COUNSEL: D F Jackson QC/M Wigney (Appellant) T Game SC/ D Hammerschlag (Crown)
SOLICITORS: Phillips Fox (Appellant) Commonwealth Director of Public Prosecutions (Crown)
CATCHWORDS: CRIMINAL LAW - summing up - adequacy and fairness CRIMINAL LAW - non-consensual verdict EVIDENCE - handwriting opinion evidence - Evidence Act 1995, ss55 and 56 EVIDENCE - hearsay - "intended" representation, Evidence Act 1995, s59 CRIMINAL LAW - direction given when accused does not give evidence - "Weissensteiner direction" - Evidence Act 1995, s20
DECISION: 1 Appeal allowed; 2 Convictions quashed; 3 There be a new trial on all counts; 4 Crown appeal dismissed.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
60508/99 60600/99
SPIGELMAN CJ STUDDERT J DOWD J
Friday 1 December 2000
REGINA v Simon Gautier HANNES
The Appellant was convicted of one charge of insider trading under s1002G(2) and s1311 of the Corporations Law and two charges under s31(1) of the Financial Transaction Reports Act 1988 (Cth). The prosecution arose from circumstances in which a person who identified himself as “M. Booth” instructed Ord Minnett Brokers to acquire options to purchase shares in TNT Limited with a strike price of $2 maturing in November 1996. After these options were purchased an announcement was made that TNT would be taken-over at a price of $2.45 per share. This announcement resulted in a substantial increase in the price of the options which resulted in the contracts bought in the name of “M. Booth” returning a profit of over $2 million.
The Appellant was an Executive Director of Macquarie Corporate Finance, a division of Macquarie Bank Limited which for some time had advised TNT. The key issues in the insider trading charge were whether or not the Appellant had access to and made use of information obtained at Macquarie Corporate Finance with respect to the prospect of a take-over of TNT and whether he had purchased the TNT options in the name of “M. Booth”. The central issue in the Financial Transaction Reports Act charges concerned the circumstances in which the Appellant came to withdraw cash from his personal account, and the circumstances in which bank cheques were acquired and deposited into the account from which the purchase of the options was funded.
Held Summing Up - Generally (Per Spigelman CJ, Studdert and Dowd JJ agreeing)
Discussion of appropriate approach to analysis of summing up on appeal. Jones v Dunkel (1958-1959) 101 CLR 298, R v Holden
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Hannes [2000] NSWCCA 503
Case
[2000] NSWCCA 503
Decision Date
CaseChat Overview and Summary
In the case of R v Hannes, the appellant was on trial for various criminal charges related to fraudulent option transactions. The trial judge, his Honour Judge Derrett, presided over the matter in the Supreme Court of Queensland. The appellant contested the admissibility of certain evidence, specifically a document containing handwritten entries, which the Crown sought to introduce as evidence of the appellant's involvement in the fraudulent activities. The appellant argued that the document was inadmissible hearsay and did not meet the relevance test under the Evidence Act 1995 (Qld).
The court was required to determine whether the document was admissible under the Evidence Act 1995 (Qld). The key issues were whether the document was relevant under s 55 of the Act, and whether it fell within the hearsay exception under s 59 of the Act. The appellant contended that the document was not relevant as it only demonstrated that the appellant had made the statements and did not provide any probative value regarding the facts in issue. Additionally, the appellant argued that the document constituted inadmissible hearsay as it did not fall within the hearsay exception for "intended" representation under s 59 of the Act.
The court held that the document was relevant as it provided evidence of the existence of a syndicate partner named "Mark" and contradicted a central assertion in the Crown case that the appellant and Mark Booth were one and the same person. The court found that the document could rationally affect the assessment of the probability of the existence of a fact in issue, specifically the existence of a syndicate partner and the identity of the appellant. The court also held that the document fell within the hearsay exception for "intended" representation under s 59 of the Act, as the document was an "intended" representation of the appellant's state of mind at the time the document was written. The court found that the document was admissible as it was relevant and fell within the hearsay exception.
The court ordered that the document be admitted as evidence in the trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In order to become admissible, it was necessary that the evidence satisfy the relevance test in s 55 of the Evidence Act and also that it avoided exclusion under the hearsay rule. Section 55 defines relevant evidence:“55. (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.(2) In particular, evidence is not taken to be irrelevant only because it relates only to:(a) the credibility of a witness; or(b) the admissibility of other evidence; or(c) a failure to adduce evidence.” The appellant has submitted that the document was relevant as providing evidence as to the existence of a syndicate partner “Mark” and to contradict a central assertion in the Crown case that the appellant and Mark Booth were one and the same person. Do the representations contained in the document as to the existence of Mark and as to his activities meet the relevance test found in s 55(1), bearing in mind that the appellant placed the writing in the pad at a time when, as the content of the document and other evidence in the case makes clear, the appellant was aware of the ASC investigations into the option transactions? Had the document been placed before the jury, it would have afforded evidence as to what the appellant had written but could it rationally have been regarded as probative of the assertions made? In Papakosmas v The Queen (1999) 196 CLR 297, a case concerning the admissibility of complaint evidence as to a sexual assault, Gaudron and Kirby JJ said at para 52:“52 What does emerge from the common law as a reflection of elementary logic is that, without more, evidence that a particular statement was made is probative only of its making and its contents and those inferences which, in the circumstances, may be drawn. On the other hand, it also emerges from the common law, and, again, as a matter of logic, that the circumstances in which a statement is made may sometimes render it probative of the facts asserted…” And then paras 56-58:“56 The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved. Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true. Similarly, a statement that is closely contemporaneous with the fact in issue and is contrary to what would ordinarily be expected if that fact were true rationally bears on the improbability of its having occurred. 57 The question whether, in the particular circumstances, a statement that is not closely contemporaneous (for example, a subsequent statement to police) is probative of the facts asserted in it can logically only be answered in a case in which those circumstances arise. However, there must be some connecting circumstances because, otherwise, evidence that a particular statement was made is probative only of its making and its contents and such inferences as, in the circumstances, may be properly drawn.58 As a matter of logic, the statement is not, as such, proof of the facts asserted. People do make false statements of fact and false accusations. Nothing in the Act requires the admission of a statement unless, in the terms of s 55, it could rationally affect, directly or indirectly, the assessment of the probability of the facts asserted. There has to be more than the fact that the statement is made to produce the conclusion required by s 55 as the price of admissibility. Rationality connotes logical reasoning.”