R v Hannes - [2000] NSWCCA 503

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v HANNES [2000] NSWCCA 503

FILE NUMBER(S):
60600/99
60508/99

HEARING DATE(S): 30 October 2000
31 October 2000

JUDGMENT DATE: 01/12/2000

PARTIES:
Regina
Simon Gautier Hannes

JUDGMENT OF: Spigelman CJ Studdert J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/0562
97/11/0502

LOWER COURT JUDICIAL OFFICER: Backhouse DCJ

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

LEGISLATION CITED:
Corporations Law
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1898 (NSW)
Evidence Act 1995
Financial Transaction Reports Act 1988 (Cth)
Jury Act 1977 (NSW)

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 [1974] 2 NSWLR 548, R v Hong Jus Ten and Ing Chin Ei (Western Australian Court of Criminal Appeal, 6 November 1973, unreported), R v Piazza (1997) 94 ACrimR 459, R v Sorlie (1925) 25 SR (NSW) 532, R v Zorad (1990) 19 NSWLR 91, Stoddard’s Case (1909) 2 CrAppR 217 referred to. ([106]-[110])

Discussion of need for a trial judge to give fair and balanced directions to the jury. Cleland v The Queen (1982) 151 CLR 1, Domican v The Queen (1991-1992) 173 CLR 555, RPS v The Queen (2000) 74 ALJR 449, R v Guerin [1967] 1 NSWR 255 referred to. ([111]-[117], [175])

Appropriate directions on use to which the fact that an accused does not give evidence may be put
(Per Spigelman CJ, Studdert and Dowd JJ agreeing)

Since the trial, the High Court has decided RPS v The Queen supra which confined the circumstances in which a trial judge should direct the jury that it can draw inferences more safely because of the failure of the accused to give evidence pursuant to the earlier High Court decision in Weissensteiner v The Queen (1993) 178 CLR 217. ([124])

Before a Weissensteiner direction can be given, the prosecution must specify the particular evidence which could be expected to come only from the accused. RPS v The Queen supra considered. This requirement was not satisfied in respect of one of the inferences on which the trial judge commented - that “Hannes was Booth”. ([163]-[164]) The appeal should be upheld with respect to all charges on this basis. ([170]) The appeal from the insider trading conviction should also be upheld by reason of the Weissensteiner direction with respect to knowledge of the take-over. ([167])

It may not be appropriate to give a Weissensteiner direction when an accused faces multiple charges with different elements. However there was no relevant distinction between the charges in this case. R v OGD (1997) 45 NSWLR 744 distinguished. ([131]-[135])

Trial Judge’s Directions

The trial judge’s direction that it was irrelevant if “another person was involved” created a risk of confusion on the part of the jury. ([172]-[216])

The appeal with respect to other directions of the trial judge concerning elements of the insider trading charge, not upheld. ([217]-[299])

Grounds of Appeal concerning Evidence

Grounds of appeal based on the rejection of a draft broker’s report, the admission of conversations and the summarising of expert evidence, rejected. ([300]-[322])

Handwriting Evidence
(Per Dowd J, Spigelman CJ and Studdert J agreeing)

There was evidence before the jury from which it could be inferred that all documents used as control documents for the purposes of the opinion evidence on handwriting were written by the Appellant. ([487]-[502])

(Per Spigelman CJ, Studdert and Dowd JJ agreeing)

The admissibility of a document tendered for the purpose of providing a standard for comparison for handwriting under the Evidence Act is determined by s56(1) which provides that evidence which is relevant is admissible. This approach differs from that previously existing under the common law. ([323]-[328])

Identification Evidence
(Per Dowd J, Spigelman CJ and Studdert J agreeing)

There was no breach of s3ZO(2) of the Crimes Act 1914 (Cth) to enliven the exclusionary provision in s138 of the Evidence Act 1995 as at the time the photoboards were used, the investigators did not have a “suspect”. ([520]-[534])

Admissibility of MFI 95
(Per Spigelman CJ, Dowd J agreeing, Studdert J contra)

The statements in MFI 95 were relevant because the circumstances in which the document was made - that it was a personal rumination and the that it was not retained - mean it is probative of the facts asserted. Papakosmas v The Queen (1999) 196 CLR 297 applied. ([331]-[337])

(Per Spigelman CJ, Dowd J agreeing, and per Studdert J)

The representations in MFI 95 are excluded by the operation of s59 of the Evidence Act. ([338]-[361]), [475]-[478])

(Per Studdert J, Spigelman CJ and Dowd J agreeing)

The document was not admissible under s72 of the Evidence Act because evidence of the Appellant’s intention at the time that document was written was not relevant to a fact in issue. ([479]-[480])

The document was not admissible under s81(2) of the Evidence Act because it did not contain representations that have a link sufficient for the purposes of s81(2) with any admission made by the Appellant. ([481]-[483])

FTRA Counts
(Per Studdert J, Spigelman CJ agreeing with additional reasons and and Dowd J agreeing)

The trial judge’s direction that it was sufficient for the Crown to prove that the Appellant was a party to two or more of the six withdrawal and nine payment transactions particularised, respectively, in the second and third counts, was in error as it failed to alert the jury to the need for unanimity on the two transactions selected. ([421]-[426])

In respect of the second count there was no possibility of a miscarriage of justice because there was no rational basis for distinguishing between the withdrawals particularised. KBT v The Queen (1996-1997) 191 CLR 417 distinguished. ([429]-[436])

In respect of the third count, there was no need, given the other directions that her Honour had given, for a specific direction that the jury had to be unanimous in their finding as to the same transaction. The jury could only find the Appellant was a party to seven of the payments particularised, if they were satisfied beyond reasonable doubt that the Appellant was “Booth”. KBT v The Queen supra distinguished. ([437]-[458], [365])

Non-Consensual Verdict
(Per Dowd J, Spigelman CJ and Studdert J agreeing)

There is no basis for concluding that the jury were pressured by the length of the trial or deliberations, or that the jury’s verdict was other than consensual. ([535]-[548])

Unreasonable Verdict
(Per Spigelman CJ, Studdert and Dowd JJ agreeing)

It was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of all of the offences. The verdict was not unreasonable with the meaning of that phrase in Criminal Appeal Act 1912, s6(1). ([367]-[388])

New Trial or Acquittal
(Per Spigelman CJ, Studdert and Dowd JJ agreeing)

The strength of the Crown case and the public interest involved in the prosecution of this offence are such that the proper order is for a new trial. ([389]-[395])

Orders

Appeal allowed
Convictions quashed.
There be a new trial on all counts.
Crown appeal dismissed.

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
JUDGMENT

SPIGELMAN CJ: This is an appeal from the conviction of the Appellant on 11 August 1999 of one charge of insider trading, under s1002G(2) and s1311 of the Corporations Law, and from his conviction on 6 August 1999 of two charges, under s31(1) of the Financial Transaction Reports Act 1988 (Cth) (the “FTRA”). On 17 September 1999, her Honour Judge Backhouse of the District Court imposed a sentence on the Appellant of two years and two months imprisonment and a fine of $100,000 for the insider trading charge. Her Honour imposed a sentence of four months imprisonment and a fine of $5,000 for each charge under the FTRA. The terms of imprisonment were to be served concurrently. Her Honour fixed a recognisance release period after eighteen months. The Crown has appealed against the alleged inadequacy of the sentences.
The trial was concerned with the circumstances in which a person, who identified himself as “M. Booth”, instructed, on or about 17 September 1996, Ord Minnett brokers to acquire options to purchase shares in TNT Limited, a publicly listed company. The options had a strike price of $2, and matured in November 1996. Pursuant to this order, options were purchased between 18 and 20 September at prices up to 2c per option, until the total amount purchased equalled the amount in a cash management trust in the name “M. Booth”. On 2 October 1996 an announcement was made that TNT would be taken over at a price of $2.45 per share. By reason of this announcement, the price of the November options increased substantially. The profit on the option contracts bought in the name of “M. Booth” was of the order of $2 million.
The Appellant was an executive director of the merchant bank Macquarie Corporate Finance (“MCF”) a division of Macquarie Bank Limited, which had, for some time, been advising TNT.
The key issues on the insider trading charge were whether or not the Appellant had access to and made use of MCF information as an insider with respect to the prospect of a takeover and whether he had purchased the TNT options in the name of “M. Booth”. The central issue on the FTRA charges concerned the circumstances in which the Appellant came to withdraw cash from his account and to acquire bank cheques, which cheques were paid into the account from which the options were acquired.
The three counts in the indictment were as follows:
“… that SIMON GAUTIER HANNES
1 between 17 September 1996 and 20 September 1996 at Sydney in the State of New South Wales, contravened s1002G(2) of the Corporations Law in that he
(a) being possessed of information that was not generally available but which, if it were generally available, a reasonable person would expect it to have a material effect on the price or value of securities of a body corporate, namely $2.00 November 1996 option contracts to buy shares in TNT Limited;
and
(b) knew or ought reasonably to have known that such information was not generally available and that if it were generally available it might have a material effect on the price or value of those securities
purchased securities of TNT Limited namely 5000 $2.00 November 1996 option contracts to buy shares in TNT Limited.
… that SIMON GAUTIER HANNES
2 on 9 September, 1996 at Sydney in the State of New South Wales was a party to two or more non-reportable cash transactions, as defined under the Financial Transaction Reports Act, 1988, and having regard to the manner and form in which those transactions were conducted, it would be reasonable to conclude that he conducted those transactions in that manner and form for the dominant purpose of ensuring that the currency involved in those transactions was transferred in a manner and form that would not give rise to a significant cash transaction as defined under the Financial Transaction Reports Act, 1988.
… that SIMON GAUTIER HANNES
3 on 9 September, 1996 at Sydney in the State of New South Wales, was a party to two or more non-reportable cash transactions, as defined under the Financial Transaction Reports Act, 1988, and having regard to the manner and form in which those transactions were conducted, it would be reasonable to conclude that he conducted those transactions in that manner and form for the dominant purpose of ensuring that the currency involved in those transactions was transferred in a manner and form that would not give rise to a significant cash transaction as defined under the Financial Transaction Reports Act, 1988.”
With respect to the first count the Crown supplied particulars of the Information as follows:
“There was a prospect that shares in TNT would be the subject of a takeover. There was a prospect that the offer would be at a price in excess of $2 per share. The Corporate Advisory Division of Macquarie Corporate Finance (MCF) was advising TNT in connection with that possible takeover and had placed securities in TNT on an embargo list.”
With respect to the second count, the particulars of transactions supplied were, six cash withdrawals all occurring on 9 September 1996, four of which were in the amount of $9,000, one in the amount of $9,900 and one in the amount of $6,000. The withdrawals were made from six different branches in different parts of Sydney. With respect to the third count, the particulars of transactions supplied were, nine bank cheques each acquired for cash on 9 September 1996 from nine different bank branches. Eight of the cheques were in the amount of $9,000 and one for $9,900. Each bank cheque was payable to Perpetual Trustee Co Limited - Ord Minnett Cash Management Trust. The cheques were paid into the account from which the TNT options were funded.
The trial was a long and complex one. It took 36 sitting days up to the time of the trial judge’s summing-up to the jury. The Crown called 45 witnesses (including three expert witnesses) and the defence called two witnesses (one an expert). There were more than 200 exhibits, some voluminous. The closing addresses of the Crown and senior counsel for the Appellant continued over six sitting days. The trial judge’s summing-up proceeded over four days. Further directions were given in response to questions from the jury.
On the eighth day of the jury’s deliberations, a verdict of guilty was returned on the two FTRA counts. The jury then indicated that they had been unable to reach a unanimous verdict on the insider trading count. The trial judge gave the jury a direction of the character identified in R v Black (1993) 179 CLR 44. The jury deliberated for a further two days before returning a verdict of guilty on the insider trading count.
This appeal has been inordinately delayed to the extent that the Appellant has served all but three months of his recognisance release period. This delay is not attributable to the Crown.
Notice of Appeal against conviction was filed on 3 September 1999. The Crown lodged its appeal against sentence on 8 October 1999. Both appeals were listed for mention in this Court on 22 November 1999 and again on 13 December 1999. On these dates the transcript of the summing-up was not available. The matter was stood over until 7 February 2000. The transcript became available on 21 December 1999. On 7 February, the Appellant asked that the matter be adjourned to 10 April 2000. The Appellant engaged new counsel to prepare amended grounds of appeal and to appear. The amended Notice of Appeal was filed with the Court on 22 May 2000, subject to the Appellant’s formal instructions. On 26 May 2000 the appeals were fixed for hearing at a date convenient for senior counsel engaged by the Appellant.
On a number of occasions the Crown expressed concern as to the delay. At the callover on 10 April 2000, senior counsel for the Crown asked the Court to note that the Crown would resist any submission that the Court not order a retrial as a matter of discretion, on the basis that the sentence had been served by the time the appeal was heard.
It can readily be seen that, for a person in Mr Hannes’ position, the conviction itself is of great significance. He has, understandably, proceeded on the basis that he would accept delay in order to permit him to put forward the best possible case, with counsel of his choice. The Crown took appropriate steps to protect its position in the light of the delay so occasioned.
The Statutory Provisions
The insider trading offence was constituted by s1311 of the Corporations Law, which relevantly provides:
“1311(a) A person who:
(a) does an act or thing that the person is forbidden to do by or under a provision of this law;
…
is guilty of an offence by virtue of this subsection …”
The forbidden act was found in s1002G(2), which relevantly provides:
1002G(2) The insider must not (whether as principal or agent):
(a) … purchase … any such securities …”
The references in this paragraph to both “the insider” and to “such securities” relate back to s1002G(1) which is the subsection that identifies the additional elements of the offence by specifying each of the circumstances which, cumulatively, have the consequence that a purchase of securities will constitute a contravention and, accordingly, an offence.
That subsection provides:
“1002G(1)            Subject to this Division, where:
(a)          a person (in this section called the insider) possesses information that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities of a body corporate; and
(b)          the person knows, or ought reasonably to know, that:
(i)           the information is not generally available; and
(ii)          if it were generally available, it might have a material effect on the price or value of those securities …”
Each of the provisions are the subject of further definition.
By s1002A the word “securities” in Div 2A, entitled “Insider trading”, is defined, inter alia, to include:
“(e) an option contract under which a party acquires from another party an option or right, exercisable at or before a specified time, to buy from, or sell to, that other party a number of securities of a kind referred to in paragraph (a), (b), (c) or (d) at a price specified in, or to be determined in accordance with, the contract”.

The definition of “securities” specifies that in relation to a body corporate that word means, inter alia, “shares in the body corporate”.
There was no issue at the trial, or in this Court, that the options contract over shares in TNT were within the section. Issues did however arise with respect to other elements within s1002G(1).
First, “possesses information”. The word “information” is defined inclusively in s1002A(1) to extend to:
(a) “matters of supposition and other matters that were insufficiently definite to warrant being made to the public;
(b) matters relating to the intentions, or the likely intentions, of a person.”
Secondly, “not generally available”. The positive form “generally available” is defined in s1002B(2) in the following terms:
“1002B(2)            Information is generally available if:
(a)          it consists of readily observable matter; or
(b)          without limiting the generality of paragraph (a), both the following subparagraphs apply:
(i)           it has been made known in a manner that would, or would be likely to, bring it to the attention of persons who commonly invest in securities of bodies corporate of a kind whose price or value might be affected by the information; and
(ii)          since it was so made known, a reasonable period for it to be disseminated among such persons has elapsed.”
Furthermore, s1002B(3) adds the following:
“1002B(3)            Information is also generally available if it consists of deductions, conclusions or inferences made or drawn from either or both of the following:
(a)          information referred to in paragraph (2)(a);
(b)          information made known as mentioned in subparagraph (2)(b)(i).”
Thirdly, “material effect”. The standard of what a reasonable person would expect is set out in s1002C:
“1002C For the purposes of this Division and section 1013, a reasonable person would be taken to expect information to have a material effect on the price or value of securities of a body corporate if the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether or not to subscribe for, buy or sell the first-mentioned securities.”
Fourthly, the mental element. The two factors which that person must know, or ought reasonably to know, are set out in s1002G(1)(b)(i) and (ii) as quoted above.
This outline of the statutory scheme establishes the central significance of identified “information” in any proceedings for an offence for contravention of s1002G(2). It is specific information which:
(i)           a person must “possess”.
(ii)          must not be “generally available”.
(iii)         if it were generally available, would have a material effect.
(iv)         the person knows, or ought to know, both that it is not generally available and, if it were, that it might have a material effect.
Accordingly, the particulars of Information supplied by the Crown, as quoted above, were a critical aspect of the Crown case and of the conduct of a fair trial.
The ‘Information’ on which the Crown relied for each of the purposes for which that term is material in s1002G of the Corporations Law, consisted of the cumulative effect of four separate elements: the prospect of a take-over, the price at which the take-over would occur, the fact that MCF was advising TNT in connection with that take-over and, finally, that MCF had placed securities in TNT on an embargo list. All four of these aspects were part of the Crown case.
The Crown did not seek to amend the above particulars at any time. The Appellant did not object to the particulars provided in any respect and did not seek further particularisation. The particulars were before the jury as the “Information” which it had to find existed in the respects for which the concept is used in the section creating the offence.
The relevant provisions of the FTRA are set out in the judgment of Studdert J.
The Crown Case
As quoted above, between 18 and 20 September 1996 Ord Minnett brokers acquired, on behalf of a client, TNT November call options at a strike price of $2. The price of TNT shares at the time of the acquisition of the options was between $1.56 and $1.59. The brokers were acting on behalf of a client known to them as “Booth”. The broker who conducted the transactions, Mr Andrew Staehli of Ord Minnett, never met “Booth”. His communications with a person purporting to be “Booth” had occurred on the telephone and in correspondence. The account in the name of “M. Booth” had been opened on 17 September 1996. The standard form documentation required by Ord Minnett is in that name. The Cash Management Account was given Investment Number B3133.
Funds were placed in the Ord Minnett Cash Management Account between 6 September 1996 and 9 September 1996 by ten bank cheques. Each of the bank cheques had been acquired for cash at the bank branches, in the amounts and on the dates following:

BANK	BRANCH	AMOUNT	DATE
CBA	48 Martin Place	$9,000	6/9/96
CBA	Camperdown	$9,000	9/9/96
ANZ	Camperdown	$9,000	9/9/96
ANZ	Leichhardt	$9,000	9/9/96
NAB	Leichhardt	$9,000	9/9/96
CBA	Leichhardt	$9,900	9/9/96
Westpac	Annandale	$9,000	9/9/96
Westpac	Roseville	$9,000	9/9/96
NAB	Roseville	$9,000	9/9/96
CBA	200 George Street	$9,000	9/9/96

The bank cheque acquired on 6 September 1996 was not provided as a particular of count 3, the FTRA payments charge. The Crown case was that it was on that date that Mr Hannes acquired information about the reporting obligations under that Act.
The Crown called evidence to show that the Appellant had access to the requisite amount of cash on the relevant dates. The Appellant conducted, in his own name, an account at the Commonwealth Bank of Australia, Wynyard branch. On 5 September 1996 the Appellant transferred to that account an amount of $200,000 from an account he controlled at Ord Minnett brokers. On 6 September 1996 three cash withdrawals were made from that account. An amount of $20,000 was withdrawn at the CBA Pitt Street/Martin Place branch; an amount of $10,000 was withdrawn at the CBA Chatswood branch; an amount of $10,000 was withdrawn at the CBA Circular Quay branch.
These three withdrawals on 6 September 1996 were not provided as particulars of Count 2, the FTRA withdrawals charge. As they were reportable transactions, they could not have been particularised. In any event, as noted above, the Crown case was that it was only after that date that Mr Hannes structured the financial transactions to avoid the reporting requirements under that Act.
The six withdrawals which were particularised for the FTRA charge were as follows:

BANK	BRANCH	AMOUNT	DATE
CBA	Neutral Bay	$9,000	9/9/96
CBA	Crows Nest	$9,900	9/9/96
CBA	Liverpool / Castlereagh St	$9,000	9/9/96
CBA	Park / Castlereagh St	$9,000	9/9/96
CBA	Town Hall	$9,000	9/9/96
CBA	Wynyard	$6,000	9/9/96

All of the withdrawals and bank cheque acquisitions were relied on for purposes of the insider trading charge.
There was little dispute either at the trial or in the appeal, with respect to the basic steps taken that led to the acquisition of the TNT call options. The evidence of Vanessa Heperi, a cash manager at Ord Minnett, concerning the opening of an Ord Minnett Cash Management Trust Account B3133 was not challenged. The evidence of Andrew Staehli, a stockbroker with Ord Minnett, who received instructions to acquire the TNT options, with payment from the aforesaid cash management account, was also not challenged in any material respect.
An application form dated 1 September 1996 was used to open the cash management account B3133. The application was in the name of and signed by “M. Booth”, with an address given as “Suite 140, 656 Military Road, Mosman, New South Wales, 2088”. This is a mailbox. It was opened by “Mark Booth” who indicated that he had no identification with him at the time. The fee was paid in cash. The contact phone number and address given was the Intercontinental Hotel. The Crown proved that no-one of that name was a resident of the hotel at any relevant time.
The cash management account was opened with an initial deposit of $9,000. Each of the nine bank cheques referred to above were deposited in this account. The first deposit was the CBA Martin Place bank cheque. It was deposited on 6 September 1996. Under a covering note of 9 September, the other eight bank cheques were deposited on that day.
Ms Heperi said that she received a telephone call on 17 September 1996 from someone who identified himself as “M. Booth” requesting information on the cash management account and specifically the account balance. He said that he wanted to start trading with Ords and did not have an adviser at Ords. She transferred him to the switch and advised that he was a new trader.
Mr Staehli gave evidence that on 17 September 1996 he received a phone call from “Mark Booth” who wanted to trade in options. Arrangements were made for “Booth” to pick up an application from Ord Minnett reception. “Booth” asked for a quote on TNT November $2 options, Mr Staehli quoted between 1-2c and said it was a “fairly risky option to buy”. “Booth” asked Mr Staehli to invest the $90,000 which was in “Booth’s” cash management account in options. “Booth” said he was staying in a hotel and provided the phone numbers 9230 0200 and 955 7070, the former being the number at the Intercontinental Hotel and the latter having one digit less than a Sydney telephone number and not otherwise identified.
On 19 September 1996 Mr Staehli received an envelope with a letter of instructions, an Options Client Agreement, an Application for Individual Account and Sponsorship Agreement. Mr Staehli completed a form document entitled Record of Interview re Opening New Account.
The letter of instructions of 17 September 1996 was signed “M Booth”. It confirmed that Mr Staehli should acquire TNT $2 November 1996 call options at a price of up to 2c per option. He should acquire such options up to the amount standing to the credit of the cash management trust account. The letter also asked if it was possible for the securities to stand in the name of the broker’s nominee company.
The Options Client Agreement Form was set out in the name of “Mark Booth” and signed “M. Booth”. The address given was the mailbox, Suite 146, 56 Military Road, Mosman, 2088.
The Application for Individual Account was also made out in the name of “Mark Booth” at the same address, with a business telephone number of 955 7070 and a private telephone number of 9230 0200, the latter was asterisked with the annotation “Currently staying in hotel. Do not leave private messages at this no.”
The Sponsorship Agreement was also issued in the same name and with the same address, with a signature of “M. Booth” which purported to be witnessed by “Alexi Voltraint”, who purported to give an address of “52 Railway Road, Petersham”.
The Record of Interview re Opening New Account was filled out on the basis of the information supplied in the aforesaid documentation.
Thereafter the following purchases were made:

2,500 contracts at 1.5c on 18 September 1996;
910 contracts at 1.5c on 19 September 1996; and
290 contracts at 2c on 19 September 1996 (recorded as 20 September 1996).

On 20 September 1996 “Booth” advised Mr Staehli by telephone that the purchase had been completed. ”Booth” advised him of a new number 9902 8224. This number was a voicemail account opened on 19 September in the name of “Mark Booth”. The account for the voicemail service was also paid in cash.
The withdrawals and the bank cheques were, respectively, the subject of counts 2 and 3. However, the flow of funds into the account from which the options were purchased, was also of central significance to the insider trading count.
There was no issue that the Appellant withdrew the funds in cash from his own account. The Crown case on count 2, i.e. the FTRA count with respect to six withdrawals, was that the Appellant had become aware of the FTRA obligations when withdrawing the three amounts of $20,000, $10,000 and $10,000 from, respectively, the CBA branches at Pitt Street/Martin Place, Chatswood and Circular Quay. These three withdrawals, together with the subsequent four withdrawals for $9,000, one of $9,900 and one of $6,000 - being withdrawals from the Neutral Bay, Crows Nest, Liverpool/Castlereagh Street, Town Hall and Wynyard branches, all on 9 September - were also relied upon as covert conduct in support of the insider trading charge, being particularly relevant to the element of possession of information and the mental element. Indeed, as noted above, Mr Hannes had transferred funds from an account he controlled at Ord Minnett to his CBA account. The Crown called evidence that by a single transaction, moneys could have been transferred from one Ord Minnett account to another.
The cash was withdrawn in $100 and $50 notes. Four of the nine bank cheques, being all the cheques about which such evidence was available, were purchased with a mixture of $100 and $50 notes.
Each of the cheques was payable to “Perpetual Trustee Co Ltd - Ord Minnett Cash Management Trust”. Those cases which recorded the details of the customer were: CBA, George Street; ANZ Bank, Camperdown; NAB, Leichhardt; Westpac, Annandale; Westpac, Roseville; NAB, Roseville. In each such case the customer was identified as “M. Booth” and the address was given was “Suite 140, 656 Military Road, Mosman 2088”. Two cheques from the Commonwealth branches at Camperdown and Leichhardt did not record any such particulars.
A number of bank tellers gave evidence about the appearance of the person who acquired the bank cheques. Some gave evidence identifying the customer from a photoboard of photographs of persons who attended the relevant branch on the day. Such evidence was also given by persons who attended to the opening of the mailbox and the voicemail account. This is the subject of a separate ground of appeal. There was handwriting evidence about the various application forms. This is also the subject of a separate ground of appeal.
It was, in my opinion, open to the jury to conclude that Mr Hannes had acquired all of the bank cheques and to draw that conclusion based solely on his own admissions during the Record of Interview.
When he was asked during that interview what he had done with the cash withdrawn from his account, he referred to the “general statement” he had earlier made. (AB3780). In that statement (commencing at AB3743) he had said that a syndicate partner:
“… asked for a hundred thousand and he asked if I could get it in cash.” (AB3747)
In a subsequent conversation with that person, Mr Hannes said:
“… he told me that he needed cheques to put in an Ord Minnett cash management account.” (AB3749)
Mr Hannes also said in his record of interview:
“Well he asked me to get cash and then he asked me to get cheques for the cash management trust.” (AB3757)
He also said:
This individual … he had told me that he had - that there was a mail box, there was a mail box, we had a mail box and we were going to have a bank account which was going to be this Ord Minnett bank account. So ultimately I withdrew all this cash and made it out in cheques, as he requested, to this Ord Minnett bank cash management account or whatever it was. So that’s the - reference to all this money being withdrawn and deposited. That’s how I contributed my money.”
The two references to withdrawing “all this cash and made it out in cheques” and to “all this money being withdrawn and deposited” could be accepted by the jury as an admission of two facts:

Mr Hannes obtained all the bank cheques.
He used the name “M. Booth” to do so.

He was asked to identify an ANZ Bank bank cheque application form. Mr Hannes said:
“I may well have when I got the bank cheques for Ord Minnett, right, put it in the name of my sister.” (AB3781)
His sister’s name was Mignon Booth. Notwithstanding the use of the word “may”, this statement could also be accepted by the jury, in a context where he had already referred to a request to obtain cheques up to $100,000, as an admission of two facts:

Mr Hannes obtained all the bank cheques. (“I got the bank cheques for Ord Minnett).
He used the name “M. Booth” to do so.

Immediately after this answer, Mr Hannes continued without a further substantive question:
“A          And not only that, I think they gave me a copy of this and I gave it to Mr X - I gave him the cheques.
Q            That’s the paperwork.
A            I gave him the cheques and I gave him all the junk. He knew that I was investing in the name of my sister.”
These answers reinforce the admission of each of the facts outlined above.
Hannes was then shown the ANZ Camperdown branch cheque for $9,000 and he said:
“Well you ask me to identify a specific cheque. I mean, what I said in my general statement - I don’t recall it, but what I did say is I tracked - I was asked to get cash originally. He then told me he wanted cheques, he needed cheques made out to Perpetual Trustee, Ord Minnett Cash Management Trust and I obtained those cheques. I withdrew that cash and I obtained those cheques and then I gave that to him.” (AB3782)
In a context where a total amount of $100,000 had been mentioned as required in bank cheques, each of the two references in that passage to “I obtained those cheques” is an admission with respect to all nine cheques.
When his attention was drawn to the address “656 Military Road”, Mr Hannes said that that was the address given to him by “Mr X” (AB3783 and AB3785). That address only appeared in the application forms in combination with the name “M. Booth”.
In the course of a question about the NAB Leichhardt branch bank cheque, which like eight of the nine cheques was in the amount of $9,000 (one was for $9,900), Mr Hannes said:
“… I’m not denying that I went and got cheques, right, in these amounts and, as I say, it was to be in the name of my sister, Mignon Booth, I’m not denying that.” (AB3785)
Again this reference to “got cheques … in these amounts”, in the context, is an admission that he obtained all the bank cheques. This is reinforced by the fact that he admitted in a number of instances that the “M. Booth” name “may well be” his own handwriting.
Relevant to the two cases in which no name was set out in the application form; the following question and answer appears at A3286:
“Q Did you write those words or those letters that comprise the word “M. Booth” on these application forms I’ve shown you?
A If they asked me to - in some circumstances I might and some they - I might not have. Because I didn’t - I recall I didn’t write out - I don’t recall filling out all these slips …”
The issue arose again later in the Record of Interview:
“Q Why did you get a series of bank cheques to the value of $9,000 each from different banks.
A What happened was first he initially asked for cash … He then changed his mind and said he wanted bank cheques right? So then I made out all these bank cheques - got all these bank cheques.” (AB3796)
To similar effect Mr Hannes said:
“And then I gave all those things to my partner my - Mr X, when I gave him - well we both needed the address, he knew that I was doing it in my sister’s name; and I gave all those cheques and all the pieces of paper … to this guy.” (AB3804-3805)
In the context of a request for $100,000 - to which Mr Hannes subsequently referred as a request for “roughly a hundred thousand” (AB3800) - each reference to “all these bank cheques” and “all those bank cheques” is a further admission by Mr Hannes that he obtained all nine bank cheques.
This conclusion is further reinforced by the following:
“Q … the residual withdrawals add up to approximately either 81 or 91 thousand dollars. By coincidence, its a similar amount that was lodged at Ord Minnett cash management -
A That’s not a coincidence. That is the money.” (AB3797)

What was lodged at Ord Minnett was nine bank cheques. The admission that his own cash withdrawals were “the money” so lodged is, in the context, an admission that he obtained all of the bank cheques.
It was open to the jury to conclude that there were actual admissions by Mr Hannes that he obtained a number of bank cheques in the name of “M. Booth” and that the admissions constituted an admission that he obtained all nine of the bank cheques that were deposited in the Ord Minnett account. That account had also been opened in the name of “M. Booth” and all transactions on it were conducted by a male person who used that name.
The conduct of the person (or, possibly, on the Appellant’s contention in this appeal) the persons, who acquired the bank cheques to finance the acquisition of the bank cheques - small denominations in a number of different bank branches in different parts of the city - was capable of being accepted by the jury as constituting an attempt to ensure that it would be difficult to connect the transaction by documents and also to ensure that no bank officer had any reason to remember the transaction or the person conducting it. Furthermore, insofar as an obligation to report transactions under the FTRA scheme could provide regulatory authorities with information, there would, a jury could conclude, be no such trail.
The means by which Mr Hannes withdrew the cash and the means by which Mr Hannes (and/or another person) acquired the bank cheques, constituted a significant part of the Crown’s circumstantial case on the insider trading charge. An attempt to make the flow of funds difficult to trace supports the Crown case on a number of elements of the offence, especially the possess information element and the mental element. To give only one example, an attempt at concealment appears to be the only reasonable explanation why one person - “M. Booth” - should, on the one day, attend at the Roseville branches of two banks, NAB and Westpac, to acquire for cash two bank cheques in the same amount payable to the same person.
At 9.00am on 2 October 1996 an announcement was made by the Stock Exchange that a take-over bid had been made for TNT by a Dutch company and the shares rose to $2.25.
By letter of 3 October 1996, signed by “M. Booth”, Mr Staehli was instructed to hold the TNT options until 4 November 1996 and thereafter to begin to sell them for the best price obtainable.
The sale resulted in a sum of $2,039,710, which amount was transferred to Booth’s cash management account between 25 and 28 November 1996.
At no time did Mr Staehli meet “Booth” face to face.
In a letter to Mr Staehli of 3 October 1996, “Booth” referred to a message about investigations into the trade in TNT options. The letter said “I assume this is standard practice here and if my permission is required you have it. Please contact me if more information is required.”
By letter of 4 October 1996, also signed “M. Booth”, the author expressed concern about the continued publicity and the suspicion about insider trading in the options. This letter said:
“This is extremely disturbing, as even airing of such allegations would be professionally damaging to me.”
The author went on to express an intention to cooperate with the authorities and attached a statement of recollection of the events. That statement explained why he invested in those options and stated, in view of the newspaper articles about insider trading, that:
“I had no knowledge whatsoever of a take-over bid of any sort for TNT was in prospect.”
In mid October 1996 a further undated letter signed “M. Booth” was received by Mr Staehli. In that letter the author stated that he wished the investors from whom he acquired the November 1996 $2 call options “not to suffer loss”. Accordingly, he instructed Ord Minnett and the trustee of the cash management fund to pay all of the monies in his cash management account as recommended by the Australian Securities Commission.
The Crown accepted an obligation to establish that Mr Hannes was “Booth” beyond reasonable doubt. Her Honour, as I will set out below, directed the jury in these terms on a number of occasions. This was, from one perspective, a necessary part of the Crown case. A number of acts constituting the actus reus of the offences - the instructions to acquire the securities and the applications for bank cheques - were carried out by a person identifying himself as “Mark Booth” or “M. Booth”.
In certain respects the Crown referred to the identity of Mr Hannes as “Booth” as if it were an intermediate fact, which was an indispensable link in a chain of reasoning towards an inference of guilt in the sense described by Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 579. That may be appropriate with respect to some of the acts performed by “Booth”. In critical respects, as I have noted, the proposition that acts were done by Mr Hannes in the name of “Booth” was not an intermediate fact. In those respects the acts constituted an essential component of the actus reus of the offence.
At the trial, and on the appeal, the Appellant abjured any suggestion that there was a person called “Mark Booth”. The Appellant did state in his Record of Interview, which was before the jury, that he may have invoked the name “Mignon Booth”, his sister’s married name, for whose benefit he intended the investment to be made. Documents were signed, or purported to be issued, in the name of “M. Booth”. Witnesses who had conversations with a person purporting to be “Booth”, recalled the use of the name “Mark”, which was recorded in contemporary documents.
The Appellant’s Case
The Appellant did not give evidence at the trial. Some explanation was given in the form of a Record of Interview between Mr Hannes and two officers of respectively, the Australian Securities Commission and of the Australian Federal Police. Further material was contained in the evidence of Mr Moss, the Managing Director of Macquarie Bank Limited, who recounted a conversation with the Appellant.
The key points that emerged were as follows:

The Appellant had entered into an investment syndicate with another person. Each would put in funds and the monies would be invested in securities (AB276-277; AB3743-3744).
The other member of the syndicate was described as an English friend, whom the Appellant would not name (AB276-277; AB3743). He was “quite sophisticated and quite wealthy” (AB3771).
The arrangements for transactions on the part of the investment syndicate was that the friend would make the investments after consultation with the Appellant (AB3750).
In breach of the obligation to consult, the syndicate partner had made an investment in TNT without the Appellant’s knowledge (AB277; AB3750).
The friend had asked him to obtain about $100,000 in cash and subsequently had asked him to obtain bank cheques for the Ord Minnett Cash Management Trust. (AB3747; AB3749; AB3757).
The friend had no special knowledge with respect to TNT (AB277; AB3750).
When the Appellant indicated that he was upset that he had not been consulted beforehand about the investment, the syndicate partner indicated that he would reverse the transaction (AB3750).
Subsequently when allegations of insider trading became public the Appellant and his syndicate partner agreed that all the monies would be returned (AB3751).
The Appellant indicated that he had “agreed with him that I would not reveal his identity unless it was necessary and I may not adhere to that, but at the moment that’s what I’m going to do” (AB3752).

With respect to the circumstances in which he came to withdraw a number of small amounts from his own account, the Appellant said in his Record of Interview:
“I went to see the - my bank, which is the Commonwealth Bank in Roseville and filled out a withdrawal slip for $100,000 cash …
I took it to the lady at the counter and asked for a cash withdrawal. She laughed and she said they don’t have - they didn’t even have $10,000 on the premises. I learnt something about banking. She said there is no bank in Sydney that would have that - that would give me - that would give me a cash withdrawal of that amount. So I said, ‘What should I do?’” (AB3748)
The Appellant then indicated:
“I think I rang the Wynyard branch and the woman there said, yes, they could get that amount of cash if I gave them something like two weeks notice.
And so I asked her what she recommended I do and she said ‘I suggest you’ll have to go to a whole series of branches to get that amount of money out in cash’ and so that’s basically what I’ve proceeded to do.” (AB3749)
The Crown led evidence in response to this case of the Appellant with respect to the availability of cash. It called the branch manager and three officers of the Roseville branch of the Commonwealth Bank, a supervisor and two tellers. They gave evidence that they did not recall receiving a request on 5 or 6 September 1996 from a customer seeking to withdraw $100,000. The branch manager indicated that any such request would have been directed to him or to the supervisor (who in turn gave evidence that she had no recollection of such a request). The branch manager indicated that if such a request had been made other branches of the bank would have been contacted and arrangements made for the customer to go there to collect cash. One of the bank tellers said that if she had received a request for $100,000 in cash she would have forwarded it to either the manager or the supervisor but would not have advised the customer to go to Wynyard.
The Crown called the manager of the Commonwealth Bank, Wynyard branch, together with the teller supervisor from that branch, the Operations Supervisor and, two Customer Service Operators. The manager indicated that in September 1996 incoming phone calls would go to the area of the office staffed by the Operations Supervisor and the two Customer Service Operators. The manager indicated that he did not recall receiving a request for $100,000 in cash in September 1996. If such a request had been made it would take two days to get the amount depending on what day of the week it was. He indicated that there were no restrictions on the drawing of that amount of cash, but such request would be referred to a supervisor and to him. He indicated that he would not recommend the customer go to several branches to obtain similar amounts. The teller supervisor at Wynyard said she did not receive a phone call with a request for $100,000 in cash. She indicated that she would not suggest to someone to go to other branches and take out smaller amounts. The operations officer and the two customer service operators who occupied the area of the office to which, the manager indicated, an incoming phone call would be diverted, said that they did not recall, and in one case denied, receiving a request from any person for $100,000 in cash.
No explanation was offered by Mr Hannes for obtaining a number of bank cheques from different bank branches. The Record of Interview records:
“Q Why did you not just make out one bank cheque?
A I honestly don’t know, I could not - I don’t know why I did that. Maybe he said - maybe he said get bank cheques, $9,000, I don’t know. Maybe I did if off my own bat, I really - I mean, I’m not sure …” (AB3796)
Grounds of Appeal
The amended grounds of appeal consist of eight numbered grounds. However, almost every ground has numerous paragraphs and sub-paragraphs many of which contain alternative formulations, and alternatives within alternatives, in the respective paragraphs and sub-paragraphs. Without attempting a precise calculation, there are probably in excess of 100 identifiably different grounds of appeal each said to constitute either an error of law or a miscarriage of justice.
The primary thrust of the grounds of appeal is directed to her Honour’s summing-up, to which I will refer below. There are, however, a number of specific additional matters the subject of appeal.
The Appellant asserts that there was a risk of a non-consensual verdict with respect to the insider trading charge. This, it was said, arose when the jury indicated on the eighth day of its deliberations that it had been unable to reach a unanimous verdict on that count and the trial judge then gave a direction. After a further day and a half of deliberation application was made on the Appellant’s behalf to discharge the jury but that was refused.
The Appellant appeals from the decision of the trial judge to reject the tender of certain written impressions, detected by mechanical process, on the document alleged by the Crown to be the Appellant’s notebook, comprising part of MFI 95.
The Appellant also appeals from her Honour’s rejection of a draft report of a stockbroker at Macquarie Equities Limited forwarded to a member of the Macquarie Corporate Finance Project Tennis Team.
The Appellant also challenges the trial judge’s decision to admit into evidence three items of evidence: handwriting opinion evidence; photo boards and identification evidence particularly by two witnesses; and evidence of certain conversations held in the absence of the Appellant.
The Appellant also relied on two grounds - Grounds 7 and 8 - which, in large measure, depended on matters also relied upon as defects in the summing-up. Ground 8 asserts that the trial judge permitted the Crown to present a version of its case which was not presented in the indictment and the particulars as provided. Ground 7 asserts that the conviction was unreasonable or cannot be supported having regard to the evidence, because it was not open to the jury to be satisfied of the Appellant’s guilt beyond reasonable doubt and a reasonable jury must have had a reasonable doubt about the Appellant’s guilt. This is the ground which used to be referred to as the ‘unsafe and unsatisfactory ground’. It is of particular significance on the issue of whether or not the Court should direct a verdict of acquittal or order a new trial.
It is not necessary to set out all the permutations of the separate grounds of appeal, some of them interconnected and others cumulative, directed at alleged defects in the summing-up. The principal matters are the following:
(i)           The giving of a Weissensteiner direction (Ground 4.5).
(ii)          The direction given by her Honour that it was “irrelevant” if “another person was involved” (Ground 4.1).
(iii)         Alleged defects in the directions on the “possess information” element of the insider trading count (Ground 2.1).
(iv)         Alleged defects in the directions on the “not generally available” element of the insider trading count (Count 2.2).
(v)          Alleged defects in the directions on the ‘materiality’ element of the insider trading (Count 2.3).
(vi) Alleged defects in the directions on the two FTRA counts (Ground 3).
(vii)        The direction concerning expert evidence (Ground 4.3).
(viii)       The direction concerning identification evidence, both in terms of the general direction as to its unreliability and her Honour’s response to a question from the jury on this evidence (Grounds 2.2 and 2.4)
(ix)         Failure to adequately direct the jury with respect to the control documents used for purposes of the handwriting opinion evidence (Ground 6.3).
The Appellant also relied on certain general grounds of appeal based, in large measure, on the cumulative effect of specific matters referred to above:
(i)           Inadequate directions concerning the elements of the offences (Ground 1.1(a) and Grounds 2.1.2, 2.2.2 and 2.4(a)).
(ii)          Inadequate explanation of how the law applied to the facts (Ground 1.1(b)).
(iii)         Inadequate directions as to the circumstantial nature of the Crown case, failure to identify the inferences for which the Crown contended and failure to relate those inferences to the elements of the offences (Ground 1.1(c)).
(iv)         Absence of a concise, accurate and understandable analysis of and summary of the evidence and, specifically, of the arguments put for the Appellant (Ground 1.1(d)).
(v)          Lack of balance and a failure to fairly and adequately put the defence case (Ground 1.2).
With respect to the lastmentioned ground, namely, the alleged lack of balance and failure to fairly put the defence case, in addition to a general assertion of that character, this is said to be a defect with respect to a number of matters about which specific complaint is made: “possess information” (Ground 2.1.2(d)); “not generally available” (Ground 2.2.2(d)); ‘materiality’ - particularly the expert evidence (Ground 2.3.2); and the FTRA counts (Ground 3.3(b)).
It has long been established that it is not appropriate to subject a summing-up to an excessively fine analysis. In particular, it is not appropriate to do so without reference to the context of the trial, including the detailed submissions that have been made by the Crown and the representative of the accused immediately before the summing-up. As will be seen, some of the grounds of appeal and the detailed written submissions trespass on these principles.
As Lord Alverstone CJ said in Stoddart’s case (1909) 2 CrAppR 217 at 246 said:
“Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice.”
This passage was referred to with approval by Street CJ in R v Sorlie (1925) 25 SR (NSW) 532 at 539 where his Honour said:
“The practice of subjecting a summing up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged. Such a practice does not in my opinion assist in the proper administration of justice, and this Court was not called into existence to wrestle with exercises in mental ingenuity of that kind. It exists for the purpose of rectifying injustice where there has been a miscarriage of justice, and it is important to bear in mind that the Legislature has expressly provided that, notwithstanding that it may be of opinion that the points raised on appeal might be decided in the appellant’s favour, it may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
See also R v Casey (1926) 26 SR (NSW) 189 at 193.
The observations of Windeyer J in Jones v Dunkel (1958-1959) 101 CLR 298 at 314 are particularly apt:
“It has often been said that to examine a summing-up, sentence by sentence, in search for a fault, is not the right way to see whether the judge put the case to the jury fairly and adequately. So much depends upon what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much, too, depends upon the judge’s view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent to redress the balance. On top of all this, the summing-up has to be given promptly at the conclusion of the trial, without the opportunity for careful composition which a reserved judgment may get.”
A number of authorities are collected in a joint judgment of Stable and W Campbell JJ in the Queensland Court of Criminal Appeal in R v Ives [1973] QdR 128 at 133-135. Furthermore, the principles are restated in the joint judgment of the Western Australian Court of Criminal Appeal in R v Hong Jus Ten and Eng Chin Ei an unreported judgment of 6 November 1973 (the relevant extract of which is set out in full in Connell v The Queen (No 6) (1992) 12 WAR 133 at 252-253) where their Honours said:
“… the touchstone for the judgment of a Court of Criminal Appeal must reside in the answer to the question whether or not there has been a miscarriage of justice, and this question obviously must be answered by considering what was said, or, as complained of here, what was not said, in the context of the particular facts of the particular case under review. The question cannot be answered by a ‘minute and textual criticism’ of the summing up or without regard to the addresses made by each counsel to the jury which preceded it. … The cases reveal a uniform approach. In the present case the judge’s summing-up followed full, and if we may say so, competent addresses by each counsel in the course of which all the evidence thought to be relevant on each side was canvassed. In this context having regard to the fact that the trial lasted for 13 days it would seem to us to be quite unreal to submit the summing up to a minute examination for the purpose of showing that certain evidence was not adverted to, or that the significance of certain evidence was not, or the lack of it was not, drawn to the jury’s attention. As we have already said, the end question as it arises under this ground was whether there has been a miscarriage of justice.”

Although these authorities indicate the general approach, nevertheless the summing-up, in its context, must give a fair and balanced set of directions to the jury. Specifically, the jury must be fairly directed to the matters raised in defence. As Gibbs CJ said in Cleland v The Queen (1982) 151 CLR 1 at 10:
“It is clear in a principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence.”
Furthermore, a six judge joint judgment of the High Court said in Domican v The Queen (1991-1992) 173 CLR 555 at 560-561:
“In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (NSW), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarise ‘the evidence given in a trial’ if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it ‘is hardly necessary to say that as a reason for granting a new trial, after a conviction in criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities’. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine a case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.”
More recently, a four judge joint judgment of the High Court said in RPS v The Queen (2000) 74 ALJR 449 at [41]-[42]:
“[41] … The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
[42] But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.”
At the time of the trial s405AA of the Crimes Act 1900 provided:
“405AA(1) A Judge of the Supreme Court or District Court need not summarise, at the end of a criminal trial before a jury, the evidence given in the trial if the Judge is of the opinion that, in all the circumstances of the trial, a summary is not necessary.”
This section has now been re-enacted with slightly different wording as s99(1) of the Criminal Procedure Act 1986.
Before her Honour, the parties agreed that this was an appropriate case in which the whole of the evidence did not need to be summarised. Nevertheless, her Honour did refer to the evidence at different stages of her summing-up. First, when she outlined the particular elements of the offence, she referred to some of the evidence. Secondly, she made reference to some of the evidence in the context of summarising the Crown case and submissions. Thirdly, she made reference to the evidence relied upon by the Appellant in the course of summarising the submissions of Mr Robberds, who appeared for the Appellant at the trial.
The requirements of a summing-up in this respect were stated by this Court, referring to a long line of earlier authority, in R v Zorad (1990) 19 NSWLR 91 at 105:
“A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence. … This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witnesses before turning to the next witness and so on. The idea of a summing-up is to present to the jury the issues of fact which they have to determine.”
This approach continues to apply after the adoption of s405AA(1). As Hunt CJ at CL said in R v Piazza (1997) 94 ACrimR 459 at 459-460:
“The section was inserted in the Crimes Act late in 1990, by Act 74 of that year, following repeated criticisms by this Court of trial judges who apparently believe that they were obliged to read out to the jury the evidence which had been given chronologically, starting with the first witness and going through the evidence in chief, cross-examination and then the re-examination of each witness before turning to the next witness and so on, and who also apparently believe that by doing so they had presented to the jury the issues of fact which they had to determine.
Subsection (1) of s405AA relieve trial judges of any such perceived obligation to summarise all of the evidence. In truth, there never was such an obligation. The obligation has always been, and remains, that to which I have already referred, to present to the jury the issues of fact which they have to determine, and to do so with such reference to the facts of the case as is necessary to assist them in that task."
The Weissensteiner Direction
Her Honour gave the jury directions as to the use to which they could put the fact that the Appellant did not give evidence.
Her Honour commenced this part of her directions by referring to the fact that the record of interview with the Appellant was in evidence and, although it had not been tested by cross-examination and was not sworn evidence, it was evidence which they were obliged to take into account.
Before she gave the Weissensteiner direction, her Honour directed the jury expressly that there may be reasons unknown to them why the accused does remain silent, even if he would otherwise be in a position to contradict or explain the evidence (AB2221). At the commencement and at the conclusion of the direction, her Honour emphasised (see AB2222 and AB2224) that an accused person is presumed to be innocent; that the burden is always on the Crown to prove the charges beyond reasonable doubt; that an accused is entitled to remain silent and that the jury cannot draw an inference of guilt from the accused’s silence.
Her Honour’s direction referred to the fact that the Crown had presented a body of circumstantial evidence, which she had earlier identified. Her Honour stated that there were only three respects in which the accused’s silence could be taken into account, being three inferences which the Crown asked the jury to draw: first, that there was no syndicate partner, secondly, that Mr Hannes was “M. Booth” and thirdly, that Mr Hannes knew of the prospective take-over. There is a substantial overlap between the first and second of these matters. It was the second, i.e. that “Hannes is Booth”, that the Crown expressly accepted an obligation to establish beyond reasonable doubt.
With respect to these three matters, her Honour set out in summary form the circumstantial evidence said by the Crown to entitle the jury to draw each inference and then said at AB2223-2224:
“The prosecution says that the evidence is in itself sufficient to draw an inference of guilt because there is no other rational explanation consistent with innocence, it demonstrates that the accused has personal knowledge of the events in question and suggests that only the accused and nobody else can provide an innocent explanation.
If you were to accept what I have just said to you you may take the accused’s silence into account, for the sole purpose of drawing inferences otherwise available on the prosecution case, more safely. The operative words Members of the Jury are those last words ‘more safely’. I repeat, if you accept what I have just told you, you may take the accused’s silence into account for the sole purpose of drawing inferences. The critical thing about that is it is the sole purpose of drawing inferences, is - you cannot and I remind you you cannot draw any inference of guilt, because the accused has remained silent.
I repeat that the accused is presumed innocent and is entitled to remain silent. The burden of proving the charges beyond reasonable doubt remains at all time with the prosecution. As I said, you could only take into account the accused’s silence for the sole purpose of drawing inferences which the Crown would - the Crown says are otherwise available on the prosecution case, more safely, but I re-emphasise to you Members of the Jury, that you cannot draw any inference of guilt because of his remaining silent.”
Her Honour had in mind the provisions of s20(2) of the Evidence Act 1995 which provides:
“20(2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defender was, or believed that he or she was, guilty of the offence concerned.”
Her Honour also had in mind and, indeed, was bound by, the authority of the High Court in Weissensteiner v The Queen (1993) 178 CLR 217, which authorised a direction of this character. However, subsequent to her Honour’s direction in this case, the High Court handed down judgment in RPS v The Queen supra which restricts the circumstances in which a direction of this character will be appropriate.
There are difficulties in reconciling, in all respects, the reasoning and decisions in Weissensteiner and RPS. The High Court has heard argument in two cases which raise these difficulties. Nevertheless, at this stage, this Court must proceed on the basis that it is bound by both Weissensteiner and RPS.
The majority joint judgment in RPS acknowledges that there are circumstances in which a direction of this character is appropriate in a criminal trial, albeit the circumstances are to be more narrowly confined than may have been the practice in this State prior to RPS.
In a joint judgment, Gaudron ACJ, Gummow, Kirby and Hayne JJ said at [27]:
“… it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion that the prosecution seeks. As was said in Weissensteiner v The Queen [(1993) 178 CLR 217 at 227-228 per Mason CJ, Deane and Dawson JJ]:
‘[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.’ (Italics added.)”
Their Honours also distinguished Weissensteiner in the following way at [35]:
“The present case (and cases of a similar kind) must be contrasted with that considered by this Court in Weissensteiner. There the prosecution case was that the accused’s guilt was to be inferred from circumstances, particularly the unexplained disappearance of those whom it was alleged he had murdered, and his possession of the boat and equipment which they owned and from which they had disappeared whilst on a voyage with the accused. The majority of the Court held that the trial judge in that case had made no error by directing the jury that they could more safely draw the inferences which the prosecution alleged should be drawn ‘when the accused elects not to give evidence of relevant facts which could be easily perceived to be in his knowledge’ [178 CLR 224] but as Mason CJ, Deane and Dawson JJ pointed out in Weissensteiner [at 228]:
‘Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiar within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution’s case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and the jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.’
And as the other members of the majority in Weissensteiner [at 237-238] (Brennan and Toohey JJ) said:
‘The facts from which an inference of guilt may be drawn are correctly identified [in the charge to the jury] as facts which the prosecution is able to prove. The use to which the appellant’s failure to give evidence may be put is correctly restricted to a strengthening of an inference of guilt from the facts proved. And the jury is told not to use the appellant’s failure to give evidence unless relevant facts ‘can be easily perceived to be in his knowledge’. This additional requirement which follows a decision of the Court of Criminal Appeal of Queensland in R v Winfield, ensures that the drawing of an inference of guilt will not be assisted by an accused’s failure to give evidence unless it is reasonable to expect some denial, explanation or answer by the accused to the prima facie case made against him.’ ”
In R v Fowler [2000] NSWCCA 142, Wood CJ at CL considered the implications of RPS upon the practice in this State of making a Weissensteiner direction. His Honour said:
[159] “It remains possibly open to argument that a Weissensteiner direction should only ever be contemplated in a ‘smoking gun’ case, or to a circumstantial case dependent on inference from proved facts, the innocent explanation for which might only reasonably lie in the mouth of the appellant …
…
[163] … The occasion for such a [Weissensteiner] direction in my view must hereafter be confined to an exceptional case of the kind there involved, where the line of reasoning in question is compelling.
[164] The present case was not to my assessment of that kind, particularly having regard to the circumstances that answers had been provided by the appellant in relation to at least some of the matters in his unsworn statement, that as to others his evidence could not have risen above a denial, and that tactical reasons were apparent to all as to why the appellant may have wished not to give evidence that were unassociated with fear of incriminating himself for the offence of murder for which he was on trial.”
The decision in Weissensteiner was applied by this Court in R v OGD (1997) 45 NSWLR 744. In RPS at [30] the High Court doubted that OGD stood for a “general proposition” that a direction should be given “in cases like the present” - which encompassed sexual assault cases in which the accused does not respond to the complainant’s evidence. The joint judgment in RPS expressly rejected any such “general proposition” referring, with approval, to Gleeson CJ’s emphasis in OGD at 752, on the need for caution in giving such directions.
The passage in OGD to which the High Court referred with approval in RPS concerned the existence of multiple charges, a circumstance on which the Appellant relies in this case. In OGD there were ten charges of homosexual intercourse with a specific male person under the age of 18 years and one charge of sexual intercourse without consent, also with respect to the specified person. In his reasons for decision, Gleeson CJ emphasised (at 747E) the significant difference between the first ten charges and the eleventh charge, turning on the absence of
consent for the last charge. His Honour said at 748A-B:
“If one were to search for a possible explanation of the appellant’s failure to give evidence there is, to my mind, one distinct possibility. It is that the appellant, if he had sought to defend himself against the final charge by asserting that the complainant consented to sexual relations, or that he did not know the complainant was not consenting, would have been forced to make admissions in relation to the other charges.”
His Honour concluded that the appellant’s dilemma in this regard emphasised the need for caution in making directions of this character (752F-G). The direction actually given did not distinguish between the different charges and was “dangerous and unfair” (753D).
In terms of the three specific matters to which the direction given in this case referred, there is no element distinguishing the insider trading charge from the FTRA charges, in the patent way that occurred with the issue of consent in OGD. Two of the three matters the subject of the direction do not arise in the FTRA charges - “no syndicate partner” (expressed in that form) and knowledge of the takeover. However, the use of the name “M. Booth” with respect to the bank cheques, overlaps with the use of that name in relation to the Ord Minnett accounts. There does not appear to be any material difference between these two situations.
The Appellant merely contended that, like OGD, there were multiple counts. However, no submission was made distinguishing any one of the three counts from the others. One possibility arises from the fact that count 2, the FTRA withdrawals charge, does not turn on the proposition that “Hannes was Booth”. There is, for example, a theoretical possibility that Mr Hannes could not give evidence to identify “Booth”, or otherwise establish that he did not know what shares his syndicate partner intended to invest in, without running the risk of admitting that he had, at least, collaborated in an evasion of the FTRA. However, in all the circumstances such a differentiation appears artificial in the extreme.

Also AB 3805-3806:
“Q.Can you explain why each cheque - each bank cheque was obtained under the amount of $10,000?
A.I see what you’re asking me. You’re not asking me for the withdrawals, you are asking me for the cheques.
Q. Yes?
A.Well, you’re pushing me. I can’t quite recall. I mean it might have been - I mean, I really don’t know why I did it that way. I mean, admittedly what I would have had if I’d made withdrawals in $10,000 notes, I’d probably - $9000 lots - I probably would have put $9000 in an envelope and given it to the person and asked him for a cheque.”
Then there was the explanation given to Mr Moss referred to at para 448 above.
For the above reasons, there was no misdirection on the third count in that part of the summing up here considered. However the Weissensteiner direction requires that there be a new trial on this count also.
The rejection of mfi: 95
The appellant sought, unsuccessfully, to tender a document with the following content:
“SHOULD I VISIT ASC OR NOT
CONS
Reveal Macquarie wrongdoing (breach of Chinese walls, cover up)
MBL will grab my $1m DRP as penalty
Mark not guilty of insider trading but may have committed other offences
-              minor tax avoidance?
-              share trading if he has used Mignon’s name
He may not be telling the truth (saw something on visit to MBL?) but contra agreed to give monies back)
Destroy other reputations eg. Mortimer
Embarrass Mig - feel object of charity
PROS
Right thing to do
Only way to establish that I am innocent
Have done nothing wrong
Am confident I have full story after my conversations with Mark in London
But must take Mark with me to ASC otherwise
-              will not be believed
-              how can you prove a negative ie. that I did
-              not give him any insider information
-              not buy options
-              not open Ords CMT etc
VITAL MARK BE THERE!!!
WHAT IF HE DOES NOT GET HERE BY FEB
Read riot act!
WRITE”
The handwriting expert, Mr Westwood, examined a number of notepads seized from the appellant’s residence upon the execution of a search warrant on 17 January 1997. Mr Westwood analysed both handwriting and indentations made on pages in the notepads. Using a device known as electrostatic detection apparatus (ESDA) he was able to develop an image of what may have been indented into a page by the act of writing. What the ESDA does is to produce a transparency. MFI:95 was a document produced by this process. Mr Westwood’s evidence was that the indentations he analysed (and these included mfi:95) were probably produced by the writer of the known control documents and the control documents. On the Crown case, such documents were written by the appellant.
The appellant did not concede that the writing on the document was his but, of course, if the jury accepted the evidence of Mr Westwood, his evidence would have supported a finding that the relevant writing was that of the appellant. Because the notepad in which the indentations from which the document was developed was seized on 17 January 1997, the writing must have been placed in the pad no later than that date. The writing refers to conversations in London and the evidence was that the appellant left Sydney for the United Kingdom on 14 November 1996, so that it was appropriate for her Honour, as invited to do by counsel, to consider the tender upon the basis that the words were written no earlier than 14 November 1996 and no later than 17 January 1997.
The tender of this document was the subject of extensive submissions at the trial before the trial judge ruled the document inadmissible. That there was such a ruling is recorded in the trial transcript (AB 1672) and the transcript later records (AB 1709a):
“I am in a position to give my ruling but not to give my reasons although I have got them in draft form.
My ruling is that the document sought to be tendered, that is the document which is part of mfi:95, that it is not admissible, that I reject each of the bases which were put forward on behalf of the contention that it is admissible and it follows that I did not need to consider the question of my exercising my discretion under s 135 of the Evidence Act.”
The detailed reasons for her Honour’s ruling have not been available on the hearing of this appeal, so that this Court does not have the advantage of knowing how her Honour came to the conclusions expressed.
It is the appellant’s contention that the rejection of this evidence led to a miscarriage of justice.
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.”
The considerations identified by their Honours in the above passage are in point in the present context.
It was submitted for the appellant that the appropriate inference to be drawn was that the document was not fabricated for a self-serving purpose and that it could therefore be regarded as reliable. Further, it was submitted that the fact that the sheet of paper on which the writing appeared was torn from the book refuted any suggestion that might otherwise have been made that the writing was placed on the paper for a self-serving purpose.
That the paper was subsequently torn out of the book does not bear upon the intention with which the writing was made. The writer may well have changed his mind as to the usefulness of the document. As the Crown submitted, the appellant may have written what appeared in the document for the purpose of outlining matters that he intended to advance to the ASC to further his own interests on an anticipated interview. There is nothing in the document which is contrary to the appellant’s interests; the content is capable of being regarded as essentially self-serving.
Absent evidence as to the circumstances in which, or the reasons for which, the appellant wrote what he wrote, the document was not probative of the assertions made in it and which prompted its tender. It did not pass the test of relevance contained in s 55.
Even if the evidence was to be viewed as meeting the requirements of s 55, it nevertheless faced exclusion under s 59:
“59. (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.”
It is the appellant’s contention that the document evidenced unintended assertions, made by implication, to the following effect:
(i) that a person using the name Mark existed;
(ii)that the appellant met this person in London in connection with the relevant events;
(iii) that the appellant did not acquire the options.
The definition of “representation” contained in the dictionary to the Evidence Act includes “a representation not intended by its maker to be communicated to or seen by another person”, and the word is to be given this extended meaning in s 59. Prima facie, the appellant intended to write what appears in mfi:95 at the time he wrote it. Absent evidence to the contrary, it could not be inferred that the appellant did not intend to assert by what he wrote the very matters which the appellant contends emerged from a reading of the document.
Had the document otherwise been admissible under s 55, it did not pass the hearsay test imposed by s 59.
A further basis advanced on the appellant’s behalf for the admissibility of this evidence was that the document afforded evidence of the appellant’s state of mind and intentions, in particular in relation to dealings with “M. Booth” and visiting the ASC. Section 72 of the Evidence Act provides for an exception to the hearsay rule in relation to contemporaneous statements inter alia about intention:
“72. The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.”
The document could not be admitted under s 72 having failed to satisfy the relevance test under s 55. However, the document would not have become admissible under s 72 in any event. Assuming the words “But must take Mark with me to ASC” could be treated as evidence of the appellant’s intention as at the time he wrote in the pad, evidence of the appellant’s intention at the time of writing did not go to a fact in issue. The appellant was seeking to rely upon the content of the document to prove the existence of Mark Booth and s 72 could not afford a vehicle for this when such content was not admissible under s 59.
It was also submitted that the document was admissible because the indentations from which it was developed were in the same book as other indentations developed and tendered by the Crown. Hence, it was argued, that this document was admissible as affording evidence of a previous representation rendered admissible by s 81(2) of the Evidence Act. Once again, of course, the argument depended upon acceptance of the submission that the evidence was relevant.
Section 81 provides:
“81. (1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:
(a)that was made in relation to an admission at the time the admission was made or shortly before or after that time; and
(b)to which it is reasonably necessary to refer in order to understand the admission.”
The material which was tendered by the Crown and which came from the same book as mfi:95 comprised Exhibits DR1 and DR2. When the content of those two exhibits is considered and compared with the content of mfi:95, there is nothing to link the latter document with the two exhibits so as to enliven s 81(2). There is nothing in mfi:95 which, on the face of it, suggests that it was “made in relation to” Exhibit DR1 or Exhibit DR2. Nor could it be said that it is “reasonably necessary” to refer to mfi:95 in order to understand anything in either Exhibit DR1 or DR2. MFI:95 does not contain anything which would lead to an understanding of either Exhibit DR1 or DR2, even if the two exhibits could be regarded as containing admissions.
In my opinion, her Honour was correct to reject the tender of mfi:95.
DOWD J: I agree with the judgment in draft form and the proposed orders of Spigelman CJ. I agree with the draft judgment and proposed order of Studdert J except insofar as that judgment disagrees with Spigelman CJ as to MFI 95.
As to the following grounds of appeal I make the following findings and set out the following reasons.
Ground 6.2(a)

The appellant’s grounds of appeal include in 6.2(a) a ground that the trial judge erred in law in admitting into evidence the opinion evidence of Mr Westwood concerning disputed handwriting.
Mr Westwood, an expert handwriting and document examiner, gave evidence after the overruling of an objection by the appellant on the status of Mr Westwood’s methodology concerning handwriting: that that methodology was fundamentally flawed and that his opinions were nothing more than speculation, and that they were therefore irrelevant.
The contention was that Mr Westwood used sample or control documents which were not properly proven, and that his ultimate opinions were uncertain or speculative because it was an opinion based on an opinion.
It was contended by the appellant that where an expert expresses an opinion concerning the authorship of disputed handwriting using sample or control documents, those sample or control documents must be proved either by admission by the alleged author or a witness who saw the alleged author write the document, or from somebody familiar with the handwriting of the alleged author.
The appellant contended that none of the relevant control documents were thus proven, and that only two of the nine control documents which comprise four handwritten words were proven by that appropriate method.
The challenge to the evidence was on the basis that Mr Westwood used the known control documents as samples, and that he formed a view that these were written by the same person as the control documents. It was contended that this form of analysis was impermissible, and becoming an opinion on an opinion. The Crown had sought to prove the association between the control documents and the known control documents by the fact that they were taken from the house where the appellant resided by inference from the content of the documents, but it was asserted by the appellant that there was no evidence to exclude the hypothesis that other persons may have been responsible for the documents.
It was further contended that Mr Westwood’s opinions were based largely on assumptions, which the Crown did not prove to the necessary standard, and that his opinions were therefore necessarily irrelevant and inadmissible.
The appellant contended, in the alternative, that Mr Westwood’s opinions should have been excluded under ss135 or 137 of the Evidence Act, on the basis that it’s probative value was low, being opinions on opinions, and that it was unfairly prejudicial and was likely to mislead or confuse.
In answer to the appellant’s submissions, the Crown submitted that the objection which was taken at trial, related to the comparison conducted by the handwriting expert, Mr Westwood, not as to the indentations achieved by the electrostatic detection apparatus which is referred to as ESDA, the process whereby indentations are enhanced into handwriting. I note that the point which is now taken in the appeal is that same point taken at trial.
It is significant that in fact there was no challenge to the expertise of Mr Westwood, nor, in the light of his vast experience and expertise could there be. The challenges to him were matters of credit relating to other trials at which he had given evidence. An examination of Mr Westwood’s cross-examination showed otherwise little challenge to his evidence and as such no challenge to the actual conclusions on handwriting to which he came. It was to be noted that in his evidence, the appellant had been given the opportunity to have the material examined by a Mr Chris Anderson, a document examiner. Mr Anderson was not called by the defence, a point which cannot have escaped the notice of the jury.
Of the control documents that were used apart from notebooks with which I will deal shortly, the authenticity of each document was established by oral evidence, and as pointed out by the Crown Prosecutor, was unchallenged by then counsel for the appellant. As to the four notebooks which went into evidence, one of them being document thirty-five, Exhibit DG, this was primarily used for the majority of comparisons. Examination of Exhibit DG which was before the jury, shows, together with other evidence, that the writing was that of the appellant. It was found in his living area, it contained detailed writings of a takeover of which he was the architect and detailed descriptions of the character of his colleagues at work. It is overwhelmingly clear that it was the appellant’s book, a fact which he admitted in his record of interview.
The appellant, in his record of interview, also made statements concerning the ownership of the notebook in which exhibit DG was found and the handwriting in that exhibit. He said “it looks like mine”. It was open to the jury to use these statements to conclude that it was his handwriting.
Her Honour had, with respect, the evidence of experts which included Mr Westwood’s evidence, and had given the usual directions concerning circumstantial evidence and the process of drawing inferences from circumstantial evidence which would enable the jury to assess this evidence in conjunction with the other evidence.
It is clear from Mr Westwood’s evidence that he did in fact exclude some handwriting that was not that of the appellant, as evidence of the care he took, a fact which was ultimately confirmed by other witnesses.
Mr Westwood conceded that if the control documents can be proved not to have been the handwriting of Mr Hannes, that he would need to review his findings, but no such attempt was made by then senior counsel for the appellant. And although it was not conceded by the appellant’s counsel that it was his book, no challenge was mounted in the trial to the conclusion that it was both the appellant’s book and the appellant’s handwriting.

The statements by the appellant in his ERISP as to document thirty-five and the independent proof by other evidence of other documents in the Crown case, in my view, clearly supports the judge’s admission of the evidence. There was before the jury evidence from which a reasonable jury could infer that the documents were written by the appellant. In my view, the Crown case was very strong on this issue.
Her Honour in fact specifically dealt with the part of the evidence as to handwriting when dealing with the direction to the jury as to circumstantial evidence, and senior counsel for the Crown at the trial pointed out the absence of challenge to the jury, and that this was only a challenge as to Mr Westwood’s credit. Some of the documents that were used and exhibited before the jury were documents specifically known to be the handwriting of the appellant, for instance his authority to operate his Taxola account.
Various terminology was used in terms of probability as to handwriting, in some cases “probably”, in some “very probably”. The words ‘very probably’ has a higher level of quality of comparison of handwriting evidence. An examination of all of the evidence exhibited being documents that were identified by various witnesses, create a very strong circumstantial case as to the appellant being the writer of the known control and control documents.
I can see no basis for exclusion of the evidence under the discretionary provisions of the Evidence Act 1995. The appellant’s submissions in this Court did not identify the nature of the unfair prejudice which it submitted outweighed the probative value of Mr Westwood’s evidence concerning the handwriting and should thus have led to the exclusion of the evidence under either s135 or s137 of the Evidence Act. Nor was the reason that the evidence likely to mislead or confuse identified.
At trial, the appellant, perhaps not in a particularly clear manner, submitted on the voir dire that the reason that should trigger the discretionary exclusion of the evidence was that the jury may use evidence that was not proved to convict the accused. The jury were entitled to give the evidence whatever weight they thought it deserved. The factual basis for the opinion and the process were clearly before the jury. There was no real danger that the jury would use the evidence improperly. The appellant’s submissions on this point should be rejected.
The evidence had high probative value and no prejudice was shown. Her Honour was correct in admitting the documents, and this ground therefore fails.
Ground 6.3
At 6.3 of the grounds of appeal, the appellant submitted that in the alternative to 6.2(a), that the trial judge having admitted the evidence of Mr Westwood concerning disputed handwriting, there was an error of law or alternatively a miscarriage of justice in that Her Honour failed to give any, or any adequate, directions or instructions to the jury concerning that evidence, and in particular failed to direct the jury concerning that before they could accept Mr Westwood’s opinions, they had to be satisfied beyond reasonable doubt that the appellant was the author of the known control documents.
The appellant submitted, as I earlier indicated, that the only direction which Her Honour gave as to the way in which Mr Westwood’s evidence was to be approached, was a general expert witness’s direction that opinions are only as valuable as the facts upon which they are based, and that they have limited value if the facts have not been established to the jury’s satisfaction.
The appellant’s contention is that the jury should have been directed that before Mr Westwood’s opinions could be relied on, they had to be satisfied beyond reasonable doubt that the appellant was the author of all of them, and that Her Honour should then have given the jury some guidance in relation to the evidence concerning the authorship of the relevant control documents and known control documents, as well as how the jury should approach Mr Westwood’s prima facie evidence.
The appellant contends that Mr Westwood was a crucial part of the Crown case, and that the admission that his evidence or failure to give adequate directions resulted in a substantial miscarriage of justice.
Her Honour in her summing up at AB 2035 and 2036 and again when she resumed the following hearing day from page 2045 and 2046, went through the evidence as to handwriting when dealing with circumstantial evidence in the drawing of inferences. A greater degree of elaboration would have been desirable.
In particular it would have been desirable for her Honour to accurately summarise the process by which Mr Westwood has first formed the opinion that certain of the documents originally identified as the ‘control documents’ and the ‘known control documents’ were written by the same person and then formed his opinion, through a process of comparison with the documents thus identified that other documents were also written by the same person.
The High Court in Shephard v R (1990) 170 CLR 573, per the judgments of Mason CJ, Dawson, Toohey and Gaudron JJ, held that if it was necessary for a jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt.
Her Honour summarised the process by which Mr Westwood formed his opinion as follows:
“… he compares those, compares the various documents with what was called the ‘known control and control documents’ and he expresses an opinion in relation to the authorship of those various signatures, not only the cheques but in respect to other documents that he was given the task of looking at.” (AB2036)
Whether there is a need for a trial judge to identify such a conclusion and direct the jury as to that standard of proof will depend upon the circumstances of the case.
There was nothing in the direction sought that “all of the handwriting in the known control documents” be established beyond reasonable doubt be that of Mr Hannes. This evidence is unquestionably a critical part of the Crown case, but is not such an intermediate conclusion as would identify it as an indispensable intermediate step as identified in Shephard.
In my view, the direction given by Her Honour as to expert evidence was sufficient, since it was clear that Mr Westwood was one of those experts that it was a matter for the jury to be satisfied on the evidence that a conclusion could be drawn about the comparison between the control documents and the specific documents admitted into evidence which were described as ‘specimen’ documents that the appellant was the author.
In my view, this ground fails.
Ground 6.2(b)
At 6.2(b) of the grounds of appeal, the appellant claimed that the trial judge erred in law in admitting into evidence the photoboards GP 96/1437 (which became Exhibits RR and TT respectively), together with the evidence of Mr Brear and Ms Wilkins in connection with such photoboards.
The evidence of two witnesses, namely Mr Brear and Ms Wilkins, was objected to in relation to the selection of a photograph from a photoboard because of a suggested contravention of s3Z0(2) of the Commonwealth Crimes Act 1914. It is contended therefore by the appellant that this brought the evidence within s138 of the Evidence Act 1995 and thus should have been excluded.
The appellant’s submission was that Mr Brear and Ms Wilkins had described the persons as having close-cropped short hair or a crew-cut, and none of the photographs had close cropped hair and that the other photographs did not contain photographs of persons who resembled the suspect in age and general appearance.
Section 3ZO(2) is relevantly in the following terms:
“(2) If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a) the constable must show to the witness photographs or pictures of at least 9 different persons;
(b) each photograph or picture of a person who is not the suspect must be of a person who:
(i) resembles the suspect in age and general appearance; and
(ii) does not have features visible in the photograph or picture that are markedly different form those of the suspect as described by the witness before viewing the photographs or pictures;….”
there are then set out other conditions that are not here relevant.
Her Honour overruled the objection to this evidence. Her Honour agreed with the submission of the Crown that at the relevant time, the police were still in the investigative phase and had no distinct suspect in the terms required by s3ZO(2). Earlier, counsel for the appellant had agreed that it was not the case that there was any evidence that the police said that the person whom they were attempting to identify was the appellant. (AB200 line 30).
It is contended by the appellant that Her Honour was incorrect and that s3ZO(2) applies to a situation where persons where police show a photograph to a person to establish the identity of a subject which is part of the investigative stage. The submission was that the person in a photograph numbered four was the suspect, and the police were endeavouring to establish his identity.
It is then submitted by the appellant that once a finding has been made of contravention of the rules in s3ZO(2) of the Crimes Act, that the evidence should have been excluded under s138, since the evidence was of a low probative value, and that the evidence was prejudicial.
The Crown does not challenge that a person may be a suspect, even though the investigators do not know his name, but at the time of the examination of the photoboards, the investigators did not have a suspect, which is what s3ZO(2) requires.
Counsel at the hearing conceded that the appellant’s application to exclude must fail if the Crown’s submission is right.
Whether that concession had occurred or not, s 3ZO(2) of the Crimes Act only operates where the investigators have identified a “suspect”. Having a photograph of a person does not make the person photographed a suspect. The subsection talks in terms of “whether or not the suspect is in custody”. Indeed, the section clearly connotes a particular person being the subject of suspicion. A person in a photograph does not make that photograph a person within the contemplation of the section.
Agent Jamieson was the Federal Agent that was investigating the events at the relevant time. She gave evidence that she commenced working on avenues of inquiry into finding “Mark Booth” on 15 October 1996. Agent Jamieson said that the photographs the subject of this ground of appeal were converted into prints from various frames copies onto thermal paper from a video obtained from the National Australia Bank branch in Leichhardt on 18 October 1996.
Agent Jamieson gave evidence that the basis of her selection of prints was:
“A          … fairly broad in terms of looking for males between the ages of about late 20s and early 40s, light coloured skin. That’s about it.
Q            Any particular appearance?
A            Either neat casual or business attire.
Q            And was that selection, if I can put it that way, based on descriptions that you had obtained to that point?
A            Yes. It was.
Q            What descriptions was it based on?
A            I had obtained descriptions from Donna Anthes, Theresa Garbo, Caroline Pollard and David Jackson at that stage.” (AB251 lines 10-28)
This suggests that the criteria for selection were not specific. At AB252 line 35 Agent Jamieson agreed that the descriptions were “in general terms”. Agent Jamieson gave evidence of the descriptions of Booth given to her by Ms Anthes, Ms Pollard and Mr Jackson. Nothing in those descriptions is of a sufficient particularity to justify a conclusion that at the relevant time, Agent Jamieson’s work was other than investigative. This supports the Crown’s submission that the police were only in the investigative stage and had not moved into the phase which would fall under s3ZO(2).
As contended by the Crown, this issue was not argued fully at the trial because of the concession of counsel appearing for the appellant, even though that concession may have been misconceived. I would in that event apply Rule 4 of the Criminal Appeal Rules. The objection was correctly overruled. At that stage, the attempt was to identify “Mark Booth”, who has never been a suspect in these proceedings.
In my view, this ground of appeal fails.
Non-consensual verdicts

The appellant raised the further ground that there was an unacceptable risk that the jury’s verdict in respect of the insider trading count was non-consensual in that the circumstances of the trial created undue pressure upon individual jurors to join the view taken by the majority because those individuals saw no other way of bringing the trial to an end.
In support of this ground, the appellant submitted that the trial had continued well in excess of the estimate given to jurors at the commencement; that the jury deliberated for an inordinate amount of time, namely 11 days, which was 28 days after the close of evidence, and 28 days after the closing addresses; and that on day six of deliberations, the jury sought directions as to the meaning of the term “reasonable doubt”.
The appellant further submitted that when the verdicts on the Financial Trading Act counts were received, a note was sent by the jury saying that they were unable to reach a unanimous direction on the insider trading count. The appellant submitted that Her Honour failed to give a clear indication to the jury that it would be discharged if unable to reach a unanimous verdict when she gave a direction which purported to comply with Black v the Queen (1993) 179 CLR 44, but departed from the usual direction, in that she failed to indicate that the jury would be discharged if they did not reach a unanimous verdict.
The appellant also relies on Her Honour’s failure to discharge the jury on the application of the appellant, or to conduct an enquiry under s56 of the Jury Act 1977 and it is suggested that Her Honour’s discretion miscarried because she had regard to an irrelevant consideration, namely that a court officer advised her that the jury had requested a video screen to review the ERISP. It was further submitted by the appellant that Her Honour should have questioned the foreman of the jury, as to whether the deliberations were continuing.
The respondent in reply to these contentions, pointed out that the jury had a considerable amount of evidence to consider, with documents running to an excess of 2500 pages, and that the jury had, when commencing deliberations, advised that they wanted to conclude at 4pm each day, indicating that the jury members themselves contemplated that their deliberations would be lengthy.
As submitted by the respondent, the request for a screen showed that the jury were continuing with meaningful deliberations and wanted to watch the video as opposed to reading the transcript. The record of interview was obviously heavily relied on by the Crown. It is pointed out that at the tender of the video, the Crown told the jury in terms of the usual direction in accordance with Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180, to indicate that it was the video, not the transcript, which is the evidence.
The respondent pointed out that the video runs for 2 hours and 23 minutes, and that the request had been made at 9.30 am on the 10 August 1999, and that the jury’s verdict was delivered at 2.57 pm on the 11 August 1999.
In relation to the length of the trial, it is clear that the jury approached the matter on the basis that it would take a considerable amount of time to examine the vast quantity of material during their deliberations. It would be, in the nature of the trial, unusual if the jury did not want to examine the material, and that examination would be at length. A jury seeking directions some part way through deliberations is evidence of the continuing deliberation by the jury. In that respect, I would reject this submission.
The variation Her Honour made at the end of the standard Black direction, that she would deal with the matter if the jury was unable to reach a unanimous verdict, could have had no other meaning to the jury other than that they would be then discharged. Her opening words of the direction were:
“I have the power to discharge you from giving a verdict, but I should only do so if I am satisfied that there is no likelihood that genuine agreement being reached after further deliberations.”
Appeal Book 2290
There is no way that the jury could have misunderstood the fact that they would be discharged if no agreement had been reached after further deliberation. I reject this submission.
In the light of the Butera submission by the Crown, it is clear that the record of interview, being central to the Crown’s case, that there would be no basis, on the evidence available to Her Honour, that the jury was still deliberating on the record of interview, for Her Honour to question the foreman, or to do other than to assume that normal and proper deliberations were continuing, would be an unwarranted interference, at that stage, with the jury process.
On the length of the trial and the volume of material and evidence that the jury had dealt with two of the three charges and were seeking to further examine evidence on the significant record of interview presents, notwithstanding the length of the trial, an overwhelming case that the jury were carrying out the functions in a normal and appropriate manner.
There is no evidence that anyone was pressured by the length of time, and there was nothing to indicate that the jury’s verdict was other than a consensual verdict, particularly considering the short space of time from what would have been the viewing of the appellant’s record of interview, and the delivery of the jury verdict on the insider trading count.
The jury appears to have taken their responsibility seriously and to have carefully examined in an appropriate manner, a vast quantity of evidence over a considerable length of time. This ground is not made out.

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LAST UPDATED: 05/12/2000