DSJ v R; NS v R - [2014] NSWCCA 77

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DSJ v R; NS v R [2014] NSWCCA 77
Hearing dates: 3 September 2013
Decision date: 13 May 2014
Before: Gleeson JA at [1];
Hidden J at [212];
Rothman J at [213]
Decision:
2010/34654 (DSJ v R)
Application for leave to appeal dismissed.
2010/40493 (NS v R)
Application for leave to appeal dismissed.

Catchwords: APPEAL- Appeal - General principles - Right of appeal -When appeal lies - From interlocutory decisions - Leave to appeal
CRIMINAL LAW - Appeal - Interlocutory orders - Section 5F(3) Criminal Appeal Act 1912 - Interlocutory order not to order separate trials - Application of Section 21 Criminal Procedure Act - Question of admissibility of evidence central to decision of primary judge - Admissibility of coincidence evidence - Section 98 and 101 Evidence Act 1995 - Whether leave ought to be granted
Legislation Cited: Constitution s 80
Corporations Act 2001, s1042A, 1043A
Criminal Appeal Act 1912, s5F
Criminal Procedure Act 1986, s21
Evidence Act 1995, s55, 97, 98, 101 and 137
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
De Jesus v R [1986] HCA 65; 68 ALR 1
DPP v Boardman [1975] AC 421
DPP v Kilbourne [1973] AC 729
DSJ v R; NS v R [2011] NSWCCA 222
DSJ v R; NS v R [2012] NSWSC 409
DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
Hoch v The Queen (1998) 165 CLR 292
Holborn v Guardians of Union Chertsey (1884) 15 QBD 76
House v R [1936] HCA 40; 55 CLR 499
In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318
Kocer v Regina [2006] NSWCCA 328
Ludlow v Metropolitan Police Commissioner [1971] AC 29
Maxwell v Keun [1928] 1 KB 645
Noor Mohamed v The King [1949] AC 182
Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1
Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
R v DSJ; R v NS [2011] NSWSC 894
R v DSJ; R v NS (No 3) [2013] NSWSC 471
R v DSJ; R v NS (No 4) [2013] NSWSC 472
R v DSJ; R v NS (No 5) [2013] NSWSC 473
R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v Frazer [2002] NSWCCA 59; 128 A Crim R 89
R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487
R v Georgiou [1999] NSWCCA 125
R v JGW [1999] NSWCCA 116
R v Lock (1997) 91 A Crim R 356
R v Lockyer (1996) 89 A Crim R 457
R v Powch (1988) 14 NSWLR 136
R v Smith [1981] 1 NSWLR 193
R v Steffan (1993) 30 NSWLR 633
R v Van Phu Ho (NSWCCA, 18 July 1994, unreported)
Re Lamb [1894] 2 QB 805
Sali v SPC Ltd (1993) 67 ALJR 841
Saunders v R (1994) 72 A Crim R 347
Shepherd v The Queen (1990) 175 CLR 573
Sutton v R [1984] HCA 5; 152 CLR 528
Verma v R (1987) 30 A Crim R 441
Category: Principal judgment
Parties:
CCA 2010/34654 (DSJ v R)
DSJ (Applicant)
Regina (Respondent)
CCA 2010/40493 (NS v R)
NS (Applicant)
Regina (Respondent)
Representation:
Counsel:
CCA 2010/34654 (DSJ v R)
T Game SC with G Bashir (Applicant)
G A Farmer SC with J Paingakulam (Respondent)

CCA 2010/40493 (NS v R)
H Dhanji SC (Applicant)
G A Farmer SC with J Paingakulam (Respondent)
Solicitors:
CCA 2010/34654 (DSJ v R)
Speed and Stracey Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
CCA 2010/40493 (NS v R)
Johnson Winter & Slattery (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2010/34654; 2010/40493
Decision under appeal

Citation:

[2013] NSWSC 471

Date of Decision:

2012-05-18 00:00:00

Before:

Hall J

File Number(s):

2010/34654; 2010/40493

Judgment

GLEESON JA: The applicants seek leave to appeal against an order made by the trial judge (Hall J) on 3 May 2013, dismissing their notices of motion filed on 11 March 2011 which sought to have a number of charges in the indictment presented against them tried separately, and also sought a ruling that the Crown's coincidence evidence not be admitted at the trial of each of the charges in the indictment: R v DSJ; R v NS (No 3) [2013] NSWSC 471 (Judgment No 3) and DSJ v R; NS v R [2012] NSWSC 409 (s 98 Judgment).

The history of the motions is referred to in greater detail below. It is relevant to the context of the present applications and the considerations bearing upon whether leave to appeal should be granted.

The foundation for the separate trials application is the assertion by the applicants that the trial is unmanageable on the current indictment of 20 counts (10 counts relating to each accused) because there is a real danger that the jury could be overwhelmed by the coincidence evidence (if admissible) and other evidence in the case, and this would involve great confusion and complication. It was contended that the directions required to be given to the jury would necessarily be complex and long, and that there is a real risk that the applicants will be prejudiced in presenting their defence and putting the prosecution to proof, because of the onerous task of giving evidence and/or of meeting the voluminous and complex material. Related to this application for separate trials is the assertion that the trial judge erred in his ruling on the admissibility of coincidence evidence under s 98 and s 101 of the Evidence Act 1995.

Leave is required

The application for leave to appeal is made pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912, which requires the applicants to obtain leave in order to appeal against an interlocutory order or judgment. There is no dispute that leave is required. The order dismissing the applications for separate trials is an interlocutory order. This is so regardless of whether the refusal turns on a question of evidentiary admissibility: Saunders v R (1994) 72 A Crim R 347; R v Georgiou [1999] NSWCCA 125 at [19]; DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at [2], [76] and [125].

The principles relating to the grant of leave are not in dispute.

First, leave should not readily be granted, unless an appropriate case is made out showing an error of principle which is apt to cause an irregularity or an injustice: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25] per Whealy JA (Hall and McCallum JJ agreeing) citing R v Van Phu Ho (NSWCCA, 18 July 1994, Gleeson CJ, Mahoney JA, Dunford J, unreported).

Secondly, a significant factor in determining the grant of leave is that rulings on the admissibility of evidence are not interlocutory orders. It is well established that s 5F is not available to review a decision as to the admissibility of evidence: R v Powch (1988) 14 NSWLR 136 at 137D-138B; R v Steffan (1993) 30 NSWLR 633 at 639F; DAO v R at [74]. This is a strong consideration against the grant of leave in respect of an order refusing separate trials, where a ruling on the admissibility of evidence is a central issue: DAO v R at [16] per Spigelman CJ, at [106] per Allsop P and at [208] per Simpson J (Kirby and Schmidt JJ agreeing).

The principal consideration which led this Court in DAO v R to grant leave to appeal against the decision refusing separate trials was the importance of the question concerning the correct approach to an appeal from a ruling on the admissibility of tendency evidence under s 97 of the Evidence Act: at [18] per Spigelman CJ; at [106] per Allsop P and at [209] per Simpson J (Kirby and Schmidt JJ agreeing). Chief Justice Spigelman also considered it significant that the decision involved a pre-trial ruling of potentially critical significance as it fundamentally affected the structure of the proceedings.

Thirdly, in considering applications under s 5F, substance, and not mere form, should prevail: DAO v R at [75] per Allsop P. Thus, although a complaint about the ruling on separate trials may be based on a question of evidentiary admissibility, that does not change the form and substance of the trial judge's refusal to make orders for separate trials. Thus, if leave is to be given in this case, it is to be given in relation to orders 2 and 3 made on 3 May 2013, and not Order 1 made on that date in relation to the admissibility of the Crown's Coincidence Evidence (as defined).

Fourthly, one of the principal reasons for subjecting appeals from interlocutory orders in criminal cases to the requirement to obtain leave is to prevent or minimise the fragmentation of the process of criminal justice: R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 at [23].

Fifthly, an appeal from an interlocutory judgment on an application for separate trials, is subject to the degree of appellate restraint identified in House v R [1936] HCA 40; 55 CLR 499 at 504-505; see DAO v R at [70] per Spigelman CJ, [78] per Allsop P. Such an order remains a matter of procedure and that brings it within the well-known rules of restraint from interference: Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177.

Before considering the question of leave and the proposed grounds of appeal, it is necessary to refer to the background of the present applications.

Background

The applicants have been charged, on indictment, with insider trading offences under the Corporations Act 2001 (Cth) (the Act). The first applicant, DSJ, is charged with 10 counts pursuant to s 1043A(1)(d) of the Act. The second applicant, NS, is charged with 10 counts pursuant to s 1043A(1)(c) of the Act.

The charges against DSJ allege that he was an insider, that he possessed inside information, and that, contrary to the provisions of the Act, he procured NS to apply for, acquire, or dispose of relevant financial products, being shares or securities.

The charges against NS allege that he had possession of the insider information given to him by DSJ and that he intentionally acquired the financial products particularised in the indictment. The products were either shares or contracts for difference in relation to seven listed companies.

On 4 February 2011, each accused was arraigned before Latham J and pleaded not guilty to all counts.

Coincidence Notice

The Crown seeks to lead coincidence evidence on the basis that the evidence pertaining to each individual count is admissible in respect of each other count. The Crown served a Coincidence Notice under s 98 of the Evidence Act on 25 February 2011, giving notice that it intended to rely upon the evidence of the other charges as particularised in Table A, in relation to each charge, as well as the evidence of the facts particularised in Table B, relating to uncharged acts. This notice stated that the evidence was to be adduced for the purpose of establishing that each of the accused did the acts alleged against him in the indictment and that each had the required state of mind, on the basis that, having regard to the similarity of the events, it was improbable that the events occurred coincidentally. The Crown served an amended Coincidence Notice on 8 July 2011 (WB 644).

The combined course of conduct, summarised in pp 5-9 of Table A of the amended Coincidence Notice (WB 648-652), was compartmentalised into seven "events" as follows:

(1) The receipt by Moody's of information from seven entities the subject of the charges, being "inside information".

(2) DSJ's direct receipt of inside information in some instances and indirect receipt of information in others.

(3) Telephone communications between DSJ and NS, by which means DSJ allegedly communicated the inside information to NS, thereby procuring NS to trade whilst in possession of the inside information.

(4) NS's acquisition of the financial products in the seven entities whilst in possession of the inside information.

(5) The announcement made to the market of an event that pre-empted the transaction.

(6) NS's trading out of his position in the seven entities.

(7) DSJ's significant surveillance of the share price in the entities traded in by NS, usually on CommSec, throughout the material time.

The purpose of the Coincidence Notice was stated to be as follows in respect of each applicant:

"[DSJ]

3. The evidence of the two or more related events is to be tendered to prove that the accused [DSJ] did the particular acts alleged in each of counts 1-10 in the indictment, namely, that he procured [NS] to acquire the relevant Division 3 financial products identified in each count in the indictment.

4. The evidence of the two or more related events is also to be tendered to prove that the accused [DSJ] had a particular state of mind, namely that at the time he procured [NS] to acquire the relevant Division 3 financial products identified in each of counts 1 -10 in the indictment, he acted intentionally and was in possession of the inside information as particularised in each of counts 1-10 in the Indictment.

[NS]

5. The evidence of the two or more related events is to be tendered to prove that the accused [NS] did the particular acts alleged in each of counts 11-20 in the indictment, namely, that he acquired the relevant Division 3 financial products identified in each count in the indictment.

6. The evidence of the two or more related events is also to be tendered to prove that the accused [NS] had a particular state of mind, namely that at the time he acquired the relevant Division 3 financial products identified in each of counts 11-20 in the indictment, he acted intentionally and was in possession of the inside information as particularised in each of counts 11-20 in the indictment."

Each accused filed a notice of motion on 11 March 2011 seeking , in effect, orders that the question of admissibility of the Crown's coincidence evidence be determined in advance of the trial, and that an order be made that it ought not to be admitted. Further, an order was sought pursuant to s 21 of the Criminal Procedure Act 1986, that the charges in the indictment (other than Charges 6-9 in respect of DSJ) be tried separately.

Judgment No 1

The applications were originally heard by Hall J over five days in June and July 2011 and judgment was delivered on 17 August 2011: R v DSJ; R v NS [2011] NSWSC 894 (Judgment No 1). His Honour ruled that the evidence particularised in Table A to the notice of coincidence evidence was admissible pursuant to s 98(1)(b) of the Evidence Act, but that the evidence particularised in Table B relating to the uncharged acts was not admissible under s 98(1)(b) of the Evidence Act. On 23 August 2011 his Honour made an order dismissing the applications for separate trials, other than on Charges 6 - 9.

Leave application

The applicants sought and obtained leave to appeal on 9 September 2011 against the decision of Hall J. Leave was granted only on a limited basis - namely, on the trial judge's approach to the interpretation and application of s 98 and, to the extent that it flowed through, on his approach to the operation of s 101 of the Evidence Act: DSJ v R; NS v R [2011] NSWCCA 222 at [5] per Allsop P (Kirby and McCallum JJ agreeing) (Leave decision). Leave was not granted in respect of the other matters complained of in the proposed grounds of appeal, which included the way in which the trial judge would deal with the issue of prejudice if the trials were not severed and the so-called circularity of reasoning in the Coincidence Notice: at [6] Leave decision.

The refusal of this Court to grant leave to appeal in respect of the other matters is of some significance for the present applications. First, the reference to the so-called circularity of reasoning in the Coincidence Notice, is a reference to ground 4 of DSJ's application for leave to appeal filed 23 August 2011 (WB 1023). NS adopted this ground in his application for leave to appeal filed 24 August 2011 (WB 1027). Ground 4 was in the following terms:

"His Honour erred in holding that the proposed use of the Table A evidence did not constitute circular reasoning." (WB 1023)

The written submissions of DSJ in support of the leave application dated 6 September 2011, advanced the complaint that (a) Table A of the Coincidence Notice relied on each event to prove both the "act" and "state of mind" on each charge in relation to each other charge; and (b) the events on each charge are relied on to prove each other event in the same charge. It was argued by DSJ that this involved circular reasoning and to this extent the Coincidence Notice had no probative value at all, much less "significant" probative value (WB 1046-1047). This submission was expanded upon at some length in the written submissions of DSJ, and supplemented by DSJ's written submissions in reply on that leave application (WB 1082-1083), which included:

"For those counts where there is no evidence that [DSJ] received the information, BLD, AIHCA, RIN, and arguably SRG, the Crown seeks to establish each of items 2, 3 and 4 in Table A at AB 519 and 521-522 by reference to other counts where each of those elements is not the subject of direct evidence but merely of inference. That is, that [DSJ] "was told the effect of the inside information", when there is no direct evidence that he did; that he communicated the inside information to [NS], when there is no direct evidence that he did; and that he procured [NS] to trade while in possession of the information, when there is no direct evidence that he did, and that the "evidence" supporting each such assertion can be used to prove each other assertion. The impermissible circularity of such a process is manifest."

The complaint made by DSJ was that, in Judgment No 1, the trial judge had accepted the grouping of essentially dissimilar cases, by allowing cases where there was no evidence that DSJ had received inside information to be grouped with cases in which the Crown contended there was such evidence. As already noted, this Court declined to grant leave in respect of this ground.

Secondly, Ground 1 of DSJ's previous application asserted that the trial judge erred in declining to order separate trials. The written submissions of DSJ in support of this ground advanced arguments on the issue of prejudice to the applicant, separate to the arguments based on the admissibility of the coincidence evidence. This Court declined to grant leave to appeal in respect of that issue.

Thirdly, Ground 5(b) of DSJ's previous application for leave asserted that the trial judge erred in concluding that any prejudice could be cured by directions. Again, this Court declined to grant leave to appeal on that issue.

One of the relevant considerations raised by the present applications is the attempt by the applicants to re-agitate the same, or substantially similar, arguments in respect of which this Court has previously refused leave to appeal.

Appeal decision

On 12 February 2012, this Court allowed the appeal, set aside the order made by Hall J on 23 August 2011, and referred the applicants' motions back to the trial judge for reconsideration in the light of this Court's rulings: DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 (the Appeal decision).

The appeal in this Court was successful on the narrow point of whether the trial judge fell into error by rejecting altogether that, in determining the extent to which the evidence could be significant in establishing the facts in issue, regard should be had to an alternative explanation for the conduct said to have the capacity to point towards guilt. That is, this Court found that the trial judge had erred in the method of evaluation of significant probative value when ruling on the admissibility of coincidence evidence. Chief Justice Bathurst at [10] stated:

"[10] However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury."

It is also appropriate to refer to the observations of Whealy JA as follows:

"[79] In a practical sense, there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial Judge is required to ask whether there emerges, from a consideration of all the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence or the evidence taken as a whole.

[80] Secondly, the trial Judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial Judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence in terms of s 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt.

[81] The Crown, in making its concession, however, stressed that at no stage in this process was the trial Judge required or entitled to assess the actual weight of any part of the evidence, or to make any actual assessment concerning the probabilities of any alternative theory. Nor was the trial judge required or entitled to make a comparison of the Crown theory and the probabilities of any alternative theory. This proposition appears consistent with established authority. Any attempt by the trial Judge to anticipate the actual weight the jury would attach to the evidence is prohibited, as I have explained.

Later in his judgment, Whealy JA, having emphasised at [131] that it is not for the trial judge to weigh and assess the alternative explanation, as a jury would do, nor to examine and weigh parts of the evidence only in isolation from the whole body of evidence, stated:

"[132] However, in the present matter, the trial Judge was required to ask himself whether, for example, the possibility that NS had been "tipped off" about the corporate entities without receiving inside information might otherwise substantially alter the capacity for cogency he thought the coincidence evidence possessed. Similarly, in the case of DSJ, his Honour was required to ask whether, for example, this mass of phone calls and other communications between the two men might mean no more than that they were engaging in social and recreational communications, without reference to stock market trading. If that were a possibility, did it substantially alter his view as to the otherwise significant capacity of the Crown evidence to establish the facts in issue. He had to ask whether the fact that Moody's had information about a vast number of corporate entities, and that, in some cases, there was no direct evidence that DSJ had acquired inside information, substantially altered the high cogency of the coincidence evidence, as he saw it, to prove the facts in issue. In each case, did the possibility deprive the coincidence evidence, taken with the other evidence, of its capacity to prove significantly the Crown case? His Honour, in considering these alternative inferences, may well have taken the view that none of these possibilities had the capacity to diminish the otherwise strong probative value of the Crown evidence. However, in my opinion, they had to be recognised and taken into account in the limited manner I have suggested, and it was an error not to do so."

The prospect that the trial judge, upon reconsideration, would reach the same conclusion so far as concerned the capacity of the evidence to meet the s 98 threshold, was adverted to by Whealy JA at [33].

Section 98 Judgment

The trial judge heard argument on reconsideration of the coincidence evidence on 12 April 2012, and delivered the s 98 Judgment on 18 May 2012. His Honour confirmed the order he had previously made to the effect that the coincidence evidence is admissible pursuant to s 98 of the Evidence Act.

However, the trial judge stated at [134]:

"I have considered the application of s 101 of the Evidence Act to the facts of this case. Given the number of Counts to be tried in the one trial and having regard to the submissions that have been made on behalf of both accused to which I have referred as to 'prejudice' arising from a joint hearing I consider that it is prudent to further inquire into the way in which the Crown intenders [sic] to proceed at hearing, so that I will be in a fully informed position to evaluate submissions that have been made on behalf of each accused. It is my intention, following a further hearing on that matter, to then make a ruling as to whether the coincidence evidence can be used in accordance with the provisions of s 101 of the Evidence Act."

Judgment No 3

Following a further hearing on 2 July 2012, the trial judge delivered Judgment No 3 on 3 May 2013. This concerned the issue as to whether the restrictions imposed by s 101 of the Evidence Act apply in these proceedings.

The trial judge set out his conclusions in Judgment No 3 as follows:

"[293] Upon consideration of the evidence and submissions I have concluded that:

(1) The coincidence evidence, described in Table A to the "Notice of Coincidence Evidence", in my opinion:

(a) does have significant probative value;

(b) substantially outweighs any prejudicial effect it may have on the accused.

(2) The probative value of the coincidence evidence is supplemented and reinforced by other evidence in the Crown's circumstantial evidence case.

(3) There is, accordingly, a connection between the counts on the indictment with evidence on one individual count being properly cross-admissible on the trial of each other count.

(4) There is no proper basis for separating the counts on the indictment. To separate the counts into three groups as proposed by the accused would, in my opinion, be inappropriate as a matter of principle once the issue of cross-admissibility of the coincidence evidence has been determined in favour of the Crown. The proper use of coincidence evidence and protection against its misuse can be achieved by appropriate trial directions.

(5) There is no proper basis for a conclusion that either accused may be prejudiced or embarrassed in their defence by reason of being charged with the offences set out in the indictment. The capacity of trial directions to ensure proper use of evidence as discussed above is a material consideration in relation to the order sought under s21(2). There is no other reason within s21(2)(b) of the Criminal Procedure Act, in my opinion, that would justify the making of an order under s 21 of that Act."

The formal orders made by the trial judge in relation to the applicants' notices of motion were:

"(1) Pursuant to s 192A of the Evidence Act 1995, the question of the admissibility of the Crown's Coincidence Evidence be determined in advance of the trial.

(2) The Notice of Motion filed on behalf of DSJ on 11 March 2011 is otherwise dismissed.

(3) The Notice of Motion filed on behalf of NS on 11 March 2011 is otherwise dismissed."

It is necessary to refer also to two further judgments which the trial judge delivered at the same time as Judgment No 3 on 3 May 2013. Both concerned rulings on evidence.

Judgment No 4

The first concerned a ruling which the Crown had sought on the admissibility of evidence described as the "uncharged acts". This expression referred to trading that occurred in relation to three companies, identified as "PBL", "DOW" and "APA". The evidence of the uncharged acts had been previously ruled not admissible by the trial judge as coincidence evidence under s 98 of the Evidence Act in Judgment No 1 at [256] to [276] delivered on 17 August 2011.

On the question of whether the evidence of the uncharged acts was admissible on another basis, the trial judge made the following rulings: R v DSJ; R v NS (No 4) [2013] NSWSC 472 (Judgment No 4):

(1) the evidence in relation to PBL is not admissible under s 55 of the Evidence Act;

(2) the evidence in relation to APA and DOW is admissible under s 55 of the Evidence Act as to relationship/joint or mutual interest of the accused in financial products.

Judgment No 5

Also on 3 May 2013, the trial judge ruled on the admissibility of evidence in relation to three other matters:

(1) the acquisition and disposal of shares in Aditya Birla (ABY);

(2) the payment of an amount of $30,000 from DSJ to NS; and

(3) the provision by Damien Elias to DSJ of Alinta documents.

The trial judge made the following rulings: R v DSJ; R v NS (No 5) [2013] NSWSC 473 (Judgment No 5):

(1) the evidence in relation to the acquisition and disposal of shares in Aditya Birla is admissible under s 55, Evidence Act 1995 on the relationship/joint or mutual interest of or between the accused in financial products;

(2) the payment of the amount of $30,000 from [DSJ] to [NS] is admissible against [DSJ] and [NS] under s 55, Evidence Act 1995 as to the issues of possession, communication, and procurement in relation to Counts 5 and 15 (AIHCA);

(3) the email exchange between Mr Elias and [DSJ] on 15 November 2006 and the provision by Mr Elias to [DSJ] of Alinta documents prior to [NS's] s 19 examination is not admissible against [DSJ] or [NS] under s 55, Evidence Act 1995.

Evidence Act provisions

It is appropriate to refer to the relevant provisions of the Evidence Act which the present applications concern. Section 98 of the Evidence Act, so far as material to the present applications, provides:

"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.

(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."

The expression "probative value" is defined in the Dictionary to the Evidence Act as follows:

"Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

"Significant" means "important" or "of consequence": R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356; DAO v R at [149].

As noted by the trial judge, coincidence evidence is evidence that a party seeks to have adduced for the purpose of establishing that, because of the improbability of two or more related events occurring coincidentally, the person did a particular act or had a particular state of mind: [13] Judgment No 3.

Next it is necessary to refer to s 101 of the Evidence Act which imposes restrictions on tendency and coincidence evidence. It provides:

"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) ...

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant."

"Prejudicial effect" is a reference to the evidence being used against an accused for a purpose other than that for which it is admitted: DAOv R at [150].

The trial judge recorded that the Crown sought to rely upon coincidence evidence in order to submit to the jury that it was improbable that the "events" referred to in the Coincidence Notice had "occurred coincidentally" and to thereby meet a defence based on coincidence. In addition, such evidence if admitted, would permit the Crown to have evidence in each count available for use on each of the other counts: [16] Judgment No 3.

The trial judge noted that the test under s 101(2) required that the probative value of the evidence must "substantially outweigh any prejudicial effect it may have on the accused": [17] Judgment No 3.

The trial judge also noted that, as stated by Spigelman CJ in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at 718 [94]-[95], the balancing exercise can only be conducted on the facts of each case - it requires the Court to make a judgment, rather than to exercise a discretion - and consideration is to be given to the actual prejudice in the specific case, which the probative value of the evidence must substantially outweigh: [18]-[19] Judgment No 3.

Application by DSJ

Grounds 1 and 2

Grounds 1 and 2 of the proposed appeal by DSJ assert that the trial judge erred in declining to order separate trials, and in failing to properly construe and apply s 21 of the Criminal Procedure Act 1986.

The written submissions of DSJ acknowledged that the decision not to order separate trials was predicated on the trial judge's ruling on the admissibility of coincidence evidence. Underpinning these grounds were two contentions. The first was that there had been a failure by the trial judge to "properly assess the proper use of coincidence evidence". This contention relied upon the acceptance of Grounds 3 and 4 of the proposed appeal. Assuming acceptance of error as asserted in these grounds, it was argued that this meant that the prejudice suffered by DSJ had not been properly identified or assessed by the trial judge. That asserted prejudice was relevant to the decision of whether to order separate trials.

I have concluded below that leave to appeal should not be granted in relation to proposed Grounds 3 and 4. Accordingly, the premise of this part of DSJ's complaint is not established.

The second contention of DSJ was that the trial judge had erroneously confined his consideration of whether to sever the charges to the question of whether the coincidence evidence was admissible, and had ignored a consideration of the evidence which was the subject of the rulings in Judgments No 4 and No 5. It was contended that it was oppressive for DSJ to meet such a complex and lengthy case at trial, and that the trials should have been separated due to the prejudice and embarrassment to his defence that would result.

At this point the following provisions of the Criminal Procedure Act should be noted. Section 21(2) provides:

"If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b) that for any reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment."

Section 29(1) and (3) provide:

"(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

(a) the accused person and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

...

(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."

Risk of prejudice

In support of this second contention, DSJ submitted that the trial judge either failed to take into account, or gave insufficient weight to, the following matters when assessing the risk of prejudice that would arise if the counts were not severed:

(1) The impossibility for the jury of separating out the evidence relating to one charge from evidence relating to another, given the complexity and multiplicity of the transactions. It was contended that the trial as currently framed would place an enormous strain on the jury and the trial is unmanageable on the current indictment.

(2) There is a real danger that the jury could be overwhelmed by the coincidence evidence and the other evidence and ignore features of the evidence that indicate DSJ's innocence or gaps in the Crown case.

(3) Admission of the occurrence of the 10 counts in addition to three further uncharged acts in a single trial before a single jury would involve great confusion and complication, particularly given the number of witnesses proposed to be called and the number of documents proposed to be tendered.

(4) The directions required to be given to the jury would be necessarily complex and too long.

(5) The Crown proposes to run 20 trials simultaneously.

(6) The proposed Crown case, on each case, is wholly circumstantial and gives rise to the difficulty of drafting appropriate and adequate directions to the jury.

(7) The characterisation of the Crown case as a single circumstantial case or a "single enterprise", as accepted by the trial judge in the s 98 Judgment and Judgments No 4 and No 5, further complicates the task of drafting appropriate directions.

(8) There is a real risk that DSJ will be prejudiced in presenting his defence and putting the prosecution to proof. This is said to arise from the onerous task of giving evidence and/or meeting voluminous and complex material.

The Crown's response was that the trial judge did not fail to either take into account, or give sufficient weight to, any of the eight matters listed above.

The order made not to separate the trials is a procedural question involving a true discretion: DAO v R at [70] per Spigelman CJ, [77] per Allsop P. As already noted, the grounds of appellate review (if leave has been granted) are governed by House v R at 504-505. This requires that error must be shown in exercising the discretion: acting on a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision-maker; mistaking the relevant facts; failing to take into account some material consideration; or, in circumstances where no specific error of such kind can be demonstrated, where the result is, upon the facts, unreasonable or plainly unjust such that it can be inferred that there has been some error or miscarriage in the exercise of the power: DAO v R at [78] per Allsop P.

Dealing with each of the eight listed matters in turn.

First, it cannot be doubted that the trial judge considered the contentions advanced by DSJ that it was impossible for the jury to separate out the evidence relating to each count, given the complexity and multiplicity of the transactions; that the trial would place an enormous strain on the jury; and that the trial is unmanageable on the current indictment. These arguments were recorded by the trial judge at [81], [102] and [287]-[292] Judgment No 3. At [289], the trial judge rejected these contentions stating:

"The acts and matters associated with transacting financial products are not in themselves unduly complex. They are everyday transactions and are not in the nature of complex commercial transactions requiring evidence of detailed contractual and other documents and dealings between contracting parties over time."

At [291], the trial judge referred to the use of case management directions to devise methods to assist the jury in dealing with voluminous primary records wherever possible.

Further, at [292], the trial judge, having noted that management of the trial process will clearly be challenging, went on to state that he did not accept that the trial directions cannot achieve the purpose for which they are given - amongst other things to ensuring that the jury understand the nature and permissible use of the evidence.

The trial judge considered the complexity/unmanageable trial contention in the context of the charges which were the subject of the indictment. In weighing this contention, his Honour took into account the availability of case management directions for dealing with voluminous primary records, and the ability of trial directions to ensure that the jury understands the nature and permissible use of the evidence.

Secondly, as to the asserted danger that the jury could be "overwhelmed" by the coincidence evidence and ignore other relevant evidence, the trial judge recorded these contentions at [78] and [97] Judgment No 3. His Honour considered that this complaint would be met by the jury directions proposed at [281]-[285] Judgment No 3.

Thirdly, as to the assertion that the 10 counts, together with the three further uncharged acts, would involve great confusion and complication for the jury, particularly given the number of witnesses proposed to be called and the number of documents proposed to be tendered, this matter was essentially a variant of the first two matters. The trial judge considered these matters. At [290] Judgment No 3, his Honour noted that there will be both a considerable number of witnesses and a considerable number of documents relating to each count. The Crown told this Court that the trial judge was informed that there was some 27 witnesses to be called by the Crown and that, as a result of case management, the documents relating to each particular count were to be collated in a helpful and straightforward matter.

As already noted, the primary judge took into account the use of case management directions to deal with voluminous primary records: at [291] and that trial directions would achieve the purpose for which they were given: at [292] Judgment No 3. There is no substance in the complaint that the trial judge failed to take into account the confusion/complication contention.

Fourthly, as to the contention that the jury directions would be necessarily complex and too long, the trial judge addressed this issue when he set out in some detail what would be the requirement to give directions in relation to (a) the joint trials, (b) the elements of the offences, (c) the use of coincidence evidence, and (d) the distinction to be made between that evidence and other evidence which was admitted as "relationship evidence": at [268]-[285] Judgment No 3. The trial judge did not fail to take this contention into account.

Fifthly, as to the contention that the Crown proposes to run 20 trials simultaneously, again this is a variant of the first and second matters. It cannot be seriously suggested that the trial judge did not take into account this factor: see [274] and [284]-[285] Judgment No 3.

Sixthly, as to the contention concerning the difficulty of drafting appropriate and adequate directions to the jury, this matter has already been taken into account under the second and fourth matters. The trial judge recorded this contention in a number of parts of Judgment No 3 including at [75], [79], [82]-[83], [93] and [104]-[109]. As already noted, the trial judge considered that this complaint would be addressed by the directions proposed at [274], [283] and [284]-[285] Judgment No 3.

Seventhly, as to the asserted further complication in drafting appropriate jury directions in light of DSJ's characterisation of the Crown case as a single circumstantial case or a "single enterprise" case, the trial judge dealt with the nature of the Crown case in [127]-[131] of the Section 98 Judgment. His Honour proceeded upon the basis that the Crown's case seeks to rely upon both facts from which other facts relevant to the facts in issue may be inferred, and additionally to rely upon coincidence evidence to strengthen its case in that respect: at [130] Section 98 Judgment. The trial judge was undoubtedly aware of the nature of the Crown case when considering the prejudicial effect of the coincidence evidence.

Eighthly, as to the asserted real risk that DSJ will be prejudiced in presenting his defence and putting the prosecution to proof, given the onerous task of giving evidence and/or meeting voluminous and complex material, the trial judge took this contention into account at [99]-[103] and [188]-[189] Judgment No 3.

Section 21(2) Criminal Procedure Act

The next group of arguments of DSJ contended that the trial judge erred in failing to properly construe and apply s 21 of the Criminal Procedure Act.

The trial judge considered the s 21 issue at [195]-[201] and found at [293] Judgment No 3, that there was no proper basis for a conclusion that either accused may be prejudiced or embarrassed in their defence by reason of being charged with the offences set out in the indictment. The trial judge reasoned that the capacity of trial directions to ensure proper use of evidence was a material consideration, and no other reason within s 21(2)(b) would justify the making of an order under s 21 severing the counts.

The submissions of DSJ, which challenged this finding, relied upon the following propositions:

(1) The trial judge erroneously confined his consideration as to whether to sever the charges to the question of whether the coincidence was admissible.

(2) The trial judge's reference at [198] Judgment No 3 to Ludlow v Metropolitan Police Commissioner [1971] AC 29, disclosed error because the approach in Ludlow not to order separate trials turned on whether some "special feature" would make a joint trial prejudicial or embarrassing to the accused, which has not been followed in Australia: Verma v R (1987) 30 A Crim R 441 at 444, applying Sutton v R [1984] HCA 5; 152 CLR 528 at 541-2 and De Jesus v R [1986] HCA 65; 68 ALR 1.

(3) The admissibility of coincidence evidence was not determinative of the question as to whether the counts in the indictment should be severed.

(4) A relevant consideration on whether to order separate trials, in the present case, was the rulings on the admissibility of uncharged acts as "relationship evidence" and payment of $30,000 by DSJ to NS on the issues of possession, communication and procurement (being the subject of Judgments No 4 and No 5).

As to each of these matters, it is to be observed as follows.

Whether trial judge confined his consideration

First, contrary to the contention of DSJ, the trial judge did not confine his consideration to whether the coincidence evidence was admissible, nor did he ignore the separate submissions made on behalf of DSJ concerning the considerations relevant to whether to sever the charges.

At [199]-[200] Judgment No 3, the trial judge recorded the submissions advanced on behalf of NS. These were to the effect that whether it is desirable to direct separate trials was to be determined by the admissibility of the evidence going to each count in the trial for the other counts and vice versa. However, at [195] the trial judge noted that the focus of the parties' submissions on the s 21 issue also included the possible use or misuse of such evidence, and the issue of "prejudicial effect" under s 101 for the purpose of the balancing test under that section. This reflected the separate submissions advanced by DSJ in written submissions dated 30 March 2012, to the effect that the trial is unmanageable on the current indictment, and that, at the very least, counts, 4, 5, and 10 should be tried separately, or alternatively, the Court would need to consider whether or not to sever count 1 and/or counts 6-9 (WB 857).

In further written submissions dated 18 June 2012, it was contended by DSJ that even if the coincidence evidence was properly admissible, the potential for prejudice was large in the context of a trial with complex charges and diverse evidence on a wide-range of counts. The trial judge was undoubtedly aware of and considered these submissions. At [267] Judgment No 3, his Honour referred to submissions on behalf of each accused concerning the complexity of the matters that will arise for determination on each count, and on all counts, if heard together. At [286]-[293], under the heading "Prejudicial effect: complexity and related issues", his Honour considered the issue of complexity raised in the written submissions of DSJ. The trial judge did not confine his considerations in the manner asserted by DSJ.

Construction of s 21

Secondly, notwithstanding the trial judge's reference to Ludlow, his Honour did not himself use the expression "special feature", or apply such a requirement to the question of whether to order separate trials. Nor did his Honour adopt an erroneous approach at [198] Judgment No 3, where he stated, unexceptionally in my view:

"Different offences, [sic] may be contained in the one indictment if there is some connection between the crimes alleged. This will be so if the evidence of one is admissible on the trial of the other."

The trial judge did not err in his construction of s 21 of the Criminal Procedure Act.

Proper approach

Thirdly, as to the contention concerning the significance attached by the trial judge to the inadmissibility of the coincidence evidence in determining whether to order separate trials, undoubtedly this was an important factor in determining the s 21 issue. However, contrary to the assertions of DSJ, the trial judge also took into account the other considerations raised by DSJ which have been referred to above, including the arguments concerning the complexity of the trial, the strain on the jury, whether the jury directions would achieve their purpose, and the potential prejudice or embarrassment to the accused in their defence: at [247] and [286]-[292] Judgment No 3.

Significance of other evidence

Fourthly, the absence of a reference by the trial judge to his rulings in Judgments No 4 and No 5, does not establish that his Honour failed to take into account the factual evidence relating to uncharged acts (APA, DOW and ABY) and the payment of $30,000 by DSJ to NS was part of the Crown's case, when considering the question of severance.

In this regard, the history of the Crown's intention to rely on this evidence, of which the trial judge was no doubt aware, is relevant. The trial judge had previously considered and ruled that the evidence of the uncharged acts was not admissible as coincidence evidence: [261], [267] and [276] Judgment No 1. After delivering the s 98 Judgment, his Honour received further written submissions and heard further argument about the admissibility of this evidence prior to delivering Judgment No 3. Separate judgments were delivered on 3 May 2013 in relation to the s 101 issue, the admissibility of the uncharged acts, and the evidence relating to ABY and the $30,000: Judgments No 3, No 4 and No 5.

Undoubtedly, his Honour was cognisant of the factual matters relating to the evidence which were the subject of Judgments No 4 and No 5, when delivering Judgment No 3. The fact that the evidence referred to in Judgments No 4 and No 5 was not expressly referred to in Judgment No 3 does not, in my view, establish a failure by his Honour to take into account this evidence, which his Honour had ruled admissible, for the purposes of the s 21 issue.

I would not grant leave in respect of Grounds 1 and 2.

Grounds 3 and 4

Grounds 3 and 4 of the proposed appeal contend that the trial judge erred in failing to properly construe and apply s 98 and s 101 of the Evidence Act, and erred in determining that the evidence of each count in the indictment is admissible in relation to each of the other counts.

Events/acts and states of mind complaint

The first contention of DSJ was that the "events" identified in the Coincidence Notice are not really "events" for the purposes of s 98, but are the acts and states of mind the Crown is trying to prove. It was asserted that this misconception underlies the Coincidence Notice. It was argued that it is meaningless to identify, as "events" possession by DSJ of the particularised information when that is the fact in issue to be established. Likewise it was argued that it is meaningless to identify, as an event, procuring by communicating "the inside information" when that is the high level intermediate (if not ultimate) fact sought to be established against both DSJ and NS.

The submissions of DSJ contended that the coincidence evidence should be approached from a different perspective. This was referred to before the trial judge and on this application as "the skeleton". The "skeleton" is set out in the s 98 Judgment at [41]. The so-called "skeleton" adopted a narrow perspective of the related "events", as consisting in (a) the receipt of certain information (not the "particularised information" by Moody's), (b) evidence of contact between DSJ and NS, and (c) purchase by NS of securities.

It was submitted by DSJ that correct identification of the events in the s 98 notice is critical because it is from this base that the Court, and ultimately a jury, can work out what are the "acts" and "states of mind" that can be inferred from such established "events".

The Crown argued that the complaint by DSJ that the "events" identified in the coincidence notice are not really "events" for the purposes of s 98, but are the acts and states of mind the Crown is trying to prove, is an attempt to re-argue Ground 4 of DSJ's earlier (unsuccessful) application for leave to appeal dated 23 August 2011. The arguments advanced in DSJ's written submissions on that occasion (WB 1046-1050) described the complaint in relation to the Coincidence Notice in terms of circularity of reasoning.

Insofar as the circular reasoning argument was sought to be re-agitated on the present application, the position has not changed since the earlier Leave decision, which refused leave to appeal on this issue. Similarly, I am not persuaded that his Honour's reasons on reconsideration were attended with any doubt worthy of the grant of leave.

Impermissible inferences complaint

A second argument advanced by DSJ was that whilst an inference must be capable of being drawn from the "events" that support it, the Coincidence Notice in this case invites, and is built on, the drawing of impermissible inferences, and that the trial judge erred in adopting this reasoning.

The trial judge recorded this argument at [40]-[43] and [51]-[54] Judgment No 3. His Honour observed at [56] that the proposition was advanced that coincidence evidence lacked probative value by reason of the fact that it would involve, at least on several counts, inferred facts and inferential reasoning. His Honour noted that this argument had not been previously advanced on the initial s 98 hearing, nor apparently before this Court on the Appeal decision.

At [57] and [59], his Honour noted that a similar line of argument had been advanced on behalf of NS on the reconsideration of the s 98 issue and again on the s 101 issue. The trial judge addressed the arguments of DSJ that the coincidence evidence lacked probative capacity or value in relation to those counts where the alleged inside information comprised, in part, information as to facts that DSJ may or must have inferred: at [248]-[260] Judgment No 3. His Honour rejected the contention of DSJ that a distinction was to be drawn between those counts where there is direct evidence of possession of inside information and those where the Crown relies upon indirect evidence of possession, as a reason why one group of counts cannot or may not be cross-admissible in relation to counts in the other ground: at [262] Judgment No 3.

At [263] Judgment No 3, his Honour stated that the fact of possession and communication of inside information can be established indirectly through circumstantial evidence. The submission of DSJ in reply that the trial judge meant "coincidence evidence" when he used the expression "circumstantial evidence" should not be accepted. His Honour went on to observe that it was not the mode of proof that was in issue, but rather the strength of the evidence sought to be led as coincidence evidence. His Honour further observed that indirect evidence could have as much probative force as direct evidence in proof of a fact, including facts as to possession and communication for the purposes of the present case.

I am not persuaded that his Honour's reasons were attended with any doubt worthy of the grant of leave.

Other complaints

It was contended that the trial judge was in error in distinguishing R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 in Judgment No 3 at [122], on the basis of a distinction between "similarities" particularised in the Coincidence Notice and "asserted similarities" in R v Gale; R v Duckworth. A similar contention was raised by NS under Ground 5 of his proposed appeal.

The trial judge dealt with R v Gale; R v Duckworth under a separate subheading at [115]-[122] Judgment No 3. After summarising the facts of that case, his Honour said, in reference to the reasons of Simpson J in R v Gale; R v Duckworth:

"[120] Simpson J stated:

'37 Some of the asserted similarities expose a serious logical fallacy in the argument. The presence of Gale in the Nimbin Hotel, the (criminal) involvement of an 'insider' at the Nimbin Hotel, the involvement of ex police officers (ie Duckworth and Gale) in each event, and involvement of multiple offenders at the Nimbin Hotel event are all, far from being established similarities (or similarities capable of being established), the very facts that the DPP seeks to prove by the coincidence evidence.'

[121] Underlying these observations was the fact that the matters in the Tendency and Coincidence Notice as to Gale and Duckworth were not 'facts'. They were mere assertions and were not in truth 'similarities' within the meaning of s 98. The assertions assumed the presence of Duckworth and Gale at the Nimbin event when that was a matter to be proved by other evidence and could not be assumed to be 'facts' or 'similarities' for the purposes of s 98.

[122] The position in the present proceedings is that the Crown relies upon identified 'similarities' as to discrete or particular facts as detailed in the Coincidence Notice. They are not in the nature of 'asserted similarities' based on assumptions as to facts as in Gale; Duckworth."

The Crown's response to DSJ's contention was that it seeks to prove the matter in issue by reliance upon all of the circumstantial evidence internal to a particular count together with evidence in relation to other counts, including the similarities revealed by reference to the evidence relating directly to other counts. It was submitted that there are no assumptions in this case, such as those that were sought to be relied upon in R v Gale; R v Duckworth. In particular, it was submitted that it is not assumed that DSJ was in possession of the particularised information.

As explained by Simpson J in R v Gale; R v Duckworth at [25], the purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. At [26], Simpson J emphasised that what is important to recognise is that the process of reasoning and the drawing of the inferences - that the person did the act or had the state of mind - is for the tribunal of fact. Her Honour went on:

"Part of that process involves findings of fact. Did the two (or more) events occur? Were there relevant similarities? Where the party tendering the evidence relies upon a number of asserted similarities, the tribunal of fact must identify which, if any, of those similarities have been established. Before asking itself the penultimate question - is it improbable that the two events occurred coincidentally? - it must discard any asserted similarities not established."

The trial judge considered and rejected the contention of DSJ that the matters stated in the Coincidence Notice were mere assertions: at [122] Judgment No 3. I do not consider that his Honour's reasons were attended with any doubt worthy of the grant of leave.

It was also contended that the trial judge erred in using the terms "information", "confidential information" and "inside information" interchangeably; for example, at [246](3) Judgment No 3, when referring to the common thread running through all 10 acquisitions - "that all related to financial products in or concerning entities the subject of confidential information (being inside information) provided to Moody's". I do not consider that the trial judge conflated confidential information with inside information.

In the example just referred to, the information provided to Moody's by various entities referred to as Moody's Credits, was provided in confidence. Of course there may be a difference between "confidential information" and "inside information" for the purposes of s 1043A of the Corporations Act. His Honour's reference at [246](3) Judgment No 3, should not be taken as suggesting otherwise. Similarly, his Honour's use of the term "confidential information" in [263] Judgment No 3, is not to be read as something different from the reference to "inside information" in the first sentence of that paragraph. His Honour's reference to "inside information" is to be taken as a reference to the particularised information relied upon by the Crown in Table A of the Coincidence Notice.

It was further contended that the trial judge erred in rejecting the distinction between information actually received by Moody's and the information said to be possessed by DSJ, by relying upon the potential operation of s 1042A of the Corporations Act in relation to the expansive definition of "information". "Information", as defined, may include matters of supposition and matters relating to the intentions or likely intentions, of a person.

The Crown submitted that his Honour's reference to s 1042A was unexceptionable as it is to be read in the context of the directions to the jury which were referred to by his Honour at [285](iii)-(iv) Judgment No 3. In oral argument (AT, tcpt 12, lines 22-27) his Honour's reference to directions to the jury was criticised by DSJ as having nothing to do with the present case. Whether that contention by DSJ is correct or not, it does not demonstrate any doubt in his Honour's reasons on the separate trials application which is worthy of the grant of leave. Argument about the appropriateness or otherwise of any direction to the jury arising from s 1042A of the Corporations Act is a matter for determination at the trial. Neither does the separate complaint by DSJ that the trial judge relied upon a matter which had not been raised by the parties warrant a grant of leave. It is otherwise unnecessary to express any view in respect of the trial judge's reference to s 1042A of the Corporations Act.

Section 98 Judgment

The submissions of DSJ also complained of two matters arising from the s 98 Judgment. The first matter was that his Honour had proceeded on the basis that the Crown case involved the notion of a continuing joint venture in share trading. This was characterised by DSJ as an allegation of a joint criminal venture in share trading and the complaint made was that this had never been particularised and was not open to the Crown. It was contended by DSJ that subsequent submissions by the Crown resiled from alleging a joint criminal enterprise (see [169] Judgment No 3), and that instead the idea of a relationship or a "shared interest in trading" between the applicants was relied upon by the Crown: see [223]-[224] Judgment No 3.

The Crown responded that it had never alleged a joint criminal enterprise. Rather, the Crown case was said to have been that there was joint involvement in insider trading. The Crown submitted that it had not disavowed reliance upon an allegation that the applicants acted together and that the evidence established a pattern of conduct by them that exhibited striking similarities, as found by the trial judge: at [195] Judgment No 1, and referred to again at [246]-[247] Judgment No 3.

This debate as to the proper characterisation of the Crown case must be considered in light of the observation of the trial judge recorded at [170] Judgment No 3, that the Crown's position is that it does not seek a direction that there is a single case against each accused, but rather will seek a direction that in considering each count separately the jury are entitled to rely upon all of the evidence relating to the other counts. In my view, the trial judge did not proceed upon a misconception of what the Crown case involved.

Secondly, the contention was advanced by DSJ that the trial judge was in error in acting on the basis that there was a "circumstantial case", in addition to the coincidence evidence case. It was contended that the "circumstantial evidence" in the case consisted entirely in the coincidence evidence and that there was no other body of evidence, and that this misconception carried through to Judgment No 3 at [247].

The Crown disputed the contention by DSJ that there was no other body of evidence apart from the coincidence evidence. The Crown's written submissions identified a number of areas of evidence which were contended to be different from the evidence relating directly to each particular count, including evidence either relating to, or with respect to:

(1) the background of each accused;

(2) email communications between the accused and others;

(3) NS purchasing financial products associated with other "Moody's related" credits;

(4) the purchase of shares in ABY;

(5) the transmission of $30,000 from DSJ to NS.

The trial judge's approach to the Crown case was open to him. No error of principle has been identified by DSJ deserving of a grant of leave in respect of this particular complaint.

Finally, the written submissions of DSJ contained a series of detailed arguments, by reference to a number of counts, which disputed whether the related events were capable of actually establishing the matters particularised in the indictment and the particulars. These detailed complaints did not raise an issue as to the construction of s 98 of the Evidence Act, but rather sought to attack the trial judge's finding that the evidence had the capacity to meet the s 98 threshold. I would not grant leave to appeal in respect of these arguments.

Ground 5

Impact of rulings in Judgments No 4 and 5

Ground 5 of the proposed appeal asserts that the trial judge erred by failing to have regard to the impact on the trial of his decisions in Judgments No 4 and No 5, which ruled that other evidence was admissible under s 55 of the Evidence Act.

It will be observed that Ground 5, as framed, does not assert any error of principle in the evidentiary rulings the subject of Judgments No 4 and No 5.

The contention that the trial judge failed to have regard on the separate trials application (the subject of Judgment No 3), to the asserted prejudice and embarrassment to DSJ's defence that would result from the admissibility of other evidence (the subject of Judgments No 4 and No 5), has already been dealt with above under Grounds 1 and 2. As I have concluded that there is no substance in this contention, I would not grant leave to appeal in respect of Ground 5.

There are three further matters which it is necessary to refer to under Ground 5.

First, the written submissions of DSJ contended that the rulings in Judgments No 4 and No 5 were made without regard to the trial judge's original admissibility ruling in Judgment No 1. This ruling was that the evidence particularised in Table B of the Coincidence Notice relating to the "uncharged acts", was not admissible under s 98 of the Evidence Act. However, as the Crown correctly pointed out in its written submissions, it is self-evident that the trial judge was aware of his earlier ruling in Judgment No 1, when handing down Judgments No 4 and No 5. At [2] Judgment No 4, his Honour makes reference to that earlier ruling as being the genesis of the proceedings with which he was dealing.

Secondly, it was contended by DSJ that, notwithstanding the evidentiary ruling in Judgment No 1 as to the inadmissibility of the "uncharged acts" for a coincidence purpose, the Crown will proceed to use this evidence for a coincidence purpose. Unsurprisingly, the Crown disputed that it intends to act in this manner. Furthermore, the ruling of the trial judge in Judgment No 1 precludes the Crown from doing so. The basis for the admissibility of the evidence referred to as the "uncharged acts" is clear from Judgment No 4.

Finally, it was contended by DSJ that the basis of admission of the evidence which is the subject of Judgments No 4 and No 5 was unclear, because the trial judge used the same language of evidence of "relationship" in Judgments No 4 and No 5 as he used in Judgment No 3 at [224], when describing the Crown case as using coincidence evidence to establish the same "relationship" of a "mutual interest in trading".

This submission should be rejected. As the Crown correctly pointed out, it proceeds upon a misstatement of [224] Judgment No 3, where his Honour stated:

"In the present case, the Crown proposes to use coincidence evidence, inter alia, with a view to establishing that, at the time of each transaction, there existed a relationship, or an association between the two accused which went beyond that of mere personal or social friendship, that they shard a mutual interest in trading, and that in the course of the relationship particularised "events", possessing similarities, occurred that are not explicable as coincidence. (Underlining added)."

It is tolerably clear from the use of the word "inter alia", that his Honour was referring to the evidence to be dealt with in Judgments No 4 and No 5 in the context of his reference to establishing that there existed a relationship or an association between the two accused as described.

Application by NS

The application by NS raises six proposed grounds of appeal. Whilst there is some similarity in content with the proposed grounds of the application of DSJ, some of the matters raised are particular to the position of NS.

Ground 1

Ground 1 of the proposed appeal contends that the trial judge erred in not considering the admissibility of evidence as coincidence evidence against NS, separately from its admissibility against DSJ.

Separate consideration of NS's position

The essential thrust of this contention was that the matters sought to be proved against DSJ are different to those sought to be proved against NS. It may be accepted that there are different elements of the offences charged against NS compared to the offences charged against DSJ.

The written submissions of NS accepted that the trial judge separately set out the relevant arguments, which had been advanced on his behalf: at [57]-[71] Judgment No 3. These included the contention that proof of the state of mind of NS is "a separate matter from the state of mind of DSJ": at [66] Judgment No 3. It was also accepted that the trial judge discussed the arguments advanced by NS on the s 101 issue, including submissions as to probative value, which his Honour reconsidered following the decision in this Court: at [123]-[154] Judgment No 3.

The complaint made by NS was that the trial judge ultimately determined the admissibility of the evidence as against both applicants as a single issue. In support of this complaint, NS pointed to the trial judge's reference to the Crown submissions, in particular as summarised at [165] and [167] Judgment No 3, as revealing the asserted error by his Honour of failing to consider the separate position of NS. It is necessary to turn to the impugned paragraphs of the trial judge's reasons.

At [165] Judgment No 3, the trial judge referred to the Crown's submissions which identified, by a series of questions, the essential facts and issues to be determined by inference from the whole of the evidence "whether constituting an individual offence or all of the offences". Some of the matters identified by the trial judge referred solely to DSJ, other matters referred solely to NS, and one matter referred to both applicants, namely, did DSJ procure NS to acquire Division 3 financial products? In my view, nothing in the trial judge's reference to the Crown's submissions, supports the contention that the trial judge failed to separately consider the admissibility issue as against NS.

Nor can any valid complaint be made in respect of the reference by the trial judge at [167] Judgment No 3 to the Crown's submission that the "ultimate issue" existing "in each case was why NS engaged in that trading". The trial judge's reference to "in each case" was clearly a reference back to [166], where his Honour noted the Crown's submission that there was no doubt that NS traded in financial products relating to companies about which Moody's had, prior to that trading, received inside information. None of these references by his Honour, are to be taken as treating the admissibility of evidence against both applicants as a single issue.

It was next contended by NS that in stating his conclusions at [293] Judgment No 3 - that the evidence "does have significant probative value" and "substantially outweighs any prejudicial effect it may have on the accused" - his Honour failed to distinguish between the probative value of the evidence as regards the matters in issue for DSJ as against the matters in issue for NS. NS complained that there was no proper "weighing" of the evidence with regard to its capacity to prove only the matters in issue as against NS. It was argued that the absence of separate consideration of the probative value of the coincidence evidence as against NS, was demonstrated by his Honour's analysis at [246] and [247] Judgment No 3. In my view, these submissions should be rejected.

First, this contention is not a fair reading of his Honour's judgment. It ignores the earlier references by his Honour to each of "the accused persons" including at [211] and [214] Judgment No 3. Further, at [215], the trial judge distinguished between the terms of the Coincidence Notice insofar as it related to NS and DSJ. His Honour observed:

"The Notice separately identified the nature of the conduct and state of mind of each of the accused the subject of the proposed evidence." [emphasis added.]

At [216], his Honour identified the particular respects in which the Coincidence Notice stated that the evidence of the two or more related events was to be tendered to prove that NS did the particular acts alleged in each of counts 11-20 of the indictment.

At [225]-[226], his Honour referred to the separate position of NS, as opposed to that of DSJ, in relation to the allegation of possession of inside information.

Again, at [232]-[233] and [237], his Honour distinguished the cases against each accused. There is no proper basis for the assertion that his Honour failed to do so.

Secondly, when considering the distinctive similarities in the events, both preceding and post-dating each acquisition, and the circumstances surrounding and associated with each acquisition and disposal: at [246], his Honour expressly acknowledged the separate counts against each of the applicants, when he stated at [247]:

"The events and circumstances referred to in (1) to (3), along with the other events in the Coincidence Notice, support the admissibility of the coincidence evidence in relation to counts 1 to 10 and counts 11-20." [emphasis added.]

Ground 2

Ground 2 of the proposed appeal asserts that the trial judge erred in failing to correctly assess the probative value of the evidence.

Probative value and use of evidence

It was contended by NS that the assessment of the probative value of the evidence (or the assessment whether that value substantially outweighed any prejudicial effect the evidence might have), is to be made having regard to the use to which the evidence is to be put. In the present case, this was said to be what "state of mind" is sought to be proved. It was argued that the probative value of the evidence and the use to which the evidence is to be put are not separate considerations, and that the trial judge erred when (a) stating, at [28] Judgment No 3, that if the evidence is admissible, then a determination must be made as to how such evidence may be used, and (b) when referring, at [208] Judgment No 3, to the use of which the evidence may be put if admitted, in the context of the balancing test under s 101 of the Evidence Act.

In my view, there is no substance in these contentions. On a fair reading of the whole of Judgment No 3, it should not be accepted that the trial judge proceeded on the basis that he would first admit the evidence and then consider what use could be made of it. At [236]-[238] Judgment No 3, the trial judge addressed the submissions of NS concerning the use of coincidence evidence in the present case. It is clear that his Honour proceeded upon the basis that the "use" to which the evidence is to be put is one part of the factors required to be considered prior to the admission or rejection of the evidence as coincidence evidence.

At [208] Judgment No 3, the trial judge stated:

"The balancing test under s 101 accordingly embraces an assessment of the strength of the probative value of the evidence and a consideration of the use to which the evidence may be put if admitted and any risks as to the prejudicial effect arising from such use and risk of misuse. ..." [Emphasis added.]

NS submitted that the implicit assertion by the trial judge in the above passage was that the probative value of the evidence and the use to which the evidence is to be put, were separate considerations. This submission should be rejected. It is clear from his Honour's use of the words "if admitted" in [208] Judgment No 3, that his Honour did not approach the matter in the manner suggested by NS.

Probative value - state of mind of NS

Next, it was contended by NS that the trial judge erred in his consideration of the probative value of the coincidence evidence. First it was argued that whilst the trial judge correctly acknowledged at [218] Judgment No 3 that the evidence was being led not to prove the identity of the offender but to prove the commission of the offence, his Honour did not address the fact that the evidence is sought to be led against NS to prove, in each case, the commission of the offence, by proving a "very specific state of mind".

The premise of this argument is unsound. At [218] Judgment No 3, the trial judge recognised that the Crown seeks to rely upon coincidence evidence in the present proceedings for the purpose of establishing the commission of the alleged insider trading offences, in particular, the liability of the accused in respect of prohibited conduct under s 1043A of the Corporations Act. At [219], the trial judge identified the circumstantial evidence in relation to a combination of events relied upon by the Crown in the present case. At [236], the trial judge recorded that the Crown seeks to use the coincidence evidence to establish the fact that a criminal offence(s) had been committed. At [237], the trial judge noted that the Crown proposed to use coincidence evidence to prove, relevantly in the case of NS, the acts of possession of inside information and his state of mind. At [239], his Honour went on to record the similarities in events and circumstances in which the events allegedly occurred before considering the probative value of the coincidence evidence in Part F of Judgment No 3.

The trial judge did not fail to address that coincidence evidence was being led to prove the commission of the offence, which in the present case, included the state of mind of NS.

Probative value inflated argument

Secondly, it was argued by NS that the trial judge impermissibly inflated the probative value of the evidence by reference to relationship evidence. This complaint was directed to the trial judge's statement at [224] Judgment No 3:

In relation to the arguments of NS concerning the significance of phone calls between the accused, the Crown submitted that those arguments were based upon assertions by NS as to what the evidence was capable of establishing. It was submitted that those arguments were unduly limited in focus to what flows from the specific number of telephone calls between the receipt of the information by Moody's and the acquisition of financial products by NS.

It was also submitted by the Crown that the arguments of NS did not, as the trial judge had done, consider all of these matters in the context of the whole of the evidence relied upon by the Crown. Thus it was argued that deciding what was communicated to NS is not to be determined by the number of calls in isolation. Rather, it is relevant to have regard to the fact of the timing of the calls, and the fact that each of the acquisitions made by NS were consistent with him being in possession of inside information.

In my view, the trial judge adequately addressed the arguments advanced by NS concerning the capacity of the evidence to meet the s 98 threshold. In addition to the matters identified by the Crown as referred to above, this complaint has many common features with the arguments advanced by NS in support of Ground 2 in respect of which I would refuse leave. I would not grant leave in respect of Ground 3.

Ground 4

Jury directions

Ground 4 of the proposed appeal asserted that the trial judge erred in failing to consider the directions that would be necessary to give to the jury as part of the assessment of the admissibility of coincidence evidence. There was a significant overlap between the submissions of NS and those of DSJ in respect of Grounds 1 and 2 of his proposed appeal.

It was contended by NS that the trial judge purported to determine both the probative value of the evidence and its prejudicial effect, without dealing with the directions that would be required at trial. This complaint was directed to [268]-[285] Judgment No 3.

The written submissions of NS accepted that it is the purpose for which the evidence is admitted, and not the reasons for determining its admissibility, which should dictate the direction as to the use which the jury is entitled to make of it: [280] Judgment No 3. It was contended that the trial judge failed to deal with the issues raised by the applicants as to the use to which the evidence was to be put.

The Crown's response was to the effect that the trial judge had set out in appropriate detail, in answer to the applicants' submissions, matters relevant to the issue of the "danger of misuse of evidence"; that his Honour "closely considered" the submissions made by the applicants in this regard: [272] Judgment No 3; and that his Honour was correct to note that the final form of any such directions will be shaped and determined by reference to the actual evidence at trial: [273] Judgment No 3.

In my view, there is no substance in this complaint by NS.

First, it is to be accepted that in determining the issue of prejudicial effect, the trial judge gave consideration to the actual prejudice that the probative value of the coincidence evidence must substantially outweigh: at [266] Judgment No 3. The trial judge considered the two strands of prejudicial effect relied upon by each applicant. The first was the danger of the misuse of the coincidence evidence by the jury. The second was the complexity of the matters that would arise for determination on each count, and all counts, if heard together: at [267] Judgment No 3. It is with respect to the first argument that this proposed ground of appeal is directed.

The trial judge dealt with the danger of the misuse of coincidence evidence at [268]-[285] Judgment No 3. It is apparent that his Honour carefully considered the submissions made by the applicants on this topic: [272] Judgment No 3.

No complaint can be made in relation to the trial judge's observation at [273] Judgment No 3, that the formulation of specific directions will be shaped and determined by reference to the actual evidence adduced at trial, and that in formulating such directions the Court would have input from counsel for each of the parties. Although acknowledging the difficulty in framing directions in specific terms before trial, his Honour carefully considered and identified a number of matters concerning trial directions which could be identified in general terms in advance of the trial.

The complaint by NS that the trial judge failed to consider the directions it would be necessary to give to the jury must be rejected for the reasons already given in respect of the similar complaint by DSJ: see [67] and [70] above.

I would not grant leave in respect of Ground 4.

Ground 5

Ground 5 of the proposed appeal asserted that the trial judge erred in distinguishing the decision of this Court in R v Gale; R v Duckworth.

It was contended by NS that the terms of the Coincidence Notice itself established that the present case is not distinguishable from R v Gale; R v Duckworth, on the basis found by the trial judge. It was asserted, by way of example, that the second "related event" in Table A of the Coincidence Notice - with respect to counts 4, 5, 7, 8, 9 and 10 that DSJ was in direct receipt of the inside information in some instances, and indirectly in others - does not assert any fact, but rather is a matter sought to be proved by the coincidence evidence. On this premise it was argued, that use of this matter as a "related event" involves begging the very same question as referred to by Simpson J at [37] in R v Gale; R v Duckworth.

It was submitted by NS that the trial judge failed to distinguish improbability reasoning in the ordinary case (where proof of the state of mind follows the exclusion of coincidence as an explanation for the events) from this case. It was asserted that the evidence cannot show the same quality of mind in the sense of possession by NS of the particularised information, with respect to any single count simply on the basis of coincidence. Further, it was argued that even if the particular state of mind could be established in relation to one count, proof that some other acquisition was not the result of coincidence does not prove that the same level of information was transferred on some other occasion by DSJ to NS.

The contentions of NS that R v Gale; R v Duckworth is not distinguishable essentially depends on accepting the argument that the trial judge was wrong to find that the Crown relies upon "similarities" not "asserted similarities" based on assumptions as to facts in the Coincidence Notice.

For the reasons given at [102]-[104] above in relation to the similar complaint raised by DSJ, I do not consider that this conclusion by the trial judge is attended with any doubt worthy of the grant of leave.

Ground 6

GasNet - count 11

Ground 6 of the proposed appeal asserted that the trial judge erred in failing to separately consider the admissibility as coincidence evidence of the evidence on count 11 (relating to GasNet) in counts 12 to 20, and the admissibility of the evidence on counts 12 to 20 as coincidence evidence in count 11, having regard to asserted particular differences present in count 11 as against the other counts.

It was contended by NS before the trial judge and on this application, that count 11 (and count 1 against DSJ, which also related to GasNet) was in a special category because of the differences between the "events" or the circumstances in which the events occurred.

The "divergences" argument advanced by NS, was recorded by the trial judge at [124] s 98 Judgment. His Honour dealt with that argument at [125]-[126] s 98 Judgment. His Honour referred to his previous consideration of the facts concerning GasNet in Judgment No 1. His Honour also noted that he had considered the possibility that the transaction the subject of the GasNet account had an innocent explanation. His Honour went on:

"[126] ... However, I do not consider that, taken in context, that the variations or 'divergences' referred to of themselves are of sufficient weight to deprive the evidence concerning the GAS count of its significant capacity as coincidence evidence."

The trial judge recorded the further submissions of NS with respect to count 11 (GasNet) at [47], [61] and [127]-[32] Judgement No 3, as well as the Crown's submissions at [179]-[181] Judgment No 3. At [127], his Honour noted that the facts and submissions made in relation to GasNet were recorded at [301]-[329] of the Schedule to Judgment No 3. At [324] of the Schedule, his Honour again referred to the divergences argument of NS and stated:

"The issue becomes whether they are such as to displace relevant similarities. Firstly, a 'pattern' suggests similarities but not a fixed template. There may exist matters in common but not a complete identity of all features."

His Honour identified at [324] of the Schedule, that the relevant points of similarity with the GasNet count included:

"(i) [DSJ], as an insider directly received 'inside information'.

(ii) BBI was a 'Credit' of Moody's at the relevant time.

(iii) On 14 June 2006 GasNet shares were purchased in parcels - one in [NS's father's] name and another in the names of [NS] and his sister.

(iv) The acquisition was made a few days before the scheduled public announcement."

The trial judge noted, at [325] of the Schedule, other points of similarity relied upon by the Crown in relation to the GasNet count, albeit there were some variations to the other counts. His Honour's analysis of the facts and submissions made in relation to the GasNet count are to be read together with his Honour's consideration of the submissions of NS concerning "system" or "pattern" at [230]-[235] Judgment No 3.

At [246] Judgment No 3, the trial judge addressed the probative value of the coincidence evidence arising from distinctive similarities in the events both preceding and postdating each acquisition and in the circumstances surrounding and associated with each acquisition and disposal. His Honour's assessment of those similarities included similarities in relation to the acquisition of the GasNet shares, whilst noting a difference being that the purchase was by NS's father in two parcels. One of those parcels was allocated to an account in the name of NS and his sister.

There is no substance in the complaint of NS that the trial judge failed to consider the submissions which had been advanced by NS as to why count 11 should be severed from the remaining counts.

I would not grant leave in respect of Ground 6.

Conclusion and Orders

I would not grant leave to appeal in respect of any of the proposed grounds of appeal in the application of either applicant.

I propose that each application be dismissed.

HIDDEN J: I agree with Gleeson JA.

ROTHMAN J: I have had the considerable advantage of reading, in draft, the reasons for judgment of Gleeson JA. It is therefore unnecessary for me to repeat the background, facts or details involved in the appeal, except to the extent necessary to elucidate the further points.

The starting point for an assessment of the issue before the Court is that, as a serious Commonwealth offence triable on indictment, the trial must occur before a jury: s 80 of the Constitution. The assessment by the trial judge as to whether separate trials are appropriate is performed in that context.

The indictment charges, as Gleeson JA has summarised, twenty counts of insider trading of two kinds (s 1043A of the Corporations Act 2001 (Cth)), ten counts against each accused, each of which count relates to conduct of both accused. In other words, each count for each accused has a counterpart charge against the co-accused.

Jurisdiction

In Kocer v Regina [2006] NSWCCA 328, the Court (Rothman J, McClellan CJ at CL and Buddin J agreeing) examined the history of s 5F and the context s 5F(3) of the Criminal Appeal Act 1912. Unless the term "interlocutory order" in s 5F(2) and s 5F(3) of the Criminal Appeal Act is read to exclude rulings on evidence, s 5F(3A) of the Criminal Appeal Act would be otiose: see Kocer at [11] - [15], and the cases cited therein; and now see DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568.

Thus, there is, by leave, available to an accused an appeal against an interlocutory order, but not against an evidentiary ruling. Nevertheless, there is no express prohibition on appeals against evidentiary judgments or orders (or, if it be different, rulings).

The purpose of differentiating decisions or rulings on evidence from interlocutory orders was discussed in DAO and in Kocer. In Kocer, at [1]-[3], McClellan CJ at CL refers to the undesirability of interference or interruption with a criminal trial because of the effect of such interruption on the administration of justice. In Kocer, I also discuss such issues at [22] and, in relation to fairness or unfairness, at [18]-[19].

Once, as here, the jurisdictional gateway established by s 5F(3) of the Criminal Appeal Act has been identified and the appeal has been brought within its terms, the question of whether leave ought to be granted arises. The fact that the interlocutory judgment or order is largely predicated on one or more rulings on evidence does not necessitate a refusal of leave, although the rulings themselves could not have been the subject of a separate appeal.

The grant of leave will depend upon a range of factors described herein by Gleeson JA at [6]. I agree, if that be the basis for the comments at [7], that where, as here, the interlocutory order depends on rulings on evidence, that will be a significant factor in deciding the question of leave. The significance depends, in my view, not on the unavailability of an appeal against rulings on evidence, but on the basis that rarely will such an appeal give rise to the kind of issues for which leave would be granted, because they do not generally warrant an interference with the trial. In my view, nothing in DAO at [16], [106] or [208] is inconsistent with that approach.

I also agree that the established principles identified by the High Court in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505 are to be applied on appeal against an order refusing separate trials. First, when a judge refuses an order for separate trials, the judge is nevertheless issuing an order or judgment: Maxwell v Keun [1928] 1 KB 645; Sali v SPC Ltd (1993) 67 ALJR 841 at 843; Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1 at 3; Holborn v Guardians of Union Chertsey (1884) 15 QBD 76 at 79; Re Lamb [1894] 2 QB 805.

Secondly, the established principles to which Dixon, Evatt and McTiernan JJ referred in House include manifest error and a ground of substantial miscarriage of justice. In my view, an application for separate trials that relies on a ground of manifest injustice, if the trial were to proceed as presently anticipated, is not, in the sense to which the High Court referred in Adam P Brown v Phillip Morris [1981] HCA 39; 148 CLR 170, simply a matter of procedure.

A fundamental issue on the grant of leave under s 5F(3) is whether the grounds raised justify interference with the trial process, when the appellant's rights are protected on an appeal against conviction. That issue depends on the strength of the ground raised in the appeal and the interests in the administration of justice associated with allowing a trial to proceed in circumstances where there is a strong possibility that an appeal against conviction may lead to a retrial.

The last mentioned matter will generally be less important than the first mentioned in the previous paragraph, but where, as here, the trial will proceed over many months, at great expense to the parties, different relative weights may be appropriate. Further, in the present case, because these rulings by the trial judge have been made as preliminary rulings, there is no trial currently proceeding or fixed with which this appeal is interfering.

The foregoing discussion on the question of leave is not intended to diminish the significance of the circumstance that a central issue in a particular application for leave to appeal may be an evidentiary issue. It is intended, rather, to emphasise that it is the principle (or lack of it) raised by the appeal that is central to the question of whether leave ought to be granted, not the circumstance that evidentiary rulings cannot separately be the subject of an interlocutory appeal.

Basis of Application for Leave

The judgment of Gleeson JA sets out with great clarity each of the grounds upon which each appellant relies in seeking leave to appeal (and, if leave be granted, in the appeal itself). It is unnecessary to repeat those grounds.

Fundamentally, the application for leave to appeal and the appeal itself rely upon two broad principles. The first is that there is a need for separate trials because the aggregation of all of the counts in one indictment will render the trial judge's directions to the jury necessarily confusing, extremely detailed and consequently unfairly prejudicial to each of the accused. The second basis, which in part, at least, is a factor in the first, is that charging both co-accused with each of the charges, and prosecuting them in one proceeding, is unfairly prejudicial to each co-accused, because of the circularity of the inferences sought to be drawn and the unfair prejudice that will result as a consequence.

Each of the foregoing bases is related. Essentially they raise not the theoretical question of whether the evidence is admissible against each of them and on all counts, but whether, as a matter of practical justice, each co-accused can be fairly prosecuted in that manner.

Consideration

The circularity of the evidentiary issue is almost self-evident. As the Crown, at the appeal, sought to explain it, each of the circumstances of the conduct that gave rise to the charges in counts one to nine is to be used as coincidence evidence in count ten. Each of the conduct in counts one to eight and ten is to be used as evidence of guilt in relation to count nine; and so forth.

In other words, on each count on the indictment, the conduct alleged in every other count will be used to prove that the trading activity engaged in by each of the co-offenders was not innocent and was engaged in at a time when the relevant co-accused had, or obtained, inside information concerning the entity in which the shares were purchased.

It must be recalled that, with offences under this provision, the conduct of each co-accused is totally innocent in the absence of proof that the particular co-accused had possession of inside information. Usually, but not necessarily, in criminal trials coincidence evidence or tendency evidence is concerned with conduct that is, by its nature, criminal. Obvious examples are those with which the cases on tendency and similar fact evidence have largely been concerned. R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 concerned tendency evidence as to sexual assault on minors. R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 concerned drug supply. Similarly, the earlier English judgments, in pre-Evidence Act treatment of similar fact or propensity evidence dealt largely with sexual offenders: Hoch v The Queen (1998) 165 CLR 292; DPP v Kilbourne [1973] AC 729; DPP v Boardman [1975] AC 421. Noor Mohamed v The King [1949] AC 182 concerned poisoning.

In this case, there is little or no issue as to the fact of share trading. The only issue in the proceedings is whether one of the co-accused possessed inside information and passed it to the other co-accused. Thus, the existence of other share transactions is not being used to prove that a share transaction occurred. The existence of other share transactions involving clients of the employer of one co-accused is being used to demonstrate that another count relating to another particular share transaction, involving other clients of the co-accused's employer, were occasioned as a result of the possession of inside information.

In the absence of direct evidence as to the possession of the information of the co-accused's employer, the difficulty with such an approach is obvious. Moreover, at least arguably, it is not the coincidence that renders the state of mind more likely to exist, it is the conduct itself. The foregoing comment would suggest that the relevant notice should have referred to s 97 of the Evidence Act 1995. This last aspect matters little, because the test as to admissibility is identical.

Nevertheless, the material that has been ruled admissible (and capable of being used for the purpose suggested) is coincidence evidence, namely evidence adduced of two or more events to prove that each of the co-accused either did a particular act or had a particular state of mind (namely, procure the other co-accused or possess the inside information) to prove that in each of the counts the particular co-accused engaged in that conduct or possessed that information. The difficulty (leaving aside certain independent evidence that is not related to the other counts) is that the two or more events are each counts in the indictment.

In those circumstances, the communication between the co-accused and/or the purchase of shares in an entity, which was a client of the employer of one of the co-accused, is to be utilised to prove, beyond reasonable doubt, the guilt on another count and the other count is to be used to prove, beyond reasonable doubt, the earlier criminal conduct.

Ordinarily, an inference proving, beyond reasonable doubt, an essential element or fact in the commission of an offence may be drawn from a series of circumstances that are not each proved beyond reasonable doubt: Shepherd v The Queen (1990) 175 CLR 573 at 576-577, unless the fact is an essential link in the chain of proof.

In criminal proceedings, if there be an hypothesis inconsistent with guilt that is reasonably available from the evidence that is accepted, the jury would not be entitled to return a verdict of guilty. However, except as earlier stated, facts that have not been proved beyond reasonable doubt may be aggregated to reach a conclusion beyond reasonable doubt. That is the nature of circumstantial evidence.

In this instance, the events, being the communication between the co-accused and the share transactions (without evidence of the possession of information), are to be used to prove the possession of information (and the conveying of that information). As a consequence, the communication between the co-accused and the share transactions, which form essential elements of the charges, are, without more, to be used to prove the further essential element of the charge, namely, the possession of the inside information.

None of the foregoing is legally impossible or necessitates inappropriate or illogical reasoning. In some circumstances it is a usual course. For example, where a person deliberately shoots a gun and kills someone, the irrefragable inference is that there was at least an intention to cause grievous bodily harm. The state of mind is inferred from the conduct of the shooter. However, where the conduct that is engaged in is otherwise legal and rendered illegal only by the possession of certain information, to use such otherwise legal conduct to infer illegality has difficulties. Again, it is not impossible or necessarily inappropriate.

Nevertheless, whatever be the theoretical possibility associated with the capacity to use otherwise legal activity to infer an illegal state of knowledge and illegal conduct, it creates significant difficulties in the directions that the judge is required to provide to the jury.

Were it not for the previous judgment of this Court on the admissibility of evidence, I would consider that the evidentiary issues in this case raise grounds that might warrant leave being granted. I would hold this view even though the evidentiary issues are incapable of giving rise to a right of appeal of themselves because they inform the discretion on separate trials. However, there has already been a determination by this Court of those evidentiary issues. It is inappropriate, in those circumstances, for this Court, as presently constituted, to gainsay the view already expressed by this Court on another occasion.

Further, the difficulties in framing an appropriate direction, to which I have referred, are to be faced by the trial judge after submissions by counsel. The trial judge has determined that such unfair prejudice can be overcome by appropriate directions.

Although the view of a trial judge that she or he may by directions overcome or ameliorate adequately the unfair prejudice created by a joint trial of all counts requires a consideration of possible directions that the judge may provide, at the same time, it cannot be a requirement of a trial judge to frame such appropriate directions prior to, or at the time of, coming to that conclusion.

It would be an intolerable burden on trial judges to be required to frame directions on each occasion that the question of unfair prejudice (for example, an objection to s 137 of the Evidence Act) was raised. Ordinarily, the form of directions will alter, sometimes dramatically, as the trial progresses and as the judge takes account of changes to the anticipated evidence or its perception.

The trial judge has dealt with these matters on a number of occasions already. His Honour has an intimate knowledge of the manner in which the Crown seeks to put its case. His Honour has determined that appropriate directions are capable of being framed.

The conduct of a trial often involves issues that are resolved between judge and counsel whilst the trial is in process. In a case such as this, the judge's proposed directions will no doubt be the subject of submissions. Any interlocutory judgment on that issue is, pursuant to s 5F of the Criminal Appeal Act, capable of application for leave to appeal. Any error of law in the directions or miscarriage of justice occasioned by inadequate directions, if either accused were convicted, can be raised at an appeal against conviction.

Given the earlier judgment of this Court on the evidentiary issues raised, the nature of the judgment on the separation of counts in the indictment is not one that warrants interference with this exercise of discretion, because the applicants' rights to appeal any unfavourable verdict are fully protected.

For the foregoing reasons, I join in the orders proposed by Gleeson JA.

**********

Decision last updated: 13 May 2014

Medium Neutral Citation:	DSJ v R; NS v R [2014] NSWCCA 77
Hearing dates:	3 September 2013
Decision date:	13 May 2014
Before:	Gleeson JA at [1]; Hidden J at [212]; Rothman J at [213]
Decision:	2010/34654 (DSJ v R) Application for leave to appeal dismissed. 2010/40493 (NS v R) Application for leave to appeal dismissed.
Catchwords:	APPEAL- Appeal - General principles - Right of appeal -When appeal lies - From interlocutory decisions - Leave to appeal CRIMINAL LAW - Appeal - Interlocutory orders - Section 5F(3) Criminal Appeal Act 1912 - Interlocutory order not to order separate trials - Application of Section 21 Criminal Procedure Act - Question of admissibility of evidence central to decision of primary judge - Admissibility of coincidence evidence - Section 98 and 101 Evidence Act 1995 - Whether leave ought to be granted
Legislation Cited:	Constitution s 80 Corporations Act 2001, s1042A, 1043A Criminal Appeal Act 1912, s5F Criminal Procedure Act 1986, s21 Evidence Act 1995, s55, 97, 98, 101 and 137
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 DAO v R [2011] NSWCCA 63; 81 NSWLR 568 De Jesus v R [1986] HCA 65; 68 ALR 1 DPP v Boardman [1975] AC 421 DPP v Kilbourne [1973] AC 729 DSJ v R; NS v R [2011] NSWCCA 222 DSJ v R; NS v R [2012] NSWSC 409 DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 Hoch v The Queen (1998) 165 CLR 292 Holborn v Guardians of Union Chertsey (1884) 15 QBD 76 House v R [1936] HCA 40; 55 CLR 499 In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 Kocer v Regina [2006] NSWCCA 328 Ludlow v Metropolitan Police Commissioner [1971] AC 29 Maxwell v Keun [1928] 1 KB 645 Noor Mohamed v The King [1949] AC 182 Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1 Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 R v DSJ; R v NS [2011] NSWSC 894 R v DSJ; R v NS (No 3) [2013] NSWSC 471 R v DSJ; R v NS (No 4) [2013] NSWSC 472 R v DSJ; R v NS (No 5) [2013] NSWSC 473 R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 R v Frazer [2002] NSWCCA 59; 128 A Crim R 89 R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 R v Georgiou [1999] NSWCCA 125 R v JGW [1999] NSWCCA 116 R v Lock (1997) 91 A Crim R 356 R v Lockyer (1996) 89 A Crim R 457 R v Powch (1988) 14 NSWLR 136 R v Smith [1981] 1 NSWLR 193 R v Steffan (1993) 30 NSWLR 633 R v Van Phu Ho (NSWCCA, 18 July 1994, unreported) Re Lamb [1894] 2 QB 805 Sali v SPC Ltd (1993) 67 ALJR 841 Saunders v R (1994) 72 A Crim R 347 Shepherd v The Queen (1990) 175 CLR 573 Sutton v R [1984] HCA 5; 152 CLR 528 Verma v R (1987) 30 A Crim R 441
Category:	Principal judgment
Parties:	CCA 2010/34654 (DSJ v R) DSJ (Applicant) Regina (Respondent) CCA 2010/40493 (NS v R) NS (Applicant) Regina (Respondent)
Representation:	Counsel: CCA 2010/34654 (DSJ v R) T Game SC with G Bashir (Applicant) G A Farmer SC with J Paingakulam (Respondent) CCA 2010/40493 (NS v R) H Dhanji SC (Applicant) G A Farmer SC with J Paingakulam (Respondent) Solicitors: CCA 2010/34654 (DSJ v R) Speed and Stracey Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) CCA 2010/40493 (NS v R) Johnson Winter & Slattery (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2010/34654; 2010/40493
Decision under appeal	Citation: [2013] NSWSC 471 Date of Decision: 2012-05-18 00:00:00 Before: Hall J File Number(s): 2010/34654; 2010/40493