible for coincidence purposes? 1. The conclusion just noted still leaves the possibility adverted to in [106] above that the use that was sought to be made by the Crown of the six CBA loan applications was not supported by ss 98 and 101 of the Evidence Act (and precluded by s 95) with the consequence that the trial judge's directions on coincidence evidence amounted to a misdirection on a matter of "adjectival law" as discussed in Filippou. Although Ms Francis did not address this possibility the Crown raised the issue in its written submissions in that it contended that if, after the evidence of the six CBA loan applications had been led, the "appropriate application" had been made there was "no reason why … the same evidence could not also have been held to be admissible as 'coincidence' evidence". 2. As stated notice of reliance on the evidence as coincidence evidence was given in advance of the trial (s 98(1)(b)). I discussed the operation of the above form of s 98 (and s 101) in MR at [59] to [79]. I will not repeat that discussion. To properly apply s 98 (and ss 55 and 101) it is necessary (or at least helpful) "to identify the 'events' that are said to have occurred, the particular act or state of mind that it is said that the evidence of the events proved, the relevant similarities that are to be relied upon and the reasoning process that is sought to be engaged" (MR at [66]). In this case the relevant "events" are the six CBA loan applications and Mr X's loan application and the state of mind that it is said the events prove is that Ms Cornell knew that Mr X's pay slips and employment details were false. The similarities in the events were that all the loan applications involved a falsely overstated purchase price, and all of them except for Ms Moussa's application involved false employment letters, pay slips and bank statements. There was direct evidence that four of the loan applicants were connected to Mr Moussa, namely Mr X's application, Moussa, Galdas/ Lawrence and Kutchera and all seven were presented to Ms Cornell for approval. The relevant reasoning that was sought to be engaged was that, in light of those similarities, the presentation of those loan applications to her was not coincidental but instead occurred because she knew that the loan applications including the employment details were bogus. 3. The first step in the process of considering this evidence is to determine whether that evidence is capable of affecting the probability of a fact in issue (DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 at [6]; "DSJ"; MR at [67] to [73]). The evidence was certainly capable of proving that Mr X's loan application was the continuation of a scheme of fraud pursued by Mr Moussa. The second step is to determine whether the evidence has significant probative value (s 98(1)(b); DSJ at [7]). As noted an assessment of whether the evidence that these events occurred has significant probative value requires a consideration of the combined effect of all the similarities concerning the events (MR at [79]) as well as a determination of whether that evidence, when taken with any other evidence that is led or to be led by the adducing party has the "capacity to be of importance or of consequence in establishing the fact in issue" (DSJ 9 at [72]; MR at [78]) namely that Mr X's loan application was false. In this case that other evidence includes the evidence connecting Ms Cornell to Mr Moussa (see [62ff]). When that evidence is considered with the evidence concerning the loan applications, bearing in mind the similarities between them, then this test is more than satisfied. Otherwise no relevant form of prejudice is apparent (cf s 101). In my view and notwithstanding the trial judge's ruling, the evidence of the six CBA loan applications was admissible on a coincidence basis and all their common features were available to have been deployed. Conclusion on grounds 1 and 2 1. The deviation in the Crown address and the summing up from the pre-trial ruling concerning the evidence available to be used for coincidence purposes did not occasion any unfairness to Ms Cornell at her trial so as to give rise to a miscarriage of justice. The effect of the pre-trial ruling was not such that a summing up that was inconsistent with it per se resulted in a wrong decision of any question of law within the meaning of s 6(1) of the Criminal Appeal Act 1912. Otherwise the evidence of the six CBA loan applications and all their similarities was properly admissible for coincidence purposes. 2. It follows from those conclusions that I would reject grounds 1 and 2 of Ms Cornell's appeal against her conviction. Ground 3: Unreasonable verdict 1. Ground three of the appeal contends that the jury's verdict was unreasonable, or cannot be supported, having regard to the evidence. In raising this ground Ms Cornell implicitly seeks a grant of leave under s 5(1)(b) of the Criminal Appeal Act 1912 to raise grounds of appeal involving questions of fact or questions of mixed law and fact (Rasic v R [2009] NSWCCA 202 at [12]). I propose that leave be granted. 2. This ground requires this Court to "ask itself … 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" (M v The Queen [1994] HCA 63; 181 CLR 487 at 493; "M"). In doing so this Court must undertake its own "independent assessment of the evidence, both as to its sufficiency and its quality" (Morris v R [1987] HCA 50; 163 CLR 454 at 473). Thus it must consider any competing evidence to that presented by the Crown and weigh the conflicting evidence (SKA v R [2011] HCA 13; 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ). 3. In relation to the advantages enjoyed by the jury in hearing and observing witnesses compared to this Court in SKA at [13] French CJ, Gummow and Kiefel JJ stated: "The 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 …[at 494] went on to say: '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'." 1. Ms Francis' written submissions in support of this ground pointed to the significance of the coincidence evidence contending that it was the critical evidence pointing towards guilt. Ms Francis contended that the evidence of the six CBA loan applications was not admissible for coincidence purposes at least in the manner utilised by the Crown and reflected in the summing up and without it the verdict cannot be supported. I have already rejected the premise of this submission. In my view the six CBA loan applications were admissible for coincidence purposes in the manner already explained above. I will address this ground on that basis. 2. I have summarised the evidence at the trial. Contrary to Ms Francis' written submissions, even without the coincidence evidence of the six CBA loan applications the Crown case was strong. Mr X's loan application was clearly fraudulent. It is true that Mr X's evidence should be treated with circumspection. However there was other material supporting his evidence so far as it implicated Ms Cornell. The documentary material established a connection between Mr Rachid and Mr X's loan application. Further the funds from Mr Reddy provided indirect support for Mr X's evidence of Mr Moussa's involvement, given Mr Reddy's past connection to Mr Moussa (see [49]). It follows that the evidence of Ms Cornell's telephone contact with Mr Moussa and Mr Rachid was incriminating in light of her previous dealing with Mr Moussa in 2003. Ms Cornell's explanation for that telephone contact was specious. Further the evidence pointed to Ms Cornell having failed to have the property valued despite a direction from her superior to do so. As noted the trial judge emphasised the importance of finding that Mr Moussa was present at Mr X's meeting with Ms Cornell. This may have been over-cautious. However, accepting its significance to my own deliberations, I consider that it was well open to the jury to be satisfied of that fact. Finally, when the Crown case is considered with the evidence of the six CBA loan applications on a coincidence basis that embraces all their common features then I consider it overwhelming. 3. I would reject ground 3. Conclusion on conviction appeal 1. It follows that I would dismiss Ms Cornell's appeal against her conviction. Appeal against Sentence 1. The sentences imposed on Ms Cornell are set out above at [6]. Two grounds of appeal are raised in relation to sentence which I will address shortly. It is not suggested that either of the sentences were manifestly excessive. At the outset I note the following seven matters about the sentencing judgment. 2. First, her Honour described the facts of the offence in some detail. Her Honour found that the jury must have accepted that Mr Moussa was present with Mr X when he applied for a loan and in doing so that they took into account the lack of coincidence with respect to the CBA loans. 3. Second, her Honour addressed Ms Cornell's criminality and her role in the fraudulent scheme compared to Mr X finding as follows: "[Ms Cornell] was part of a well organised criminal enterprise which consisted at least of her and Moussa. The level and degree of sophistication of the whole plan when one takes into account the creation of false documents including payslips, bank statements and the entry on electronic devices and the maintenance by Mr Moussa of the front that he used as described by Mr X, the degree of organisation and criminality is high for the entire organisation. Again, it is acknowledged that there is no evidence of the offender participating in this part of the process, however, it was part of the organisation as a whole and she was an integral part of the whole organisation. I find the offender's level of involvement and knowledge of the entire operation was at a greater level than was Mr X. He did not know of her involvement which suggests she, in being able to keep her own position secret, was protecting herself." 1. Third her Honour addressed the "objective seriousness of the offence" being that the amount of the loan was $460,000.00 and the significance of the position of trust she occupied as a bank employee. 2. Fourth, her Honour addressed Ms Cornell's subjective circumstances. Her Honour noted that at the time of the offences she did not have any criminal record but since then she had been convicted "of a different type of fraud matter which occurred after the commission of the offence" (namely insurance fraud). For that offence Berman DCJ imposed an intensive corrections order. Her Honour held that, to a "small extent", that conviction deprived her of leniency that would otherwise be afforded on account of her prospects of rehabilitation and in assessing her general mental health issues. Her Honour noted that Ms Cornell had not shown any remorse and that her prospects of rehabilitation were "difficult to assess". 3. Fifth, Her Honour noted that Ms Cornell had been diagnosed as suffering from a major depressive disorder and generalised anxiety disorder. Her Honour noted that the proceedings and her difficult family circumstances "weighed heavily on [the] offender". Her Honour noted that in light of her condition and her concern about her daughter's welfare, a custodial sentence would be onerous. However her Honour did not accept that there was any connection between the offences and Ms Cornell's mental health problems. 4. Sixth, her Honour referred to the position of Ms Cornell's daughter. As at the date of sentence her daughter was 26 years old. Her position was described by Berman DCJ in the following extract from his sentencing judgment which was before her Honour in terms her Honour implicitly accepted: "I turn now to really one of the most important factors in assessing the appropriate sentence to impose upon Ms Cornell and I want to say quite clearly and plainly were it not for this factor Ms Cornell would go to gaol full-time. Her offence was serious and, ordinarily, in the absence of the factor I am about to mention, nothing less than full-time custody would be appropriate. Ms Cornell's daughter, … , was born with a significant injury. She suffers from sickle cell disease. Regular blood transfusions are required but one of the consequences of the disease has been, … , the development of further problems. As a young child she suffered a stroke and is now affected by frontal lobe injury. And in more recent times she has begun to experience seizures, any one of which may be fatal. It is something of an understatement to say that Ms Cornell is [her daughter's] primary carer, indeed in many respects, she is her only carer. [Her daughter's] problems are both physical and mental. I do not feel the need, in these public remarks on sentence, to go into the sort of behaviour that [her daughter] exhibits but I will note that it is the sort of behaviour that requires careful and close attention by someone who is willing to look after her. The person who best fulfils that role is of course her mother, Ms Cornell." 1. As did Berman DCJ, her Honour accepted that the position of her daughter amounted to "exceptional circumstances" (see R v Edwards (1996) 90 A Crim R 510; "Edwards"), a matter I will return to. Her Honour noted the lack of family support to look after her daughter and the arrangements that must be made to provide medical support. Her Honour stated: "While the courts will take those matters into account and as sympathetically as possible it cannot be the case that these considerations can override the need to take into account the objective seriousness of the offence when imposing a sentence, nor should the offender escape an appropriate sentence simply because of the hardship to her daughter. As Judge Berman observed, she was aware of the circumstances of her family when this offence was committed. The considerations that I have mentioned will affect the non-parole to parole ratio of the sentence imposed." 1. Later her Honour noted that the "considerations of general deterrence in cases such as this require a significant consideration in sentence". Her Honour said that she would take into account the hardship to Ms Cornell's daughter to effect a "significant alteration of the statutory parole to non-parole ratios". Ground 2 of the application for leave to appeal addresses this aspect of the sentencing judgment. 2. Seventh, her Honour addressed the question of parity between Ms Cornell and the sentence imposed on Mr X. Mr X pleaded guilty to offences under s 178BA of the Crimes Act and s 300(2) of the Crimes Act. After allowance for a discount of 50% he was sentenced to one year and three months for the former offence and two years for the latter offence. Her Honour stated as follows: "The other matter that I would take into account is the issue of parity. It was considered appropriate by Judge Zahra that Mr X who at that time had very little in the way of prior criminal antecedents should be sentenced to a custodial term of approximately four years. He was given ultimately a 50% discount for assistance and an early plea of guilty. His own subjective circumstances were strong but conceded not as strong as this offender's and did not amount to exceptional circumstances. It is my assessment when considering the issues of parity that this offender was far more involved in the criminal organisation than was Mr X who was used and duped, it would seem to me, although somewhat willingly by Mr Moussa." (emphasis added) Ground 1: Ms Cornell's involvement in a criminal organisation 1. Ground 1 of the application for leave to appeal against sentence contends that her Honour erred in concluding that the appellant was "far more involved in the criminal organisation" than Mr X and that this was a matter to be taken into account in fixing an appropriate sentence. 2. I have referred to the sentence imposed on Mr X at [131] above. The starting point for the heaviest sentence imposed on Mr X was four years imprisonment which was one year less than that imposed on Ms Cornell. 3. In her written submissions Ms Francis submitted that the finding that Ms Cornell was "far more involved in the criminal organisation" than Mr X was the sole, or at least principal, basis upon which her Honour distinguished between the position of Mr X and Ms Cornell. I accept that contention. Ms Francis also relied on an observation by her Honour that Ms Cornell's involvement in the six CBA loan applications "point[s] to an involvement of the offender in the criminality of the offence to a high degree" and complained that her Honour has "adverted to different criminality for which the appellant was not to be sentenced and which pre-dated the present offences by some years". 4. It is true that her Honour referred to Ms Cornell's conduct in relation to the CBA loan applications but there was nothing improper in her Honour doing so. At no point in the sentencing judgment did her Honour purport to sentence Ms Cornell for her involvement in "different criminality", namely the CBA loan applications. Instead her Honour made an assessment of Ms Cornell's level of involvement in the subject offences by reference to evidence at the trial about those offences which included earlier transactions involving her and Mr Moussa. There was no reason why her Honour could not have regard to that evidence when assessing Ms Cornell's relative standing amongst the perpetrators of the fraudulent scheme, provided that her Honour only sentenced Ms Cornell for the offences for which she was convicted. That evidence pointed overwhelmingly to a long standing pattern of co-operation between Ms Cornell and Mr Moussa to effect frauds of which the subject offences were one manifestation. The identity of the loan applicants changed over time but Ms Cornell and Mr Moussa's involvement persisted. Her involvement as a bank insider was crucial and represented a grave breach of trust. She clearly had a far greater involvement than Mr X. If anything, the one year differential in the starting point for their respective sentences was generous to her. 5. I would reject ground 1 of the application for leave to appeal against sentence. Ground 2 : Exceptional Circumstances 1. Ground 2 of Ms Cornell's application for leave to appeal against sentence contends that her Honour erred in confining the relevance of the health of Ms Cornell's daughter, which was conceded to be an exceptional circumstance, to the length of the non-parole period. 2. I have referred to the circumstances concerning Ms Cornell's daughter as disclosed to the sentencing judge. As noted, when sentencing Ms Cornell for another offence, Berman DCJ had concluded that the circumstances of her daughter's vulnerability were such that the consequences for her daughter of sending Ms Cornell to gaol were "exceptional". This characterisation was accepted by her Honour in this case. 3. The phrase "exceptional circumstances" as deployed in this context derives from the following passage from the judgment of Wells J in R v Wirth (1976) 14 SASR 291 which was described by Gleeson CJ in Edwards (at 516) as the "most frequently cited Australian judgment on [the] subject" of the relevance of the impact of incarceration of an offender on third parties: "… But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go." (emphasis added) 1. Edwards was a Crown appeal against a sentence of periodic detention for manslaughter that was imposed because of the hardship the offender's full time custody would cause to a long term patient at an institution who was cared for by the offender. This sentence was set aside on the basis that those circumstances were not properly characterised as "exceptional" (at 516 to 517 per Gleeson CJ). The sentencing judge was found to have "deflect[ed] her[self] from imposing the sentence of full-time imprisonment, which she plainly indicated she would otherwise have imposed" (at 518). Thus in Edwards the sentencing judge was found to have wrongly treated the impact on a third party as determinative of the type of sentence that was to be imposed. 2. On one view, Edwards is authority for the principle that exceptional circumstances are required to justify an exceptional sentencing outcome. However Edwards has come to be treated as authority for the broader proposition that "hardship to family members caused by a prison term can only be taken into account in 'highly exceptional circumstances'" (Mokhaiber v R [2011] NSWCCA 10 at [30] per Price J, with whom James and Hislop JJ agreed; see also Winter v R [2011] NSWCCA 59 at [11] per Blanch J, with whom McClellan CJ at CL and Hoeben J agreed; Hay v R [2013] NSWCCA 22 at [49] per Simpson J, with whom Fullerton and Davies JJ agreed). However there is some authority to the effect that some weight can be attached to the impact on children of an offender's incarceration even if exceptional circumstances cannot be demonstrated (see R v Girard [2004] NSWCCA 170 at [21] per Hodgson JA, with whom Levine and Howie JJ agreed). Further family hardship falling short of exceptional circumstances has nevertheless been held to be a matter capable of constituting a basis for a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 and thus affects the length of the non-parole period (Delaney v R; R v Delaney [2013] NSWCCA 150 at [83] per Hoeben CJ at CL, with whom Harrison J and I agreed). Given that exceptional circumstances were found in this matter it is unnecessary to consider this further. 3. In her written submissions, Ms Francis embraced the finding of exceptional circumstances but contended that her Honour did not properly give effect to it by supposedly confining its relevance to the fixing of the non-parole period and ignoring it in determining the head sentence. In support of this contention Ms Francis pointed to the following passage from the judgment of Mason CJ and McHugh J in Bugmy v The Queen [1990] HCA 18; 169 CLR 525 at 531 ("Bugmy"): "Considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function." 1. The appellant in Bugmy had been sentenced to a minimum term of 18 years imprisonment for murder. The head sentence of life imprisonment was fixed by legislation. The majority of Dawson, Toohey and Gaudron JJ concluded that the sentencing judge had erred in fixing a long minimum term by being "unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term" such as the assessed risk of his reoffending, his behaviour in prison and the need to protect the community (at 537). Mason CJ and McHugh J dissented. Consistent with the above passage, their Honours found that the sentencing judge did not commit the error found by the majority (at 533.2). 2. It follows that some caution should be exercised in applying the passage from Bugmy relied on by Ms Cornell. However even that passage accommodates the attribution of differing weight to the various factors affecting sentence for the purpose of fixing the head sentence as opposed to the non-parole period. 3. The most common applications of the principle which Edwards is said to stand for are either at the point of considering whether a full time custodial sentence should be imposed, which was the circumstance faced by Berman DCJ, or at the point of determining whether special circumstances exist and, if so, the length of the non-parole period (see Regina v Robert Brian Grbin [2004] NSWCCA 220 at [33] per Dunford J, with whom Levine and Howie JJ agreed). However there is no reason why a finding that exceptional circumstances exist is not a matter that a sentencing judge is entitled to give weight to in the fixing of a head sentence. It is possible that there will be cases where the adverse impact on third parties that the exception is designed to address will not be eliminated or minimised by the release of the applicant on parole. For example a travel restriction imposed as a condition of parole could prevent an offender returning to their home to care for a close relative. Nevertheless, consistent with both judgments in Bugmy, it is far more likely that hardship to family members will be a factor that warrants significant weight in fixing the non-parole period if special circumstances are found. This is because in most cases the hardship to the affected party from the sentencing of the offender to a term of imprisonment will disappear on their release. Certainly that is the case here. 4. A consideration of the entirety of the sentencing judgment, including the passage noted above at [129], reveals that her Honour clearly regarded the circumstances of Ms Cornell's daughter as a matter that warranted a significant reduction in the non-parole period. Critically I do not interpret the sentencing judgment as revealing that her Honour denied the potential relevance of the finding of exceptional circumstances to the fixing of a head sentence. Instead her Honour reasoned that, in this case, it was not a matter deserving any real weight having regard to the objective seriousness of her offending. Given that the nature of the hardship caused to her daughter from her imprisonment would dissipate on her release, such an approach does not involve any error of the kind discussed in House v R [1936] HCA 40; 55 CLR 499 at 504 to 505. 5. I would reject ground 2 of the application for leave to appeal. Proposed orders 1. Accordingly I propose the following orders: 1. Leave to raise grounds 1, 2 and 3 of the conviction appeal be granted; 2. The appeal against conviction be dismissed; 3. Leave to appeal against sentence be granted; and 4. The appeal against sentence be dismissed. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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: 24 September 2015