Bond v The Queen

[1992] HCATrans 303

..

' "I

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P20 of 1992

B e t w e e n -

ALAN BOND

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

GAUDRON J

Bond 1 15/10/92

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 15 OCTOBER 1992, AT 3.00 PM

Copyright in the High Court of Australia

MR I.D.F. CALLINAN, OC:  May it please the Court, I appear

with my learned friend, MR C.D. STEYTLER, OC, for

the applicant. (instructed by Parker & Parker)

MR J.R. McKECHNIE, OC: If Your Honours please, with my

learned friend, MR M. MISCHIN, I appear for the

respondent.	(instructed by the Director of Public
Prosecutions)

BRENNAN J: Mr Callinan.

MR CALLINAN:  Your Honours, in our submission, this is an

appropriate case for special leave for three

reasons: the first is that it raises a very

important point of law - that is, important to the

financial and business community of Australia - the

interpretation and application of section 126 of

the Securities Industry Code. Now, Your Honours,

of that section three general statements can be

made. The first is that hitherto the section has

not been directly construed by any supreme court of

any State in Australia in any reported case and we

believe that indeed it has not been construed in

any case.

Secondly, the surrounding and related

sections, those being the sections in part 10 of
the Act, have been construed by the Supreme Court

of New South Wales, the Court of Appeal of New

South Wales and the Full Court of South Australia.

Leaving this, Bond's case, aside, the weight of

authority, to the extent that it bears upon this

particular section, inclines our way. However, now

that the Court of Criminal Appeal in Western

Australia has unanimously construed the section in the way in which it has, there is obviously further

room for division of judicial opinion. Indeed,

His Honour Mr Justice Murray, with whom the other

two judges agreed on this point, expressly

preferred the reasoning of a dissenting judgment of

His Honour Mr Justice Cox in a decision in South

Australia to which I will give Your Honours brief

reference shortly.

Your Honours, the third matter to which we

would refer in relation to the construction of

section 126 is this: that the court took a very

far-reaching and wide view indeed of the operation
of the section; a view which, if applied, could

give rise, we would suggest, to all sorts of

inconveniences and would attach to many, many

transactions, indeed for practically all share trading transactions, notwithstanding any real culpability or not.

Bond 2 15/10/92

Your Honours, could I give you one brief

reference to the passage to which I would refer in

that connection, and it is a passage in the

applications book which begins at page 228 after,

in effect, either distinguishing or refusing to

follow the body of judicial opinion which inclines

in our direction, at the foot of that page

His Honour, whose judgment is the judgment of the

court on this point, wrote this:

in my view none of the authorities cited

is persuasive of such a conclusion, which I
would find to be contrary to the evident

policy to which those provisions are designed

to give effect. They are sections designed to

secure that any transaction by way of dealing

in securities is conducted in circumstances of
fairness and honesty, without any secret
attempt to profit from the fact that one party

to the transaction has the other at a

disadvantage.

Now, in our submission, as a statement of principle

that must be far too wide and, indeed, that appears

to be the ratio of His Honour, and the - - -

GAUDRON J: Well, you say that but, in effect, His Honour

only gave effect to the ordinary meaning of the

words, did he not? What your argument would do is

have His Honour read them down or have the words
read down by reference to some qualification that

is not expressed.

MR CALLINAN:  Your Honour, Their Honours in the other

cases - Your Honour probably has looked at them -

but they did involve, all of those decisions to

some extent, a reading down if not of this section

certainly of the sections that were in the same

part of the Act.

GAUDRON J: Well, before one gets to policy considerations,

surely one has to see why you should depart from

the ordinary language of the section.

MR CALLINAN: Well, because of the manifest intent, we would

submit, to be gleaned from the language of the

part, which was, after all the view that was

adopted by His Honour Mr Justice McHugh in the

Hooker case, to which I will refer Your Honours, which was determined by the New South Wales Court

of Appeal, and Their Honours said there, in effect, that the ordinary meaning could not apply to every

transaction, and indeed Their Honours unanimously

took a view that it simply was not open to apply

the words slavishly to every transaction. So, yes,

I accept, with respect, that the approach does

involve some reading down, but the reading down is

Bond 15/10/92

necessitated by the fact that slavish application

of the literal language is either impossible or so manifestly unacceptable that it cannot be adopted.

BRENNAN J:  What is the reading down for which you contend,

Mr Callinan?

MR CALLINAN:	Your Honours, we would submit that the section will operate, or should be interpreted to operate,
only in respect of transactions in the course of the business of dealing, or in the course of
orthodox dealing in securities.
BRENNAN J:	The business of dealing or the orthodox course

- I am not sure what the second of those phrases

means.

MR CALLINAN: Well, in the business of dealing.

BRENNAN J:	The business of dealing.
MR CALLINAN:	In the course of the business of dealing.

Now, our argument down below, with the greatest of

respect, was misunderstood. We did not submit, as

is suggested by the reasons, that an isolated

transaction could not be in the course of the

business of dealing. What we submitted was that

there must be a course or a business of dealing in

train of which the transaction is part before the

section would operate.

BRENNAN J: But, Mr Callinan, the offence created by

section 126(1) of the Code has, as its relevant

element, inducing another person "to deal in

securities".

MR CALLINAN:	Yes.
BRENNAN J:	Now, what phrase would you interpolate, by way

of reading down, that could maintain the sense of

that section?

MR CALLINAN: In this case?

BRENNAN J: Generally.

MR CALLINAN:	Yes: "During the course of the business of dealing in securities".
BRENNAN J:	"To induce another person to deal in securities in the course of dealing in securities"?
MR CALLINAN:	Yes. Well, one might, with respect, want to

abbreviate the language to some extent, but that is

the sense of it.

Bond 4 15/10/92

BRENNAN J: Well, I mean, the difficulty that it faces, as

it seems to me, is that the relevant element is directed to a discrete or specific transaction,

namely that which is induced, and you are seeking to introduce, by your submission, an entirely new

element, not really to read down any of the words

that are there.

MR CALLINAN: Well, we would put it as qualifying them, but

I accept, of course, the way in which Your Honour

has put it, but that did not trouble the other
courts who have dealt with the related sections in

the same part when they came to discuss them and

indeed decide, in the way in which, we would

submit, this Court should decide the matter if

special leave is granted.

BRENNAN J: Yes. Well perhaps you could take us to those

authorities.

MR CALLINAN:  Yes, Your Honour. Your Honours, could I take

them in their historical order, and the first is

Ryan v Triguboff, (1976) 1 NSWLR 588, a decision of

His Honour Mr Justice Lee - and Your Honours, that was an insider trading case - and at page 601, just below C, just before D - and this dealt with the

Act which preceded the current one but used very

similar language, I think relevantly the same

language, and if I begin with the sentence, "Part

VIII", at about point 5 of the page:

dealt with "Trading in Securities" and created
certain offences and provided penalties
therefor. In my view, it is clear that, prior
to the insertion of s. 75A into the Act by the

Securities Industry (Amendment) Act, 1971, the only "dealing in securities" that the Act concerned itself with was in relation to the business of dealing, and it was only in this context that the definition "dealing in

securities" had any significance. What the

definition did was to define what would

ordinarily be regarded, in any event, as the usual or ordinary way in which a business of dealing in securities is conducted. Persons

engaged in a business of that kind were the

persons with whom the Act was concerned.

Now, that certainly is not determinative, but it is

the first case, as we understand it, which invites

the trend which then followed.

TOOHEY J:  I did not think that was your submission,

Mr Callinan. I thought you had eschewed a

submission that a person had to be engaged in the

business of dealing in securities - - -

Bond	15/10/92
MR CALLINAN:	I did, indeed, Your Honours, but I read that

passage to emphasize that there has to be a

business flavour about the transaction. Now, I do

not suggest that that case is in any way
determinative of the point, but it happens to be
the first case in the line on that part of the Act
and which also emphasizes or deals with the

business nature of the transactions of which the

impugned transaction is one. But, with the

greatest of respect, what Your Honour says to me I

agree with, I simply refer to it to emphasize the

reference to the business flavour which His Honour
thought the definition and the part of the Act

imported into the language, and it becomes clearer as one ·goes along. Could I refer to the next case

in the line, which is National Companies and

Securities Commission v Industrial Equity Limited.

Your Honours, it is (1981) 6 ACLR 1, a decision of

His Honour Mr Justice Needham, and I wanted to take

Your Honours to the passages at pages 20 and 21.

At about point 6 on page 20, His Honour said,

having dealt with other aspects of the matter:

If I were wrong in that conclusion, I am

of opinion that the plaintiff must fail on
this branch of its case because the

Acquisition of Shares Code is not "a law in

force in New South Wales relating to trading

or dealing in securities" - s 14(l)(a)

Securities Industry Code. "Trading" is not

defined in the Code, and its meaning is clear
enough; "dealing" is defined, as follows

(unless the contrary intention appears):-

And then His Honour sets out the definition and,

after doing that, continues:

The plaintiff submitted that "acquiring"

a share in a company was, in accordance with

the definition, "dealing" in that share.	Such
and I think the definition would need to be	a conclusion is, on its face, unreasonable,
more precise to require it to be drawn. The
definition has about it a business flavour.
That flavour is emphasized bys 14(l)(c),
where the court, "in the case of persistent or continuing breaches -

leave out some words -

relating to trading or dealing in securities"

may restrain a person "from carrying on a

business of dealing in securities". Such an

order would be inapt where a person had

breached a provision of the Acquisition of

Shares Codes by, for example, purchasing a

number of shares in excess of that permitted.

Bond 6 15/10/92

The subject matter of the Acquisition of

Shares Code is plainly different from that of

the Securities Industry Code, and I think that
the phrase "trading or dealing in securities"

relates to the carrying on of that activity as

a business or profit making venture. The

Acquisition of Shares Code is not a law

relating to such an activity.

So again there is emphasis on the necessity for there to be a business, in effect of course of

dealing. The next case, Your Honours, is

Von Doussa v Owens (No. 1), (1982) 30 SASR 367.

Your Honours, in this case Her Honour

Justice Mitchell wrote the principal judgment for the majority. His Honour Mr Justice Walters agreed

with Her Honour, and His Honour Mr Justice Cox

dissented.

Your Honours, Justice Mitchell deals with the

matter at page 376 at about point 5. Her Honour
says, in relation to the decision of His Honour

Mr Justice Needham:

He relied partly upon the decision of in that case were somewhat complicated -

Needham Jin National Companies and Securities

and Her Honour sets out some of the facts of that

case, sets out the definition then, on the next

page reads the passage that I have already read to

Your Honours, I will not repeat it, and then

Her Honour says:

I respectfully agree with those reasons.

This is at page 377, about point 5.

The definition of "dealing" in the Companies

with that ins. 4 of the Securities Industry Acquisition of Shares Code is in pari materia	Act except that, in the first mentioned Code,
a reference is made to "sub underwriting" as
well as to underwriting securities. It is
notable, however, that throughout that Code, where appropriate, the word "acquisition" of
shares is used and not the word "dealing" in shares. Notwithstanding the inclusion in the
definition of "dealing" in securities of
acquiring, disposing of, and subscribing for
securities the mere acquisition, disposition or subscription cannot, in my view, properly
be described as "dealing" in securities. The
acquisition disposition or subscription may be
part of a dealing. However, that is not the
end of the matter.

Bond 7 15/10/92

Now, Your Honours, a dissenting view - and I do not

think I need read it but a quite emphatic and

strong dissenting view - was expressed by

His Honour Mr Justice Cox, at pages 383 to page 386

of the report. Now, I mention that, Your Honours,

because that dissenting view was expressly
preferred unanimously by the Court of Criminal

Appeal in this case.

Your Honours, the last case in the line is

a decision of the New South Wales Court of Appeal

in Hooker Investments Pty Ltd v Baring Bros

Halkerston & Partners Securities Ltd & Ors (No 2),

(1986) 10 ACLR 523. Your Honours, the facts are

not difficult. They are referred to in the

headnote; perhaps I should go to them:

The plaintiff alleged the defendants had

breached s 128 of the Securities Industrial

(NSW) Code -

that is the section which, next but one, follows

the section 126, of course, and is in the same part

of the Act.

The allegations in the statement of

claim ..... were that an employee of one of the

defendants had information material to the

price of Email's shares which was "not

generally available," ..... Subsequently, the
first defendant entered into an underwriting

agreement with Email for the issue of shares

in it, and the second and third defendants

entered into subscription or sub-underwriting

agreements.

Now, the reasons of the Court were given by

His Honour Mr Justice McHugh. At the foot of

page 525, His Honour sets out the section and then

deals with the matter, relevantly at page 529, and

His Honour commences by saying, in the first

complete paragraph on that page:  Section 128 occurs in Pt X which is

headed "Trading in Securities". The majority

of the sections in that Part are confined to

penalizing dealings by way of purchase and

sale.

And then His Honour discusses all of the sections but does not mention, I might say, section 126. He

mentions the sections around it, but does not refer

to it. Then, in the next paragraph His Honour

says:

The transactions which are penalized by

these sections are those which involve

Bond 15/10/92

securities which are bought and sold. The

term "price" in ss 123, 124, 125 and 127 is
concerned with the sum of money or its
equivalent for which a security is bought,
sold or offered for sale. Clearly "the price"
of "securities" in these sections is the sum

of money or its equivalent for which

debentures -

et cetera -

and any rights or options in respect of them

are bought, sold or offered for sale. The

expression "price" in those sections clearly

does not cover the sum to be paid to a company

upon the issue and allotment of its shares. It is, of course, sometimes appropriate to describe the sum paid by subscribers -

and then in the next sentence

But in ss 124, 125 and 127 the expression

"price" of securities appears in a context

which indicates quite plainly that the price

is the sum for which the share -

et cetera -

can be sold to a third party. Prima facie,

therefore, this meaning is applicable to the

expression "price of those securities" where

it appears ins 128.

And then His Honour seems expressly to approve the

judgment down below of His Honour Mr Justice Young,

which is to a similar effect. Perhaps I will just

read the first sentence of that part of it which is

set out:

"Accordingly, it seems to me that one

approaches s 128 with the idea that it is

directed to people who are trading in the

market place and are involving themselves in a

transaction where a price could be affected by

information -

and so on. Then Their Honours said:

We agree with his Honour thats 128 is -

so directed. And then:

Other considerations both within and

withouts 128 confirm that the prima facie
meaning of "the price of those securities" in

s 128, derived from the context, is the

applicable meaning. First it is clear that

Bond 9 15/10/92

the whole of the definitions of "dealing" and

"securities" ins 4 cannot apply wherever

those two terms are used ins 128. Thus

s 128(5) prohibits dealing in any securities

if "trading in those securities is permitted on a stock market". Section 128(9) provides

that the section does not preclude the holder

of a dealers licence from dealing -

and so on. I do not think I need read the balance

of the passage. His Honour makes it clear that

section 128 or the references in section 128 are

not always to be given the literal - - -

BRENNAN J: Well, one can understand this line of cases,

Mr Callinan, because in each instance, as I read the cases, there is the consideration of the

statutory definition in section 4 in conjunction

with the specific section creating an offence.

MR CALLINAN:	Yes.
BRENNAN J:	And looking at one offence-creating section with the general definition, it may be appropriate,
because of the express language of the
offence-creating section, to read the definition in
a qualified sense.
MR CALLINAN:	Yes.

BRENNAN J: Here, if one approaches this section in the same

manner, it seems to me the argument goes completely

against you because of the aspect that I mentioned

earlier, namely what has to be induced is a dealing

in securities, and it seems impossible to give that
section a meaning if one treats "dealing in

securities" as meaning "dealing in securities in

the course of a business of dealing in securities".

There is just no foundation for adding those last

words if one looks simply at the specific or

discrete transaction.

MR CALLINAN: Well, Your Honours, I am being repetitive but

one can say it of the other sections.

Your Honour's observations, with the greatest of

respect, can be applied with equal force to each of

the other sections which have been considered by

the other courts.

BRENNAN J:  Can it?

MR CALLINAN: Well, we would submit so.

BRENNAN J: Well, it was not the way in which I was reading

what Mr Justice McHugh had said or, for that

matter, the other judgments. For example, at the

bottom of 529:

Bond 10 15/10/92

Other considerations both within and

withouts 128 confirm that the prima facie
meaning of "the price of those securities" in
s 128, derived from the context, is the

applicable meaning.

In other words, His Honour is construing 128 and

then going to section 4 to see whether or not one

can take into 128 the definition of section 4.

Because of the construction he gives to 128 he

finds that he cannot take in section 4 in the same

way.

MR CALLINAN: Well, Your Honours, if one goes back to

section 128, which is set out - most of it is set

out at pages 525 and 526 - there is, in fact,

nothing in those which would compel a different

approach to that section from the approach that

might appropriately be adopted to section 126.

BRENNAN J: Well, that might be open to debate, as to

whether this decision is right but, for example,
where one sees a phrase such as:

A person who is, or at any time in the

preceding 6 months has been, connected with a

body corporate shall not deal in any

securities of that body corporate -

one has there a flavour, at least, of endeavouring

to put a wedge between the proposed dealer and the

body corporate. One can understand then that one

might have a series of transactions rather than a

singular transaction in mind. But with 126 it

seems to focus on only that transaction which is

induced.

MR CALLINAN: But, Your Honour, it is any dealing, any

individual dealing, which appears to be proscribed

by section 128. In other words, in the respects

that Your Honour puts to me it is really

indistinguishable from section 126. There is

nothing about section 128 which compels, with the

greatest of respect, a different conclusion from

the one in respect of section 126, and the only other thing I want to say on this aspect of the matter is that the court below's language is

expressed in extremely wide terms, terms far too

wide to be appropriate, and I have given

Your Honours the reference to that.

Your Honours, the second basis, we submitted,

upon which there should be a grant of special

leave, is that the case raises the question of the proper construction and application of section 591

of the Western Australian Criminal Code. Your

Honours are, no doubt, aware of what happened in

Bond 11 15/10/92

the case. The applicant was charged on an

indictment which provided that he had dishonestly

concealed the material fact, the material fact

being that a commission of $16 million was payable

on or before 24 December.

Now, Your Honours, what happened at the trial was that a document was tendered which established

an agreement which made no reference to time and

contained some other terms. Perhaps I should take

Your Honours to that document. It is - - -

BRENNAN J:  I think we are familiar with the nature of the

problem, Mr Callinan; the question is whether it is

a special leave point.

MR CALLINAN:  Yes, well, as Your Honours please.

BRENNAN J: And, in that connection I should have thought

that the relevant inquiry is whether or not the

words which were deleted by way of the amendment
were other than descriptive of the event to which

they related, or the transaction to which they

related.

MR CALLINAN: Well, Your Honours, a term of an agreement

relating to the date of payment is something more

than a description of the agreement.

BRENNAN J: What was the element of the offence that was in

question?

MR CALLINAN:  With respect, I am not sure that I understand

Your Honour's question.

BRENNAN J: Well, as I understand it, there is said to be

some disparity between the count as it was

originally framed and the count after the

amendment, and the disparity, I take it, is said to

be a material disparity.

MR CALLINAN:	Yes.
BRENNAN J:	To what element of the offence was that

disparity material?

MR CALLINAN: It was part of the material fact. It is

unfortunate that that is the same language, but it

is, it is part of the material fact that was

alleged to have been concealed, and it made - - -

TOOHEY J: Is not the crux of it, at least, as it appears in

the indictment, that there was an agreement to pay

Bond Corporation Holdings a sum of money and all

the other elements that go to make up the offence?

Bond 12 15/10/92

MR CALLINAN:  Your Honour, this was the question that was

really put to me at first instance, and put to me

on appeal, but with the greatest of respect, the

section is not concerned with the crux of the

matter; it is not concerned with the focus of the

matter; it is not concerned with the nub of the

matter.	The section is concerned with matters that
are material.	Now the whole of the approach of the

court at first instance and the court below was as

if there could only be one material fact or,

indeed, as if the case had a certain nucleus and

that there was no room for anything else.

That is not what the section provides. The

section provides that the amendment shall be made

unless it goes to a matter that is material and

prejudicial; I am using shorthand, but it does not

have to be the material matter, it does not have

the most material matter.	It does not have to be
the crux of the case.	If it is a material matter,

if it is material to the merits of the case, then

the amendment shall not be made assuming prejudice

as well. But that was, with the greatest of

respect, the error that the two courts below have

fallen into. They approached the matter upon the

basis that there could only be one material matter

and, indeed, if one examines it - I mean more

attitude has been given to the prosecutor than

would be given to a plaintiff in a civil case.

If one were alleging an agreement of a certain

kind in a civil case, which contained, we would

submit, what is plainly material, an agreement as

to a date of payment, and then at the end of the

civil case that were deleted and other matters were

relied upon, then we would submit that the

amendment would not be allowed.

BRENNAN J: But that rather brings to the point the question

of the elements of the offence and the elements of

the cause of action. In the civil case it may be

that an element of a cause of action is the date on

which a payment becomes due. Here, the relevant

offence is said to be that there was a concealing

of a material fact; the material fact was then

particularized. It was particularized as being

that Rothwells had agreed to pay Bond Corporation

Holdings Limited $16 million on or before

24 December 1987.

Now, the question really is if the material

fact is proved to be an agreement to pay Bond

Corporation Holdings Ltd $16 million, as distinct

from $16 million on or before a certain date, that

is a material fact different from the material fact

first alleged.

Bond 13 15/10/92

MR CALLINAN: But, with the greatest of respect, Your Honour

uses the singular. Your Honour says to me the

material fact, or the material matter; there may be

more than one material matter. Now, the date for

payment of a sum of money under a contract, I would

go so far as to submit, is always a material matter

and, indeed, it was alleged expressly - Your Honour

says as a particular, but none the less it was

alleged expressly - as part of the material fact

which was concealed. But, Your Honour, the

expression "material", something that is material

to the case, is a much wider expression than an

element of the case.

BRENNAN J: Yes.

GAUDRON J:  Does that not direct attention to whether or not

you suffered any prejudice in effect?

MR CALLINAN: Well, we certainly did and I can go to

that - - -

GAUDRON J: Well, that seems to me to be a large assertion.

MR CALLINAN: Well, take exhibit 4, the last document in

volume 1. All of the court down below said that

that was a document that was admissible. Under any

circumstances it would have been admissible in

these proceedings. Now, if in fact the agreement

was simply an oral agreement, completely non

specific as to time for payment, and making no

reference to what is in the nature of a personal
guarantee by Mr Connell, then we would have had

very good grounds for objecting to the reception of

exhibit 4. And Your Honours asked me what my

attitude to it would have been - if Your Honours

do - I am not too sure. I think I would have

objected to it because it might, if you have got an

ordinary oral agreement, add an element of

verisimilitude to what is a document or an

agreement unsupported by any evidence.

It might have been possible to say in relation

to that, "Well, all right, it might have been

possible to say on the other side there was an oral

agreement and perhaps a letter the next day, more

expansive in its terms and more precise does not

negate the possibility of an oral agreement the
night before." And I accept that. But that does

not mean to say that exploration of that question

would not have been undertaken at the trial. It

certainly would have.

The other aspect in which grave prejudice was

caused was really the non-exploration with

Mr Connell, in greater detail, of what precisely

was discussed during the course of the oral

Bond 14 15/10/92

agreement. Now, if Your Honours - I am not going

to take Your Honours to the evidence, but the

evidence is to this effect, that the strongest it

comes against us, regarding the oral agreement is

that Mr Connell says that Bond suggested a fee; he

resisted it, and in the end he agreed to it.

Now the matter left there in the light of a

written agreement tendered by the Crown and relied

upon by the Crown which was contradictory of some

of the terms of that so-called oral agreement which expressed a legal conclusion rather the form of the

language used by him.

GAUDRON J:  Mr Callinan, how do you make this a special

leave point, in the sense that even if you were

right, it would not advance your position, would

it? I can understand what you say about the first

point, but this would not - you would still be left

with the order for a new trial even if you were

right on this.

MR CALLINAN:  No, in my submission, because the section is a

code in relation to amendment. Now, if in fact the

conditions for the amendment are not satisfied,
then there is no evidence of the matter which was

relied upon by the Crown and there is no case to go

to the jury, because the Crown had failed to

prove - and I will not use the expression

"essential matter" or an element - - -

GAUDRON J:  It was amended. You do not treat an amended

indictment as though it had never been amended,

even if the amendment should not have been granted.

MR CALLINAN: Well, Your Honour, it depends upon the

language of the section under which the amendment

is made and, with the greatest of respect, the

section is quite explicit, it says that "The court

shall make the amendment unless" - - -

GAUDRON J: Yes. Well it did make the amendment; it was

amended.

MR CALLINAN: But, all right, well, we say that it was

wrongly amended. So one has -

GAUDRON J: Yes, but that does not make it as though it were

never amended. That does not mean that a verdict

was brought in on an unamended indictment.

MR CALLINAN: Well, let me come back to it. If, in fact,

the amendment was made and it was impermissible as

a matter of law, this Court will not treat

something that has been unlawfully done as having

been duly done, and that would be the effect of

treating the amendment as having been made. Now,

Bond 15 15/10/92

if in fact the amendment was wrongly made, we have

to approach the matter upon the basis that, at the

end of the Crown case, there was an indictment

which alleged material facts of which there was no

evidence. It is not a case of tenuous evidence; it

is not a case of that kind.	It is a case of no
evidence of a material matter.

BRENNAN J:  And yet the trial went on and a verdict was

taken.

MR CALLINAN:	Yes.
BRENNAN J:	One cannot postulate at trial, dealt with in the

way in which you suggest, that that would

necessarily have been the course. If the Crown was fixed with its indictment in an unamendable form it

would have been open to the Crown to deal with the

matter in another way.

MR CALLINAN: Well, if Your Honour is suggesting that the

Crown might have started again?

BRENNAN J: Yes.

MR CALLINAN:  Yes, but it would have been an entirely

different factual matrix - - -

BRENNAN J: Well, quite so. I understand the point that you

are making, but it seems to me that when it comes

to a question of the grant of special leave on a

procedural aspect, when there is an order for a

retrial, you have a burden which is of no small

difficulty in dealing with section 591,

MR CALLINAN: But, Your Honour - I understand what

Your Honour says - it is not merely procedural; it

has significant substantive effect.

TOOHEY J: It may do, Mr Callinan, if we were faced with an

what might, in particular circumstances, give rise application for a retrial, but you want to convert	to an order for a retrial to an order for quashing
of a conviction.

MR CALLINAN:  Yes, I do. But, Your Honours, in the end it

will come down to this: is the Crown going to be

permitted, we would submit, in the teeth of the

statute, to be permitted to amend when the

statutory conditions are not satisfied? Now, if

that happens, it is, with the greatest of respect,

no answer simply to say that it is a procedural

matter. It obviously had substantive effect. If
the Crown elected to come again, there are all

sorts of considerations which may operate upon the

Crown's mind. One cannot assume that the Crown

Bond 16 15/10/92

would or would not; that is not an answer, we would

submit, to an error of law.

Let me go then to the matter of special leave.

It is a section that has no analogues, I do not

think - no complete analogues, but it has parallel
sections in all of the other States and I think the
only exception is the Commonwealth where similar
sorts of expressions are used and with that
exception, the expression, "material to the merits

of the case" also appears.

Your Honours, the last matter, so far as an

application for special leave is concerned, we

submit that it is in the interests of the

administration of criminal justice that the
conviction be quashed and no order for a retrial

stand, on the basis that the verdict was unsafe and

unsatisfactory, particularly in relation to the

matter of an agreement. The evidence in that

regard is the evidence of Mr Connell. It is the

only evidence on the point and it goes no stronger

than the way in which I have put it. I put to Your Honours the proposition that the evidence

reaches no further than for him to say that he was

asked for a fee; he resisted it; in the end he

agreed to it, and we submit that that does not

establish an agreement. If Your Honours please.

BRENNAN J:  Mr McKechnie, we would like to hear you on the

first of the grounds advanced by Mr Callinan.

MR McKECHNIE:  If Your Honours please. The first of the

grounds, in fact, is covered in the judgment of

Justice Murray. His Honour deals with each of the

authorities that my friend mentions between

pages 60 and 65. In our respectful submission, the

short answer to my friend's proposition is this: if

one looks at the section, in our respectful

submission, as His Honour found, untrammeled by

authority would plainly seem to aim at an

individual dealing, or an individual transaction

which is defined exhaustively as dealing in

securities. That is the approach of His Honour,

with whom the others agree.

If one then goes to the definition of dealing

in securities, the definition itself relates to the

individual underwriting an agreement, and the

definition is exhaustive. Particularly within the

definitions can be found the definition of ''dealer"

and a dealer is a person who carries on the

business of dealing in securities. One might say,

if there were any warrant to recast section 126 in

the manner contended by my friend, the legislature

could have done so relatively easily by including

Bond 17 15/10/92

the word "dealer" probably in the second part of

section 126, where it says:

induce of attempt to induce another person to

deal in securities -

one might say another dealer, that is a person who

carries on the business of dealing in securities.

But, Your Honour, in relation to the

authorities to which my friend has drawn attention,

His Honour Justice Murray goes through the

authorities and, for the reasons which he expresses

and we would support, the authorities can be seen

as not iri essential conflict with this decision.

In relation to - and I do not propose to read what

His Honour said to Your Honours - but His Honour

first deals with Ryan v Triguboff at page 221 and

pointed out there, of course in each case the ratio

was different - he pointed out about halfway

through:

his Honour did not hold that from the

definition was to be gathered the intention

that a dealing in securities only occurred in

the circumstances outlined in the applicant's

submission in this case.

His opinion was that it was of no assistance in the point made by the applicant here.

In relation to NCSC v Industrial Equity Ltd,

His Honour, after pointing out at page 221 that the

ratio and the facts are of no relevance, deals, at

page 222, with the passage to which my friend has

directed attention and His Honour says of that:

It is evident from those observations that

his Honour's conclusion was particularly

dependent not on the terms of the definition,

but on the terms of s 14 of the relevant

statute.

And, indeed, one sees the quotation that that is

clear, when His Honour Justice Needham says "the

flavour is emphasized bys 14(l)(c)". His Honour

Justice Murray then deals with the third case to which my friend makes reference and again, after pointing out that the ratio is not relevant, at

page 223 deals, in our respectful submission,
correctly with the decision of Her Honour

Justice Mitchell at the bottom of the page and then over the page at page 234, says:

It is not clear to me from those reasons what

additional element her Honour envisaged was to

be extracted from the definition, or whether

Bond 18 15/10/92

she would have applied the same reasoning to

the process of underwriting the securities.

But again, it would seem to me, that her

Honour had in mind the use of the word dealing

generally in the context of the statutory

provisions before her which opposed that

concept to the mere acquisition of the shares.

It is not clear to me from her Honour's

reasons, that she would restrict the word

"dealing" to a transaction between dealers or

to a transaction in the ordinary course of a

business of that character.

So His Honour took the view - and in each of these

cases what His Honour did, in our respectful

submission correctly, was to show that those
authorities are really of little assistance when

coming to consider section 126 and the relationship

of the definition to that section.

Finally, His Honour, in dealing with Hooker

Investments Pty Ltd v Baring Bros, points out at

page 226, in the middle paragraph:

The judgment of the court was delivered

by McHugh JA and in the course of those

reasons the court reviewed a number of the

provisions contained within Part X of the of s 126.

Now, Your Honour, in our respectful submission, that was a significant exception and itself

justifies the view that that case is of no

assistance in the resolution of this issue. The

fact that this case raises, it would appear for the

first time in a supreme court section 126, which I

think was my friend's first point, that it has not

been directly construed by any supreme court, does

not, of course, warrant the grant of special leave

if the decision appears to be correct and, in our

respectful submission, there is no essential

conflict within Australia of authorities in
relation to the application of the definition under

section 4 to section 126. And those would be our

submissions on that point, Your Honour.

BRENNAN J:  The Court will adjourn briefly in order to

consider the course that it should take.

AT 3.50 PM SHORT ADJOURNMENT

Bond	19	15/10/92
UPON RESUMING AT 4.04 PM:

BRENNAN J:  The applicant was charged on indictment with an

offence against s.126(l)(b) of the Securities

Industry (Western Australia) Code. The count in

the indictment, as it was originally framed, read

as follows:

On 26 October 1987 at Dalkeith Alan Bond by

dishonestly concealing a material fact, namely

that Rothwells Limited had agreed to pay Bond

Corporation Holdings Limited $16,000,000 on or

before 24 December 1987, induced or attempted

to induce Brian Richard Coppin to deal in securities by deleting a condition from a

subunderwriting agreement between the Brian

Richard Coppin and Wardley Australia

Securities Limited.

After a trial the applicant was convicted but his conviction was set aside by the Court of Criminal Appeal of Western Australia for reasons not

associated with the present application. That

Court ordered that the applicant be retried. The

applicant now seeks special leave to appeal against the order for retrial on three grounds which, it is submitted, ought to have led the Court of Criminal

Appeal to order that a verdict of acquittal be

entered.

The first ground relates to the deletion of a

phrase in a draft sub-underwriting agreement which

would have conditioned the sub-underwriter's

obligations under that proposed agreement. It is

submitted that, although the evidence suffices to

establish a literal breach of s.126(l)(b), the true

construction of that section, read in conjunction

with s.4(1), required evidence that the transaction

occurred in the course of a general dealing in
securities.	We do not read the provisions of

s.126(1)(b) in that way. Having regard to the

definition of "dealing" in s.4(1) and the

particularity of the language in s.126(l)(b), we

do not think that there was any error in the

conclusion of the Court of Criminal Appeal on this

point.

The second ground arises from the trial

judge's allowing of an amendment of the indictment

towards the end of the trial. It is submitted that
the amendment was not made in conformity with

section 591 of the Criminal Code (W.A.). It is

sufficient to say that for the reasons given by

Murray J whose reasons were those of the other

Bond 20 15/10/92

judges of the Court of Criminal Appeal, there was

no error in allowing the amendment.

The third ground seeks to challenge the

sufficiency of the evidence at the trial to support

a conviction. On this point the Court of Criminal

Appeal was clearly right. Accordingly special

leave will be refused.

AT 4.04 PM THE MATTER WAS ADJOURNED SINE DIE

Bond 21 15/10/92