Gelavis v Australian Securities and Investments Commission - [2002] WASCA 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GELAVIS -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2002] WASCA 237

CORAM: PULLIN J

HEARD: 12 AUGUST 2002

DELIVERED : 30 AUGUST 2002

FILE NO/S: SJA 1048 of 2002

MATTER :The Justices Act 1902

BETWEEN: GEORGE MICHAEL GELAVIS
Appellant
AND
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent

Catchwords:

Corporations - Examination under s 19 of the ASC Law - Statement false in material particular

Criminal law and procedure - Justices Act appeal - Whether miscarriage of justice

Legislation:

Australian Securities Commission Act1989, s 13(1), s 19 and s 64

Corporations Law, s 1002G

Justices Act 1902, s 199(1)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M J McCusker QC & Mr G R Donaldson
Respondent: Mr S D Hall

Solicitors:

Appellant: Steinepreis Paganin
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Canale v Bayens [2001] WASCA 383
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Chidiac v The Queen (1991) 171 CLR 432
De Gruchy v The Queen [2002] HCA 33
M v The Queen (1994) 181 CLR 487
Mellifont v Attorney General (Qld) (1991) 173 CLR 289
Mifsud v Campbell (1991) 21 NSWLR 725
Shepherd v The Queen (1990) 170 CLR 573

Case(s) also cited:

Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Christianos v The Queen; unreported; CCA SCt of WA (Malcolm CJ, Pidgeon & Murray JJ); Library No 9217; 11 April 1992
Hewitt (1913) 9 Cr App Rep 192
R v Davies (1974) 7 SASR 375
R v Lewis (1914) 10 Tas LR 48
R v Traino (1987) 45 SASR 473

PULLIN J: The appellant appeals against his conviction by Mr P Thobaven SM of an offence against s 64 of the Australian Securities Commission Act 2001 ("ASC Law") on 8 March 2002.
The charge of which he was convicted read that:
"On or about 18^th August 1997 …
in the course of an examination conducted pursuant to section 19 of the ASC Law (the appellant) made a statement that was false in a material particular contrary to section 64(1)(b) of the ASC Law."
Particulars of the charge were given, and they read:
"(a)On or about 18 August 1997, the ASC conducted an examination of the defendant pursuant to section 19 of the ASC Law ('the section 19 examination').
(b)The purpose of the section 19 examination was to obtain information from the defendant in relation to the suspected insider trading in shares in Stanley Mining Services Pty Ltd ('SMS') using an account at Eyres Reed Limited named 'Bohemia Pty Ltd'.
(c)In the course of the section 19 examination the defendant admitted he had lied at his previous meeting with ASC when he stated that he had conducted the trades. The defendant claimed to have no knowledge of the Bohemia account at Eyres Reed or the trades in question until being contacted by the ASC in relation to the matter.
In particular, Mr Hackett asked the defendant the following question during the s19 examination (at page 32 of transcript):
'Ok.When you first found out about this particular mater, presuming – was that also the first time you found out that there was an account called Bohemia at Eyres Reed?'
Mr Hackett's reference to 'when [Mr Gelavis] first found out about this particular matter' was a reference to when Mr Gelavis was first contacted by the ASC in relation to the suspected insider trading in shares in SMS, on or about 30 July 1997.
(d)The defendant answered Mr Hackett's question:
'Privilege.That is absolutely correct.'
(e)The defendant repeated, in the course of the section 19 examination, that he was telling the truth (pages 50 and 65‑66).
(f)The defendant did know of the Bohemia account at Eyres Reed prior to being contacted by the ASC in relation to this matter. His statement was therefore false. His statement is to be read in the context of the entire transcript of the section 19 examination."
It is not in dispute that an ASC investigator "first contacted" the appellant "in relation to the suspected insider trader in SMS" on 22 July 2002, and so the reference in par (c) of the particulars to a date "on or about 30 July 1997" was understood at the hearing before his Worship, and at the hearing of this appeal, to be a reference to 22 July 2002. The appellant gave evidence before his Worship that that was his understanding of the question on 18 August 1997 which led to the allegedly false statement.
Expressed in other words, the charge therefore alleged that the appellant's statement that it was "absolutely correct" that he found out for the first time on 22 July 1997 about the Bohemia Pty Ltd account at Eyres Reed on which trading in SMS shares took place, was materially false.

The Undisputed Facts and Findings of Fact

The main players in these events were the appellant, a Mr Damian Conboy, and Mr P G Sharbanee. Mr Conboy and the appellant were friends, and they resided at the same house in April 1997. Mr Conboy worked at the stockbrokers then called Eyres Reed Ltd ("Eyres Reed") from at least 1992 through until 1994. Mr Conboy began working as an operator, that is keying in orders, but later he worked as a client adviser. Mr Sharbanee began working at Eyres Reed in 1993.
On 16 February 1993, a "new account application" was filled out for Bohemia Pty Ltd. This is a document generated within Eyres Reed's office. Mr Conboy's signature appeared against "adviser's signature" and was approved by a director of Eyres Reed. The address shown on the form was Unit 1, 71 Howe Street, Osborne Park. This was the address of the appellant's family business. The appellant admits that he caused this account to be opened and that he traded on the account in 1994. The transactions in 1994 were recorded in records within Eyres Reed's office. There was then a break, and the next transactions started in March 1997.
There were a number of buy and sell orders between March 1997 and the end of July 1997. In particular, on 3 and 4 April 1997, the statement of transactions records that Eyres Reed bought on Bohemia Pty Ltd's account, 300,000 Stanley Mining shares.
Eyres Reed then sold on Bohemia Pty Ltd's account, the 300,000 Stanley Mining shares realising just over $270,000 on 9 April 1997, and sold some Max Resources shares realising just over $33,000 on 3 April 1997. Mr Sharbanee at Eyres Reed effected all these 1997 transactions on behalf of Bohemia Pty Ltd. Mr Conboy gave the instructions to Mr Sharbanee to do so. On 2 May 1997, the Eyres Reed Statement of Transactions reveals that the credit balance in the account was reduced to zero. This happened because an Eyres Reed cheque for the balance of $22,629.37 was drawn in favour of Bohemia Pty Ltd. It was paid into an account styled Bohemia Food Distributors Pty Ltd at the National Australia Bank. It is not in dispute that this account was an account of which the appellant was a signatory. A cheque was drawn on that account of $18,100 made payable to "Bank Cheque payable to Damian Conboy" and signed "G Gelavis". It is not in dispute that this cheque was drawn by the appellant. On the same date, the National Australia Bank drew a bank cheque for $18,100 payable to Damian Conboy.
Before these transactions between March and May 1997 took place, Mr Conboy said that he wanted the address on the Bohemia Pty Ltd account changed to his post office box number. Mr Sharbanee told Mr Conboy that a change of address form would have to be signed. Mr Sharbanee then caused such a form to be generated and sent in the mail. The change of address form was completed and lodged with Eyres Reed Ltd. This was dated 16 April 1997 and processed within Eyres Reed's office on 29 and 30 April 1997, and it showed that in lieu of Unit 1, 71 Howe Street, Osborne Park, the new address of Bohemia Pty Ltd was to be Post Office Box 1642, Subiaco, WA. This was an address of Mr Conboy. There was a fax number shown on the form, which was the fax number of a facsimile machine in the Votel office where the appellant worked. The facsimile machine was located outside the office of Mr Conboy's brother, Paul Conboy, who also worked at Votel with the appellant. The evidence was that Mr Conboy "used to come past the office (of Votel) quite a bit" and that he "used the offices (of Votel) as a base for a period of time as well" (see AB544). The mobile phone number on the form was the number of Mr Conboy's mobile. The fixed telephone number was shown on the form. This was the number of the residence where Mr Conboy and the appellant lived in Leederville. It is not clear when the signed change of address form was received. Although it is dated 16 April 1997, Mr Sharbanee said that he would have been surprised if it came in after the Bohemia Pty Ltd account was reactivated in March 1997.
The change of address form was signed by the appellant. He denied on oath that the signature was his, and before the Magistrate there was expert evidence on the issue which led to a finding by the Magistrate, which is not now challenged, to the effect that the signature was that of the appellant.
I should also mention, a little out of chronological order, that at another firm of stockbrokers called Todd Partners, the appellant opened an account with that broker in the name of Bohemia Pty Ltd. About a week later, on 28 November 1996, the appellant then signed a chess sponsorship agreement with Todd Partners showing the name Bohemia Food Distributors Pty Ltd.
Some time before 22 July 1997, the ASC began enquiring into share trading in respect of Stanley Mining. The ASC was investigating a spike in the share price. The transactions on the Eyres Reed Bohemia Pty Ltd account attracted its attention.
On 22 July 1997, the appellant received a telephone call from Ms Brennand, an investigator with the ASC. Neither Ms Brennand nor Mr Gelavis could clearly remember the details of the call. It was not in dispute, however, that Mr Gelavis was told that the ASC were enquiring about trading on the account of Bohemia Pty Ltd in relation to Stanley Mining shares.
On or about 22 July 1997, after speaking to Ms Brennand, the appellant spoke to Mr Conboy by telephone and in person, and gained some information about the account, but as will appear later in these reasons he was quite uncertain about some of the details of the discussions.
On 30 July 1997, the appellant was interviewed at the offices of the ASC. The interview was conducted by a Mr Hackett and Ms Brennand, both of whom were investigators working for the ASC. The appellant was shown an Eyres Reed Statement of Transactions on the Bohemia Pty Ltd account, the first line of which showed an opening balance of zero and the date 1 October 1996 against it (see AB781). It also showed some transactions in March of 1997, and then it revealed the transactions starting on 3 April 1997 in relation to Stanley Mining, the sale of those shares and some other transactions, and showed the payment of the cheque for $22,629.37 on 2 May 1997. At this meeting, the appellant answered a number of questions put to him by Ms Brennand.
Among the questions which were put and the answers given were the following:
"Question 6,
'Where do you presently work? How long have you worked there, what is your position and where did you previously work?'
The answer was,
'Working at Votel Pty Ltd for a period of 8 months since November 1996 as managing director. Previously worked at Bohemia Food Distributors Pty Ltd. Also worked at BNJB Nominees and previously a chartered accountant with Pricewaterhouse'." See AB137.
He was then asked in Question 7 whether a buy order had been placed through Eyres Reed for 200,000 Stanley Mining shares on 3 April 1997. The answer to that question was:
"Yes. George Gelavis traded on that account, probably with Scott Cuomo at the time he made that order."
Question 8 was then:
"Why did you purchase so many shares?"
And the answer was:
"Scott Cuomo had provided advice suggesting purchase Stanley Mining shares as there had been increase in volume. The volume was due to buying out of Potter Warburg. There was a rumour of a takeover by Century Drilling and at the time they were using the offices of Vodafone at 203 Hay Street, Subiaco where a meeting was held with Scott Cuomo." (See AB138).
Question 10 was:
"With whom did you place the order and is he your normal client adviser?"
And the answer was:
" 'Paul Sharbanee.'
…
'Is your normal client advisor?'
'Yes.' "
Question 11 was:
" 'Are the – – are you the only person who trades on this account?'
And the answer was,
'Yes'."
Question 12 was:
" 'Does Mr Sharbanee have discretion to trade on this account? Has he ever used his discretion to trade on this account and when, why and what did he buy or sell?'
The answer was that he had no buyer discretion on this account but he did have discretion to sell, … "
Question 14 was:
"Who or what address is shown on the statement and does Mr ‑ ‑ does Bohemia Pty Ltd have an ACN number or is it incorporated?"
Mr Hackett gave evidence that:
"… and answer that there was a correct statement by Mr Gelavis." (See AB139‑140.)
Question 22 was in two parts. First:
"Had you traded in the Stanley Mining shares prior to 3 April 97?"
The answer was:
"No" (See AB142).
The second question under 22 was:
"How many Stanley Mining shares do you hold ... now?"
The answer was:
"None".
Question 25 was:
" 'When did you open an account with Eyres Reed?'
The answer was,
'1992 ... '."
According to the transcript of the hearing before the Magistrate, Question 23 read:
"How much credit does Eyres Reed extend to this account and do they have security and why do they extend that much credit?"
The answer was:
"Max Resources was provided a scrip to the security and there was no right of off‑set against that so he was happy with the existing arrangements."
The appellant later admitted that some of these answers were deliberate untruths. Some answers were correct.
In summary, these answers were to the effect that the appellant placed the orders to buy the Stanley Mining shares (which was untrue); that the account was opened in 1992 (which was approximately true); that he was the only person who traded on the account (which was untrue); that he decided to purchase Stanley Mining shares on 3 April 1997 (the date was correct); that he had not traded in Stanley Mining shares prior to 3 April 1997 (which was correct); that he held no Stanley Mining shares on 30 July 1997 (which was correct); and that Eyres Reed gave credit on the basis of Max Resources scrip (which the appellant did not allege was incorrect).
On 5 August 1997, pursuant to s 13(1) of the Act, Ms Brennand, in her capacity as a delegate of the ASC, decided to commence an investigation in relation to suspected contraventions of s 1002G of the Corporations Law (the insider trading provisions). The relevant period was specified to be 1 April 1997 to 4 April 1997, and the file note recording the decision read:
"From a preliminary review of the information provided in the Australian Stock Exchange ('ASX') Market Surveillance Referral 97032A9712 and information in the ASC's possession, I am of the view that a breach of section 1002G of the Law may have been committed for the following reasons:
1. During the relevant period Stanley Mining Services Limited ('SNY') shares rose from 67 cents on 1 April 1997 to 79 cents on 4 April 1997, on volume of 1,861,292; prior to a trading halt being applied on 4 April 1997. SNY were then suspended on 7 April 1997, prior to announcing on 8 April 1997 that a takeover offer had been received from Layne Christensen Australia Pty Ltd – a subsidiary of a US based company;
2. The majority of the SNY shares purchased were for clients of Potter Warburg Securities Pty Ltd ('Potter Warburg'), Eyres Reed Pty Ltd, ('Eyres Reed'), and Hartley Poynton Limited ('Hartley Poynton');
3. Information known is that buy orders placed on the Potter Warburg client accounts on 1 April 1997, were all received at the same time, 11:00am, by the same client adviser, Steven Hawkins;
4. Information obtained is that the buy orders placed on the Hartley Poynton accounts were placed on accounts associated to client advisers, in both the Perth and Sydney offices;
5. Information obtained is that the two largest buy orders placed on accounts at Eyres Reed were for accounts associated to each other and the client adviser who accepted the orders, Paul Sharbanee.
Determination:
As a result of my review, I have reason to suspect that a contravention of section 1002G of the Law may have occurred in relation to the securities of SNY.
Accordingly, I am also of the view that it is expedient for the due administration of the Law that the ASC investigate the matters set out above." (See AB 942‑943).
On 15 August 1997, the ASC sent a letter to the appellant with a notice under s 19 of the ASC Law, requiring him to appear before three officers for examination on oath and to answer questions. (See AB 860).
The notice read:
"In relation to an investigation of suspected contraventions of section 1002G of the Corporations Law concerning dealing in the securities of Stanley Mining Services Limited (ACN 009 117 533) during the period from 01 April 1997 to 04 April 1997 ('the relevant period'), you are hereby notified that, under subsection 19(2) of the ASC Law, you are required:
(a)to appear at: 2:00pm;
on:18 August 1997;
at:Level 3, 66 St Georges Terrace, Perth,
before Hugh Hangchi, Neil John Hackett and Donna Merrin Brennand for examination on oath or affirmation and to answer questions put to you in relation to the investigation; and
(b)to give the Australian Securities Commission all reasonable assistance in connection with the investigation." (See AB864).
On 18 August 1997, the appellant appeared before the three named persons for examination on oath.
Before the examination commenced, the investigators had discovered that there was no company Bohemia Pty Ltd. It was also quite clear that the Eyres Reed account was in the name of "Bohemia Pty Ltd", and it was also clear to all concerned that the appellant was a director of Bohemia Food Distributors Pty Ltd before August 1996 and that the company had been renamed Fortius Pty Ltd sometime before August 1996.
Very early in the examination and soon after he had been sworn, the appellant read the contents of a statement he had prepared to "assist" the ASC. The statement was read into the transcript. The statement read:
"… STATEMENT OF RECORD OF GEORGE GELAVIS …
1.This statement is made in relation to an inquiry by the ASC into trading in Stanley Mining.
2.On or about 2 August 1997 the ASC's Donna Brennand telephoned me and wanted me to appear at an informal interview in relation to trading by Bohemia Pty Ltd in Stanley Mining shares as there was concern at possible insider trading.
3.I had no knowledge of the trade and immediately telephoned Damien Conboy to discuss the matter as I believed it was him that would have conducted the trade in the company known as Bohemia Pty Ltd. This belief was based on the fact that Damian had traded in the past on the Bohemia account at another broking firm with my permission. Damien said that it was 'a trade like any other trade' and there was nothing untoward about it. It was a 'punt' in his own words and that in relation to insider trading that he had no knowledge that would or could be considered to be insider trading.
4.On this basis I thought I should try to assist him in the hope that this attention by the ASC would all go away and that I would tell the investigators that I undertook the trade. This was untrue. I now realise the seriousness of the matter and I apologise for any inconvenience this may have caused the ASC.
5.The truth is as follows:
(a)subsequent to the phone call from the ASC I discovered that Damien had opened an account at Eyres Reed in the name of Bohemia Pty Ltd (which is probably reference to an inactive company of which I am a director) and had conducted the trade himself in that account. The correct name of the company is in fact Fortius Pty Ltd however prior to August 1996 the company was called Bohemia Food Distributors Pty Ltd;
(b)at no time did I give Damien Conboy authority to open the account or trade in the account at Eyres Reed;
(c)I had no knowledge whatsoever of the subject trade in Stanley Mining. I have not received any documentation whatsoever in relation to this dealing or the account at Eyres Reed and the first time I saw any documentation was at the initial interview at the ASC." (See AB868‑869).

The reference in par 2 of the statement to 2 August 1997 was an error, and it was common ground between the parties that that date should have been a reference to the telephone conversation between the appellant and Ms Brennand on 22 July 1997.
During the course of the examination, the appellant chose to amend par 3 of the statement which had been read by him at the beginning of the examination. He amended par 3 so that it read:
"I had no knowledge of the trade and immediately telephoned Damian Conboy to discuss the matter, as I believed it was him that would have conducted the trade in the company known as Bohemia Pty Ltd. This belief was based on the fact that Damian had traded in the past on the Bohemia Food Distributors account Pty Ltd at another broking firm." (See AB 889).
Counsel for the appellant submitted that the appellant thought on 30 July 1997, when he was being questioned, that the ASC was interested in Mr Conboy and whether he had traded on the Bohemia Pty Ltd account without the appellant's authority. The appellant, being a friend of Mr Conboy, decided to say that it was he (the appellant) who had entered into the transactions. He said that he would try to assist Mr Conboy "in the hope that this attention by the ASC would all go away and that I would tell the investigators that I undertook the trade. This was untrue". The statement also indicates that he had by then realised the seriousness of the matter, and he apologised for any inconvenience he may have caused the ASC. In short, he realised that the real investigation was insider trading in relation to Stanley Mining shares.
He therefore set the scene for the questioning of the examination on 18 August 1997 by denying any knowledge of the Stanley Mining transactions. He stated that the Bohemia Pty Ltd account operated by Mr Conboy in 1997 was not the account under that name that he operated in 1997. He also stated that he thought Mr Conboy had opened an account at Eyres Reed in the name of Bohemia Pty Ltd. He stated that Mr Conboy had no authority to open the account or trade and that he had no knowledge whatsoever of the trades in Stanley Mining. He also stated that he had not received any documentation in relation to the dealing or the account at Eyres Reed, and that the first time he saw any documentation was at the initial interview at the ASC. The claimed motive for lying to the investigators on 30 July 1997 was the desire to protect his friend Damian Conboy. Now on 18 August 1997, he denied that he had anything to do with the April 1997 trades on the Bohemia Pty Ltd account, thereby leaving Mr Conboy to face the music if there was to be any to be faced as a result of the insider trading inquiry. He was then asked the question, later on during the examination, which forms the subject of the charge.
The question and answer are as follows:
"Mr HACKETT: Okay. When you first found out about this particular matter, presuming – was that also the first time you found out there was an account called Bohemia at Eyres Reed?
Mr GELAVIS: Privilege. That's absolutely correct." (AB901)
As I have already stated, the appellant understood that the reference to when he "first found out about this particular matter" was a reference to Ms Brennand's telephone call to him on 22 July 1997.
Subsequently the appellant was charged with the offence of which he was convicted and against which he now appeals.

The Issues at the Trial before the Magistrate

The first issue dealt with by the Magistrate concerned what his Worship called the "principal document". This was the change of address form dated 16 April 1997 (Ex P3). As the Magistrate said:
"The principal document the subject of this action was exhibit P3, which was a change of address form addressed to Eyres Reed and dated 16th April 1997. The prosecution alleges the document was signed by the defendant ..."
The handwriting experts were called on both sides, and they were questioned extensively. The prosecution experts were of the opinion that the writer of the sample signatures (admitted to be those of the appellant) also wrote the signature on the change of address form.
When the appellant was called to give evidence before his Worship, he said that he did not recall signing the document and that he did not think that the signature on the change of address form was his. When he was asked in cross‑examination about the signature, he said that he did not believe that it was his signature. He was then asked whether there was something particularly about the signature that made him believe that it was not his, and the appellant analysed the signature. He then embarked on a detailed explanation why he thought it was not his signature. He said:
"… The first G doesn't look like the kind of G that I would do. The way that the second G connects to the second downstroke doesn't look like something that I would do normally. The way that the signature goes to the right after what looks like some sort of O creation, that doesn't look like something that I would do. The way that the final line comes back up through the actual signature itself is not something that I would do usually.
You wouldn't do it usually, but mightn't you do it? --- It's just not part of my signature ‑ ‑ part of my usual signature." (See AB 617).
Viewed in its entirety, the appellant's evidence amounted to an express denial that it was his signature on the change of address form. He did not ever say that it might be his signature and that, if so, he had forgotten signing it. His Worship had to resolve the dispute about whether or not the signature was that of the appellant, and he concluded that he was satisfied beyond a reasonable doubt that the signature on the change of address form and the ten samples known to have been signed by the appellant, were written by the same person. In short, that the signature on the change of address form was that of the appellant. He found that it was. That conclusion was not challenged on this appeal.
His Worship also dealt with another three points made by the prosecution to support the prosecution's contention that the answer the appellant had given was false. The first was that the appellant showed an awareness of the nature of the trading when he was interviewed on 30 July 1997. The second was that the National Bank transactions I have referred to above showed that on 30 July 1997 he knew about the Bohemia Pty Ltd account at Eyres Reed. The third was that in conversations the appellant had with Mr Sharbanee and Mr Scott Cuomo in mid‑1997, demonstrated he was aware of the Bohemia Pty Ltd account.
The Magistrate, in dealing with the appellant's awareness of the nature of trading at the interview on 30 July 1997, said in his reasons as follows:
"During the first interview he deliberately told an untruth in saying he had bought the 200,000 Stanley Mining shares. After completing the first interview it was obvious the defendant had a problem and when called back tried to correct it with his draft statement. In the no case to answer submission Mr Hall raised a number of issues that reflected on the defendant's knowledge;
(1)The knowledge of Max Resources being held as security
(2)There was no suggestion of there being two accounts referring to Bohemia when faced with the allegations.
I accept that at the conclusion of the first interview he realised how serious the situation was. This is then grounds for his actions and answers at the second interview including denying the knowledge of existence of the account and the change of address." (See AB016)
The Magistrate was there referring to something which was not in dispute before me, namely that while some of his answers to the investigators at the 30 July 1997 meeting were untrue, others were correct. The respondent submitted that the appellant's knowledge of details about the account could only have come about if he did have knowledge of the Bohemia Pty Ltd account at Eyres Reed before 22 July 1997. The appellant disputes this and submits that these details could have been obtained after he was contacted by Ms Brennand on 22 July 1997. I will consider this dispute later in these reasons.
As to the second point made by the prosecution concerning the appellant's knowledge in relation to the National Bank transactions, the Magistrate said:
"The defendant was asked a number of questions in relation to bank signatures and the withdrawal by way of the cheque for $18,100.00. The answers given by the defendant as to the recognition of the signature, as being his were not positive one way or the other and quite frankly are evasive. There is no evidence somebody else signed the cheque, although the obvious person the Defendant would attribute that to was Conboy who was in the same office as the defendant, but as I have said there is no evidence, especially hand writing to support such a contention.
All of that raises the question of where is the money coming from to cover the proceeds being withdrawn. It is obvious by the timing and sequence of the transactions that it was coming from the Bohemia Pty Ltd account at Eyres Reed. Arising from that the defendant should have queried the whole process, and given the intelligence he displayed in the witness box and his training I have no real doubt he did question the process." (AB34‑35)
As detailed below, I consider that his Worship erred on this point.
The prosecution's third point concerned conversations involving the appellant, which might have demonstrated his knowledge of the Bohemia Pty Ltd account before 22 July 2002. The Magistrate in his reasons said:
"Paul Sharbanee gave a good deal of evidence as to share trading but at this late stage of proceedings the matter really in contention was the substance of the meeting at the Ecucina Café and he thought it was between the two meetings of the ASC. The position at that meeting was that the three thought it was very serious, that the defendant should be saying he did not do the trading on the account and he should not be saying that he had knowledge of Conboy trading on the account, because of the insider trading problems." (AB33).
Insofar as his Worship considered that the eCucina meeting afforded any evidence of guilt (and whether he did so is not clear), I consider that his Worship erred. I give my reasons below.
The Magistrate, in the latter part of his reasons, then turned to the evidence of the appellant and noted that the appellant had "created a problem even before his trial began in respect to his credibility". His Worship noted: "he has shown he was prepared not to tell the truth in order to cover up what was happening". His Worship rejected the appellant's contention that, because the transaction statement that the appellant was shown in relation to Bohemia Pty Ltd commenced with an opening balance in 1996, this led him to believe that Mr Conboy had opened up a new account in the name of Bohemia Pty Ltd.
His Worship said:
"I do not conclude that the passage 'opening balance' mislead him into giving an answer he did not intend." (AB34).
His Worship's reasons for decision ended with these two paragraphs:
"If these conclusions are correct then when he went to the meeting on 30/7/97 and 18/8/97 he should have been alerted to the Bohemia Pty Ltd account at Eyres Reed. As his versions (sic) stands it is difficult to accept otherwise. Overall I reject the defendant's evidence.
In the end I am satisfied beyond reasonable doubt that when he went to the Section 19 examination on 18/8/97 he was aware of the Bohemia Pty Ltd account at Eyres Reed and that his answer was untrue." (AB35)
The appellant complains that the last two paragraphs demonstrate an error on the part of the Magistrate in that he asked himself the wrong question. That complaint is ground 5.

Appellant's Grounds of Appeal

Ground 1

The first ground of appeal is that the Magistrate erred as a matter of law in concluding that the answer given by the appellant on 18 August 1997 was "material".
Section 64 of the ASC Law provides that an offence will be committed if a statement is false in a material particular. A statement will be material if it is not only relevant but also "practically relevant" to the subject matter of the investigation. See Mellifont v Attorney General (Qld) (1991) 173 CLR 289 at 308‑309. The requirement that the statement be "practically relevant" is to protect parties from liability for minor inaccuracies or omissions.
What then was the subject matter of the investigation? The s 13(1) file note referred to above reveals that the ASC had decided to investigate the rise in price of the Stanley Mining shares which occurred between 1 April 1997 and 4 April 1997. The transactions by Mr Sharbanee at Eyres Reed were referred to. Thus, the transactions in relation to Stanley Mining on the Bohemia Pty Ltd Eyres Reed account were relevant to this investigation. The s 13(1) note records a suspicion that the ASC had formed that there may be a contravention of the insider trading provision of the Corporations Law. The notice under s 19(2) of the ASC Law, which required the appellant to appear at the examination on 18 August 1997, said that the examination was in relation to an investigation of suspected contraventions of s 1002G of the Corporations Law.
The investigation was therefore directed to finding out who was responsible for any such contraventions. The ASC was trying to find out the persons who were responsible for the Stanley Mining transactions on the Bohemia Pty Ltd account at Eyres Reed. The appellant had opened the account in 1992, but he denied any knowledge of the April 1997 transactions after originally admitting he was responsible for them. A statement about the appellant's knowledge of the Bohemia Pty Ltd account and the transactions which occurred in early April 1997 was, in my opinion, unquestionably relevant and "practically relevant", and therefore "material" to the investigation. The answer given, if false, was false in a material particular. This ground of appeal is dismissed.

Ground 2

This ground asserts that the learned Magistrate erred as a matter of fact in concluding that the appellant, in the s 19 examination, made a statement that was false in denying knowledge of an account called "Bohemia" at Eyres Reed in that at all material times there was not an account called "Bohemia" at Eyres Reed.
In my view, there is no merit in this ground. It is, of course, literally true that there was no account called "Bohemia" at Eyres Reed. However, the appellant was told in the telephone call on 22 July 1997 that he was being asked about trading by "Bohemia Pty Ltd" in Stanley Mining shares. This was carefully recorded in his written statement which he read at the enquiry on 18 August 1997, which I have set out above (see par 2 of that statement). Then in par 3 he himself said that he believed that Mr Conboy would have conducted the trade in the company known as Bohemia Pty Ltd, based on the fact that "Damian had traded in the past on the Bohemia account at another broking firm with my permission". (I have added italics for emphasis.)
After the reading of that statement and when reference was made to "Bohemia Food Distributors Pty Ltd", the questioner and the appellant very soon abbreviated that to become "Bohemia Food Distributors" (AB886), showing that abbreviation by dropping off "Pty Ltd" was the order of the day.
A little later, the appellant then decided he would change par 3 in the way that I have indicated above. This new version of par 3 shows that precision in relation to company names is not the appellant's strong point.
The appellant explained that Mr Conboy had authority to trade on the Bohemia Food Distributors account at Todd Partners, and then not long after he was asked the question and gave the answer which is the subject of the charge. It was clear that the questioner was switching from questions about the Todd Partners' account to the only other "Bohemia" account under consideration, that is the "Bohemia" account at "Eyres Reed". Immediately after the answer which is the subject of the charge, the appellant was asked about the transaction statement which he had been shown at the interview on 30 July 1997. That was the statement relating to the account of "Bohemia Pty Ltd" at Eyres Reed. The subject was revisited only three pages later, and the following exchange took place:
"Ms BRENNAND: So let's just go through this again. You never opened an account for Bohemia Pty Ltd at Eyres Reed?
Mr GELAVIS: Privilege. I'm not a director of a company called that, for a start.
Ms BRENNAND: There isn't a company called Bohemia Pty Ltd; it is a name of an entity, it's not a company.
Mr GELAVIS: Privilege. Well, I've got – as I said, the only company that I've been involved with which is similar to that, is a company by the name of Bohemia Food Distributors Pty Ltd, which is now known as Fortius Pty Ltd." (AB904).
All this reveals that the appellant well knew when he was asked about the "account called Bohemia" that he was being asked about the account "Bohemia Pty Ltd" at Eyres Reed on which the Stanley Mining trades had taken place.
This ground of appeal is dismissed.

Ground 4

This ground alleges that the learned Magistrate erred as a matter of fact in finding that the appellant's false answer to a question put to him at the s 19 examination was deliberate and not as a result of a misunderstanding on the part of the appellant, in that the appellant believed that he was being asked a question concerning an account opened by Damian Conboy and not any account opened, operated or controlled by him. This raises the defence under s 64(3) of the ASC Law; that is, that when making the false statement, he believed on reasonable grounds that it was true and not misleading.
The course of the questions and answers which I have referred to in relation to ground 2 makes it clear that the appellant did understand that he was being asked questions about a "Bohemia Pty Ltd" account at Eyres Reed. This ground goes further, and is a ground which is in the alternative to ground 2. In this case, the foundation for this ground is that he was shown a copy of the transaction statement relating to "Bohemia Pty Ltd" at Eyres Reed but that the appellant believed that this account was different from the Bohemia Pty Ltd account which he had opened in 1993, and which he had admitted he traded on in 1994. His claim is that he thought that this was a new account because the transaction statement had a zero opening balance in 1996.
This claim requires the Court to ignore the fact that the appellant was found to have signed the change of address form in April 1997 relating to the Bohemia Pty Ltd account, and requires the Court to ignore the fact that he knew details about the account, namely that Stanley Mining shares had been purchased in relation to the account on 3 April 1997 and that there were at the time of the interview on 30 July 1997, no longer any Stanley Mining shares held on this account. It was submitted that the appellant knew these latter two details because he had been told of them between 22 July 1997 and 30 July 1997, but as I explain towards the end of my reasons, the evidence does not support this.
The Magistrate did not believe that he was misled into thinking there was a new Bohemia Pty Ltd account at Eyres Reed. In my opinion, the Magistrate made no error in reaching that conclusion. The appellant contends that his Worship erred in failing to refer to the question and answer given on 18 August 1997, which read:
"Ms BRENNAND: Okay. Do you have an account at Eyres Reed at all?
Mr GELAVIS: Privilege. I would suspect that back in 1992, when Damian was originally trading at that firm, I may have had an account, but I couldn't tell you for sure, and certainly any account there would've been under Bohemia Food Distributors Pty Ltd, and it would've been set up correctly at that time, but I cannot honestly answer you and say, 'Yes, there is definitely a Bohemia Food Distributors Pty Ltd account there'." (See AB 905).

In my view, it was not necessary to refer to every aspect of the evidence. This was not evidence critical to the issue about whether the appellant thought the Bohemia Pty Ltd account on which the Stanley Mining shares were traded was the same as, or different from, the account the appellant opened in 1993. As to which, see Mifsud v Campbell (1991) 21 NSWLR 725 at 728. It was not critical because the Magistrate had clearly identified the issue and had noted that the appellant claimed that he was misled into thinking that there were two accounts because the statement of transactions showed an opening entry in 1996. As I have said, the Magistrate rejected that claim by the appellant. This ground of appeal is dismissed.

Ground 5

This ground alleges that the learned Magistrate erred as a matter of law in concluding that the complaint against the appellant was as to whether, in the course of an examination conducted pursuant to s 19 of the ASC Law, the appellant was aware of the Bohemia Pty Ltd account at Eyres Reed on 18 August 1997, when the complaint against the appellant, as particularised and understood by the parties, was that the appellant knew of the Bohemia Pty Ltd account at Eyres Reed prior to 22 July 1997. In my view, his Worship did ask himself the wrong question. The Magistrate therefore reached a conclusion about the appellant's knowledge in relation to the wrong date. This ground succeeds.

Ground 3

By this ground, the appellant alleges that the learned Magistrate erred in concluding that the following facts led him to conclude that the only rational inference open to him was that the appellant was aware at the time of the s 19 examination of an account called Bohemia at Eyres Reed, namely:
(a)the fact that the appellant signed a cheque on 2 May 1997; and
(b)the fact that the appellant met and had discussions with one Sharbanee at the eCucina Restaurant in the period between 30 July 1997 and 18 August 1997.
As I have explained above, the enquiry should have been about whether the appellant knew about the Bohemia Pty Ltd account before 22 July 1997, not whether he was aware on 18 August 1997. I will assume that the ground is directed to that issue.
The appellant's contention was that the cheque drawn by the appellant on 2 May 1997 did not establish that he knew where the moneys deposited into the account had come from. It was possible that the moneys had come from the Todd Partners account or from the Eyres Reed account.
I agree that the learned Magistrate erred in relying on the evidence about the signing of the cheque to draw an inference that the appellant was aware before 22 July 1997 of the trading on the Bohemia Pty Ltd account at Eyres Reed. This is because there was no evidence that the appellant knew the cheque had come from Eyres Reed rather than from Todd Partners. His Worship erred when he speculated that the appellant must have questioned the process leading up to the deposit of the funds.
As to the eCucina meeting, it is necessary for me to set out the evidence Mr Sharbanee gave in relation to this. In evidence‑in‑chief, he said at AB81:
"Now after you were ‑ ‑ after you became aware of the Australian Securities Commission investigation, did you at that point have any discussion with Mr Gelavis?‑‑‑After I became aware of the Australian Securities investigation into what?
Into the trading in Stanley Mining shares?---After I became aware, did I have discussions with Mr Gelavis?
Yes? --- I recall vaguely one meeting.
Right. Whereabouts did this meeting take place?---Actually, I recall vaguely two meetings. The first one would have been at ‑ ‑ probably at Ecucina, which is a coffee shop in Central Park.
Mm hm?---And heading - - I think we then took the meeting, or we went from there to the Rosmunde Court house - - Rosmunde Street house.
Right. So this was the same day?---I believe so.
Okay. Now, was anything said about the Australian Securities Commission investigation at that particular time?---Anything said? Yes, there was.
MR HALL: By whom?---My recollection was there was myself, Mr Gelavis and Mr Quomo (sic) and all three of us discussed it.
Right. Do you remember what Mr Gelavis said about the ASC investigation?- - -In terms of what?
In terms of anything? What did he say?---Along the lines of 'Damian's done the trading. Why should I go to the inquiry?'
Anything else?---Not that I can recall.
And where was this said? At Ecucina or Rosmunde Court?---Can't recall.
Now, did you know at any point in time as to whether Mr Gelavis was to be spoken to by the Australian Securities Commission?---Did he know he was to be spoken to? Yes, I did.
Right. How did you become aware of that?---I can't recall how I became aware.
Was that ever the subject of a discussion between you and Mr Gelavis?---It would have been discussed at that meeting with myself, Mr Gelavis and Mr Quomo (sic) on that date which - - which could have fallen - - as I recall, I think it was between two investigations. I think they got called once and then they got called a second time.
'they'? Who are you meaning by 'they'?---Mr Quomo (sic) and Mr Gelavis.
Right. Okay. So you think it was after the first time, before the second time?---I believe so.
Right. What is the cause of your belief? Was something said in that regard?---I can't recall definitely.
And was there any discussion about what was going to be said on the second occasion?---I can't recall a definite discussion, but I became aware that George was not going to - - around the time of the second sitting, that he was not going to say he placed the orders.
Right. How did you become aware of that?---I can't recall how I became aware.
All right. Did you ever have any discussion with George Gelavis in that regard about what his position was going to be if asked by the ASC?---I - - to the best of my knowledge he - - he believed - - or his advice was that if Damian was found guilty of insider trading, or if there was insider trading on Stanley Mining, that if - - it was a very serious allegation and he should take it seriously and that things would escalate and he should not be saying that he did the trading, and furthermore that if Damian traded on the account, with his knowledge, then he would be liable for the insider trading as well, even though it was Damian who placed the orders.
MR HALL: You said that this was in the context that this was advice that he'd been given?---I believe so.
Is that what he told you?---I can't recall whether he told me directly or it was words to the effect, or Scott Quomo (sic) told me, or the three of us discussed it in general, but it was words to those (sic) effect."
In cross‑examination at AB97, the following answers were given:
"Okay. Now, you've also given evidence in relation to a conversation which I think we'll refer to as the Ecucina conversation or a meeting that took place at a particular period of time. That was, as I understand your evidence, after you understood that Mr Gelavis had been contacted by the ASIC. Is that correct?---Yes.
All right. And there was a conversation, you say - - or this was the meeting that commenced at the Ecucina café and then went on to Rosmunde Court, and that was a meeting attended by both yourself, Mr Gelavis and Mr Quomo (sic)?---That's correct.
Perhaps a little grand to refer to it as a meeting, in fact, isn't it? It was simply a gathering. There was no specific purpose for the meeting, was there?---Not that I can recall.
All right. And you gave evidence this morning that you can't recall a specific discussion, but during the course of it you say you became aware that Mr Gelavis was going to say at the second hearing that he had not placed the orders. Do you recall that as being your evidence?---No. If I said that, that's probably been worded incorrectly. I didn't know what he was going to say at any hearing.
Yes?---I knew that he was incredibly uneasy about the position.
Yes, quite. Well, I put it to you that in that conversation, Mr Gelavis - - at that time, Mr Gelavis in fact stated to you or stated in your presence that he had not placed the orders and you knew that to be true anyway, didn't you, because you knew that Mr Conboy had in fact placed those orders? Your answer was 'Yes' to that, wasn't it?---Well, yes to the fact that Mr Conboy placed to the orders.
Yes?---But I have no recollection of Mr Gelavis saying to me that he didn't place the orders and reiterated that fact.
I see. So can I perhaps put it this way, and again, no one's going to criticise you for this?---Sure.
MR DONALDSON: It is that your recollection of this meeting, which after all is what, 4 years ago - -?---Mm.
- - is vague, at best?---Vague at best, yes."
He was then cross‑examined about the fact that he had given three signed statements in relation to the subject of these enquiries, and that he had only in recent times recalled the eCucina meeting, and the cross‑examination of Mr Sharbanee concluded with the following exchange at AB102:
"MR DONALDSON: No. So your recollection of the Ecucina meeting and what matters were discussed and not discussed is vague in the extreme other than that Mr Gelavis had a - - you know, was concerned about the allegations that were being made?---Correct.
And that's the best, really, that can be said about your recollection, your recent recollection of that meeting of 4 years ago?---That would be right."
I agree with the appellant that this evidence affords no evidence that he knew of the trading on the Bohemia account before 22 July 1997. This ground succeeds.

Disposition of the Appeal

I have concluded that his Worship erred as contended in ground 3:
(a)in drawing an inference that the appellant was aware about the Bohemia Pty Ltd account before 22 July 1997 because he signed the NAB cheque on 2 May 1997; and
(b)in concluding that the eCucina conversation led to the inference that the appellant knew of the trading on the Bohemia Pty Ltd account before 22 July 1997.
I will also assume that his Worship erred by asking himself the wrong question, and conclude that ground 5 should succeed.
This is an appeal by way of rehearing. See Canale v Bayens [2001] WASCA 383. Under s 199(1)(b) of the Justices Act 1902, I may dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant if I consider that no substantial miscarriage of justice has occurred.

Has There Been a Miscarriage of Justice?

In deciding whether or not there has been a substantial miscarriage of justice, it is not for me to ask whether there is evidence to support the conviction. It is necessary for me to make my own assessment of the evidence for the purpose of determining what a reasonable Magistrate would have made of the relevant evidence. The question is one of fact, which I must decide by making my own independent assessment of the evidence against the appellant. See M v The Queen (1994) 181 CLR 487 at 492; Chidiac v The Queen (1991) 171 CLR 432 per McHugh J at 463; and De Gruchy v The Queen [2002] HCA 33.
In order to draw an inference of guilt, ie that he did have such knowledge before that date, I must be satisfied beyond a reasonable doubt of the primary facts from which the inference of guilt is to be drawn: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 536. The primary facts in this case have all been found, and the issue is whether it can be inferred from all of the primary facts that the appellant did have knowledge about the Bohemia Pty Ltd account at Eyres Reed before he was contacted by Ms Brennand on 22 July 1997. The inference is to be drawn in the light of the whole evidence, and the inference of guilt can be drawn from a combination of facts, none of which viewed alone would support that inference: Chamberlain's case (supra) at 536. An inference of guilt must be the only rational inference which is reasonably open upon the whole body of primary facts: Chamberlain at 599 and 536; Shepherd v The Queen (1990) 170 CLR 573 at 578.
In my opinion, disregarding the evidence about the cheque and disregarding the eCucina meeting, this was a strong prosecution case. My own assessment of the evidence leads me to the conclusion that a reasonable Magistrate would have decided beyond reasonable doubt that the appellant was guilty of the charge.
The appellant admitted that he opened the account at Eyres Reed which was in the name of Bohemia Pty Ltd and that he traded on it in 1994. He also admitted that he opened an account at Todd Partners in the name of Bohemia Pty Ltd before changing the name of that account shortly after to Bohemia Food Distributors Pty Ltd. His claim that he would only use the name of his family company, Bohemia Food Distributors Pty Ltd, is therefore not supported by the evidence. As the Magistrate found, the appellant was not misled into thinking the account under discussion was a new one opened by Mr Conboy in 1996 by the fact that the Statement of Transaction he was shown referred to transactions from 1996 onwards. The appellant admitted in his evidence that Mr Conboy did not, in the conversations between 22 July 1997 and 30 July 1997, say anything to suggest it was a new account.
The answers to the questions that he gave on 30 July 1997 showed that he had knowledge of the existence of the account and its operation in April 1997; in particular, that he knew that there had been no trading in Stanley Mining shares on the relevant account before 3 April 1997; that as a result of the trades, Bohemia Pty Ltd had no more Stanley Mining shares; and that Mr Sharbanee was the client adviser who was involved in the trades. This was all knowledge he displayed when he was interviewed on 30 July 1997. The appellant submitted that he gained this knowledge after he was contacted by Ms Brennand on 22 July 1997. The appellant gave evidence that after Ms Brennand had made telephone contact with him on 22 July 1997, he spoke to Mr Conboy and Scott Cuomo.
The appellant was questioned before the Magistrate about what information he obtained from those people. After offering differing accounts in cross‑examination about how much information he had been given by them between 22 July 1997 and 30 July 1997, he was pressed on how he gained his knowledge in relation to when the Stanley Mining shares were first purchased and how many were left. The relevant passages of transcript are as follows (see AB603):
"Now, at point 22 it says, 'Had you traded in Stanley shares prior to 3 April 1997?' and the answer that you gave was, 'No.' How did you know that?---How did I know?
How did you know there hadn't been any trading in Stanley shares on this account prior to the 3rd of April 1997?---Again, I don't know whether that had been fed to me after Scott's interview or what the story was.
Well, it would be unlikely that you would have remembered, surely, an exact date like that?---3 April 1997?
Mm?---Well, I don't know. Like I said, you know, I'm not sure whether Scott spoke to me after his interview, but I'm quite sure that he did. I can't be certain. So I would imagine he would have briefed me on exactly what I was going into.
And the second dot point is, 'How many Stanley shares do you hold now, if any?' and you answered, 'None.' How did you know that? How did you know that there were no more Stanley shares held on this account?---Again, I don't remember the specific question, but I would assume that may have been something that Damien told me. But, look, I'm really speculating."
The questioning about Mr Sharbanee's involvement as client adviser was the subject of the following cross‑examination (at AB599):
"Well, why did you conclude that Paul Shivani (sic) must be the client adviser?---Like I said, I don't remember the specific question, so I can't remember if Damien fed me that answer. I imagine he would have."
Those answers show that the appellant was not prepared to testify that he gained knowledge on these points from Mr Conboy or Mr Cuomo between 22 July 1997 and 30 July 1997. Saying that he "imagined" he was "briefed" was not evidence that he was briefed. Nor was his evidence that he was "speculating" any evidence of what he was told by Mr Conboy. Finally, his statement that he "imagined" he would have been "fed" information by Mr Conboy about Mr Sharbanee being the client adviser, is not evidence that he was "fed" the information. That being so, then the inference is that he knew the details before 22 July 1997.
The fact that the appellant signed the change of address form sometime before 16 April 1997 allows the inference to be drawn that he had knowledge of the Bohemia Pty Ltd account before the ASC investigators contacted him on 22 July 1997. In my view, that evidence alone is enough to convict him, but in combination with the other evidence, it leads overwhelmingly to an inference that he knew about the account before 22 July 1997. Counsel for the appellant suggested in oral submissions that two inferences were open concerning the signing of the change of address form. He agreed that one inference was that the appellant knew about the account. However, he submitted that another inference was that he signed it but had forgotten that he had done so. At the conclusion of the oral submissions, I gave leave for written submissions to be made supplementing the oral submissions. In the written submissions, counsel for the appellant has submitted that there were two other inferences equally open on the primary facts, namely that when the appellant signed the form, the appellant did not appreciate it was for an Eyres Reed account, or that when he signed the form, the appellant paid no regard to it and did not appreciate what it was.
I disagree. In my view, the only inference reasonably open was that in signing the change of address form, the appellant did so knowing full well that there was a Bohemia Pty Ltd account. In my view, no reasonable magistrate could have inferred that the appellant did not appreciate that it was an Eyres Reed document, or that he paid no regard to it, or that he had simply forgotten about it. In my view, those suggested inferences were not reasonably open because of the appellant's elaborate denial that the signature on the change of address form was his. As the evidence quoted above indicates, the appellant warmed to the task of showing that the signature on the document was not his. A review of all his evidence leads to only one conclusion, namely, that he denied signing the change of address form. I reached that conclusion notwithstanding the detailed written submissions from the appellant pointing to the evidence of the ASC handwriting expert, who offered the opinion that the signature on the change of address form was written with a great deal of speed. Nor is my conclusion altered by the appellant's written submission that the words "Eyres Reed" were "not prominent" on the form and that they were "totally overwhelmed" by the large "urgent" over stamp. Similarly, my conclusion is not altered by the appellant's written submissions hypothesising that the appellant had forgotten about signing the change of address form. As I have already said, the overall effect of the appellant's testimony was to mount an elaborate denial that the document was signed by him. This denial was supported by a handwriting expert called by the appellant offering that opinion and whose opinion was not accepted by his Worship.
In my opinion, taking into account all of the primary facts, the only rational inference a reasonable magistrate could draw, would be that the appellant did know about the Bohemia Pty Ltd account at Eyres Reed (on which the Stanley Mining trades took place) before he was contacted by the ASC on 22 July 1997.
In my opinion, it is clear beyond a reasonable doubt that the answer the appellant gave to the question he was asked, and which is referred to in the particulars to the charge, was false. It was false in a material particular. The appeal should be dismissed.