R v Mansfield - [2011] WASCA 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: R -v- MANSFIELD [2011] WASCA 132

CORAM: McLURE P
BUSS JA
MURRAY J

HEARD: 1 DECEMBER 2010

LAST
SUBMISSIONS : 31 JANUARY 2011

DELIVERED : 16 JUNE 2011

FILE NO/S: CACR 48 of 2010

BETWEEN: THE QUEEN
Appellant
AND
NIGEL CUNNINGHAM SWIFT MANSFIELD
First Respondent
JOHN KIZON
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :IND 69 of 2005

Catchwords:

Criminal law - Insider trading - Definition of 'information' in s 1042A of the Corporations Act 2001 (Cth) - Whether the definition of 'information' requires the Crown in an insider trading prosecution to prove that the 'information' in question was 'truthful' or a 'factual reality' or based on reasonable grounds

Criminal law - Conspiracy - Elements of the offence of conspiracy to commit an offence by contravening the insider trading provisions of the Corporations Act - Whether the evidence at the close of the Crown's case was incapable of establishing that the information as particularised by the Crown was 'not generally available' - Whether the evidence at the close of the Crown's case was incapable of establishing the existence of each conspiracy alleged against each of the offenders and his participation in them

Criminal law - Application by the National Crime Authority for the issue of telephone intercept and access warrants pursuant to s 45A of the Telecommunications (Interception) Act 1979 (Cth) - Warrants issued by a nominated Administrative Appeals Tribunal member - Whether the trial judge erred in holding that the warrants were valid - Whether the trial judge erred in failing to hold that the warrants were invalid and that the information obtained thereby was inadmissible

Legislation:

Corporations Act 1989 (Cth)
Corporations Act 2001 (Cth), s 675, s 676, s 677, s 1002A, s 1002B, s 1002G, s 1042A, s 1042C, s 1042D, s 1043A, s 1043M, s 1311
Corporations Legislation Amendment Act 1991 (Cth)
Criminal Code (Cth), s 3.1, s 4.1, s 5.1, s 5.2, s 5.3, s 5.6, s 11.5
National Crime Authority Act 1984 (Cth), s 4, s 11, s 13
Securities Industry Act 1980 (NSW), s 128
Telecommunications (Interception) Act 1979 (Cth), s 4, s 5, s 5B, s 7, s 45A, s 49, s 74, s 75, s 77
Telecommunications (Interception) Regulations 1987 (Cth)

Result:

Appeal allowed
Judgments of acquittal set aside
New trial ordered
Notices of contention dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr W B Zichy-Woinarski QC & Mr J R Champion
First Respondent           :     Mr M L Bennett
Second Respondent       :     Mr S A Shirrefs SC

Solicitors:

Appellant:     Director of Public Prosecutions (Cth)
First Respondent           :     Lavan Legal
Second Respondent       :     Holborn Lenhoff Massey

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299
Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963; (2007) 160 FCR 35
Bateman Eichler, Hill Richards, Inc v Berner 105 S Ct 2622 (1985)
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coleman v Myers [1977] 2 NZLR 225
Coleman v Myers [1977] 2 NZLR 297
Commissioner for Corporate Affairs v Green [1978] VR 505
Dinive Holdings Pty Ltd v Paracel Pty Ltd (1980) 4 ACLR 928
Ernst & Ernst v Hochfelder 96 S Ct 1375 (1976)
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
Green v Charterhouse Group of Canada Ltd [1973] 2 OR 677; (1973) 35 DLR (3d) 161
Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 205 FLR 217
Hannes v The Queen [2008] HCA Trans 133
Hook v Rolfe (1986) 7 NSWLR 40
Hooker Investments Pty Ltd v Baring Bros Halkerston & Partners Securities Ltd (1986) 10 ACLR 462
Hyatt v Allen (1914) 26 OWR 215; 17 DLR 7
In re Cady, Roberts & Co 40 SEC 907 (1961)
In re Motel 6 Securities Litigation 161 F Supp 2d 227 (2001)
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
New South Wales Crime Commission v Vuletic [2005] NSWSC 614; (2005) 64 NSWLR 301
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Percival v Wright [1902] 2 Ch 421
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 353
R v Bilick (1984) 36 SASR 321
R v Firns [2001] NSWCCA 191; (2001) 51 NSWLR 548
R v Hannes [2000] NSWCCA 503; (2000) 158 FLR 359
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v LK [2010] HCA 17; (2010) 241 CLR 177
R v Rivkin (Unreported, NSWSC, 70065 of 2002, 10 April 2003)
R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
R v Solomon [2005] SASC 265; (2005) 92 SASR 331
R v Staines [1997] 2 Cr App R 426
R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77
Ryan v Triguboff [1976] 1 NSWLR 588
SEC v Monarch Fund 608 F 2d 938 (2nd Cir 1979)
SEC v Thrasher 152 F Supp 2d 291 (SDNY 2001)
SEC v Tome 638 F Supp 596 (SDNY 1986)
Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342
The State of Western Australia v Mansfield [2009] WADC 56
The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 84 ALJR 683
United States v Chestman 947 F 2d 551 (2nd Cir 1991)
United States v Cusimano 123 F 3d 83 (2nd Cir 1997)
United States v Mylett 97 F 3d 663 (2nd Cir 1996)
United States v Teicher 987 F 2d 112 (2nd Cir 1993)
Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56; (2001) 105 FCR 212

Table of Contents

McLure P's reasons.................................................................................................................. 6
Buss JA's reasons.................................................................................................................... 10
The trial judge's reasons for finding there was no case to answer
The Crown's grounds of appeal
The Crown's grounds of appeal: Mr Mansfield's and Mr Kizon's submissions
Brief overview of the legislative history
The policy rationales for prohibiting insider trading
The policy rationale for the insider trading prohibitions in the Act
The provisions of the Act relevant to these appeals
The elements of the substantive offence of insider trading contrary to s 1043A(1)
The legislative history relating to the definition of 'information' in s 1042A
The nature of 'information' for the purposes of the continuous disclosure requirements of the Act compared to the nature of 'information' for the purposes of the insider trading prohibitions
United States decisions on the meaning of 'information' in the context of the United States insider trading prohibitions
The merits of the Crown's grounds of appeal
The Crown's grounds of appeal: conclusion
Mr Mansfield's and Mr Kizon's notices of contention
Ground 1 of the notices of contention: Mr Mansfield's and Mr Kizon's submissions
The merits of ground 1 of the notices of contention
Ground 2 of the notices of contention: Mr Mansfield's and Mr Kizon's submissions
The merits of ground 2 of the notices of contention
Ground 3 of the notices of contention: general
Ground 3 of the notices of contention: the relevant statutory framework
Ground 3 of the notices of contention: the form of the warrants
Ground 3 of the notices of contention: Mr Mansfield's and Mr Kizon's submissions
Ground 3 of the notices of contention: the trial judge's reasons
Ground 3 of the notices of contention: Mr Mansfield's and Mr Kizon's criticism of the trial judge's reasoning
The merits of ground 3 of the notices of contention
The result of the appeal
Murray J's reasons................................................................................................................. 90
Schedule to Buss JA's reasons............................................................................................... 94

McLURE P: I have had the advantage of reading the reasons for judgment of Buss JA. I agree with his reasons on all matters save on the question of whether the trial judge erred in concluding that the respondents had no case to answer on specified counts in the indictment. I would dismiss the appeal and the notices of contention. These are my reasons for dismissing the appeal.
All of the relevant background is detailed by Buss JA and not repeated here. The insider trading provisions of the Corporations Act 2001 (Cth) (the Act) are devilishly difficult to construe. It is difficult to discern an entirely coherent, internally consistent statutory framework. Thus, it is difficult to be entirely confident as to their proper construction.
The Crown challenges the trial judge's conclusion that it was a necessary element of the former offence in s 1002G(2)(b) of the Act and its successor, s 1043A(1)(d) of the Act, that the information acted on by the accused be 'truthful information' or 'a factual reality'. I infer the conclusions are stated in the alternative because the information the subject of the counts included statements of existing fact as well as predictions and opinions. Further, there was an evidentiary foundation for an inference that at least some of the alleged information provided to the respondents constituted fraudulent misrepresentations.
Implicit in the trial judge's reasons on the no case submissions is that the 'inside information' on which the Crown relied was the particularised information relating to the affairs of the bodies corporate in question, not the mere fact that a director of the bodies corporate made statements to the relevant effect. All of the Crown's particulars are in the same format. The particulars of count 1 provide a representative example:
In relation to AdultShop, the information of which the two accused were possessed was to the effect that:
(a)The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
(b)The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million to about $111 million;
(c)The information at subparagraphs (a) and (b) above had been obtained on or about 4 January 2002 as a result of private conversation between Malcolm Day, the managing director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.
The framing of the particulars is consistent with the way the Crown conducted its case at trial, namely, that the matters in (a) and (b) were the 'inside information' the subject of the charge. The matters in (c) were relevant to materiality and the respondents' knowledge.
The former s 1002G (in Pt 7.11 Div 2A) and s 1043A (in Pt 7.10 Div 3) of the Act are in materially the same terms. I will focus on s 1043A. Part 7.10 Div 3 of the Act is entitled 'The insider trading prohibitions'. Section 1043A contains a trading prohibition, a procuring prohibition and a communicating prohibition. The prohibitions relate to relevant Division 3 financial products. Such products are defined (s 1042A) to include 'securities' which in turn is defined to mean shares in a body corporate (s 92).
For the sake of convenience, I propose to set out s 1043A(1) which contains the trading and procuring prohibitions. It provides:
(1)Subject to this Subdivision, if:
(a)a person (the insider) possesses inside information; and
(b)the insider knows, or ought reasonably to know, that the matters specified in paragraphs (a) and (b) of the definition of inside information in section 1042A are satisfied in relation to the information;
the insider must not (whether as principal or agent):
(c)apply for, acquire, or dispose of, relevant Division 3 financial products, or enter into an agreement to apply for, acquire, or dispose of, relevant Division 3 financial products; or
(d)procure another person to apply for, acquire, or dispose of, relevant Division 3 financial products, or enter into an agreement to apply for, acquire, or dispose of, relevant Division 3 financial products.
The labelling of the person in s 1043A(1)(a) as 'the insider' has the potential to mislead. Amendments made by the Corporations Legislation Amendment Act 1991 (Cth) (the 1991 Amendment Act) removed the 'insider' element from the law relating to insider trading. The prohibition in s 1043A applies to all persons regardless of whether the inside information was obtained by or from a person connected, directly or indirectly, with the body corporate whose securities were traded.
'Information' is defined in s 1042A to include:
(a)matters of supposition and other matters that are insufficiently definite to warrant being made known to the public; and
(b)matters relating to the intentions, or likely intentions, of a person.
The word 'information' is wide enough in both its natural and ordinary meaning and extended meaning to include hearsay. It also includes matters of opinion, actual or likely intention and assumption. The clear implication is that 'information' is actually connected with a person or entity.
The statutory expression 'inside information' is defined in s 1042A to mean information in relation to which the following paragraphs are satisfied:
(a)the information is not generally available;
(b)if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of particular Division 3 financial products.
For analytical purposes I will refer to information 'not generally available' as 'confidential' information. Such information must be confidential (available) 'to' someone or, in a broad non‑technical sense, 'belong to' someone. That is, there will be a person or persons entitled to possession of the confidential information and/or entitled to use or act on it. This is not a retreat to the 'misappropriation theory' which was rejected as the policy basis for the law, but a step in the process of statutory construction.
Inside information is widely defined to include confidential information that 'belongs to' the person who trades in the relevant securities. That is evident from the defences in s 1043H, s 1043I and s 1043J which apply when that person's intended action is itself the confidential price‑sensitive information. The definition of inside information also includes confidential information 'belonging to' third parties. However, those two categories must cover the field. This case concerns confidential information in the latter category.
When the definitions of 'information' and 'inside information' are considered together, the evident statutory intention is that 'inside information' is confidential information in the possession of the entity (or entities) entitled to have, or act on it. That is, inside information must actually exist; it is not inside information simply because a real insider communicated it or because it was in the possession of the accused.
In order to establish that an accused is in possession of inside information for the purposes of s 1043A(1), there must be a proven correlation or correspondence between the inside information in the possession of the accused and the inside information in the possession of the entity entitled to it. The correspondence does not have to be coextensive. Inside information in the possession of the accused may be the product of inferences, deductions or assumptions made by the accused (or by a real insider and communicated to the accused). However, the inference, deduction or assumption in the accused's possession must be based on (caused or contributed to by) inside information, being actual events or information from within the entity entitled to possess or use it. An inference or deduction can be wrong or misleading even if based on actual inside information.
An accused will be in possession of inside information if it is proven that the inside information in his or her possession corresponds in whole or in material part with the actual internal affairs or internal workings of the entity entitled to possess it. What is required in order to prove the existence of that inside information will depend upon the content of the relevant inside information in the accused's possession. If he or she receives information of a rumour within a company or of what an officer is said to have reported to the board, the Crown must prove the existence of the rumour or the making of the statement, as the case may be. It does not have to prove the truth of the rumour or of the reported internal statement. If the rumour or internal statement contained a prediction, opinion or intention, it would not be necessary to prove that there were reasonable grounds for the prediction, opinion or intention.
However, the information in the possession of the respondents in this case was the substance of the statements made to the respondents. In relation to the particulars of count 1, the information was as to the expected profit and turnover of AdultShop. They were predictions impliedly based on actual performance to date. The Crown had to prove that there was information in the possession of AdultShop that on its face was capable of supporting the substance of the predictions. It did not. However, it was not necessary to go further and establish that the information in the possession of the companies was itself reasonably based. The Crown also failed to prove that the particularised information the subject of the other dismissed counts corresponded with actual inside information of the companies whose shares were traded.
In summary, it is an element of the offence of insider trading that the inside information in the possession of the accused correspond in whole or

material part with actual inside information in the possession of the entity entitled to have or use it. Thus, a fraudulent misrepresentation as to the internal affairs of an entity, even if made by an officer thereof, is incapable of being inside information.

This construction of the expression 'inside information' is consistent with the statutory purposes of the insider trading provisions of the Act, being to ensure market efficiency and market fairness, in the sense that all parties to a transaction have the opportunity to access the same information. It is also consistent with the 1989 Griffiths Report (Fair Shares For All, Insider Trading in Australia) on which the current statutory scheme is based. The Griffiths Report concluded:
The offence of insider trading must have its genesis in the use of information derived from within a company [4.3.5].
That statement reflected the law as it then stood (see Corporations Act 1989 (Cth), s 1002 which was in relevantly the same terms as the Securities Industry Acts 1980 (Cth), s 128). The removal of the 'insider' element from the law of insider trading recommended in the Griffiths Report and implemented by the 1991 Amendment Act did not take with it the additional requirement that the insider trading prohibition be on the use of actual inside information. It cannot have been the legislature's intent to prohibit the use of information that was not generally available only because the information did not actually exist in the first place.
The evidence adduced by the Crown against the respondents was incapable of supporting a finding that the information the subject of the dismissed counts was based on information in the possession of the bodies corporate whose shares were traded by the respondents. The appeal should be dismissed.
BUSS JA: The first respondent, Nigel Cunningham Swift Mansfield, and the second respondent, John Kizon, were jointly prosecuted by the Crown in right of the Commonwealth on an indictment containing 52 counts.

The counts were, in summary, as follows:
(a)Counts 1, 9, 12, 13, 14, 16, 17, 21 and 23, each alleged a conspiracy between Mr Mansfield and Mr Kizon pursuant to s 11.5 of the Criminal Code (Cth) (the Code) to commit an offence contrary to s 1311(1) of the Corporations Act 2001 (Cth) (the Act) by contravening the insider trading provisions of s 1002G(2)(b)

(before 11 March 2002) and s 1043A(1)(d) (on and after 11 March 2002) of the Act.
(b)Counts 1A to 1G, 9A to 9E, 13A, 14A and 14B, 16A and 16B, 21A to 21H and 23A, each alleged a substantive insider trading offence against Mr Mansfield alone. These counts were alternatives to the conspiracy counts.
(c)Counts 2, 3, 4, 5, 7, 8, 10, 11, 15, 19 and 20, each alleged a substantive insider trading offence against Mr Mansfield alone. These counts were not alternatives to the conspiracy counts.
(d)Counts 12A to 12C, 18 and 22, each alleged a substantive insider trading offence against Mr Kizon alone. Counts 12A to 12C were alternatives to the conspiracy counts. Counts 18 and 22 were not alternatives to the conspiracy counts.
(e)Count 6 alleged that Mr Mansfield alone had committed an offence contrary to s 1311(1) of the Act in that he contravened s 1002G(3) of the Act by communicating inside information to another person when he knew or ought reasonably to have known that the other person would or would be likely to purchase shares or procure a third person to purchase shares.

The Crown's case at trial was run on the basis that if the jury was not satisfied beyond reasonable doubt that an alleged conspiracy had been made out then the jury should consider the substantive offences pleaded as alternatives.
The 'inside information' related to two publicly listed companies, namely, My Casino Ltd (My Casino), which changed its name to Euraust Limited (Euraust), and AdultShop.com Ltd (AdultShop).
The 'inside information' comprised statements alleged to have been made by either Malcolm Day (the Managing Director of AdultShop) or Michael O'Donnell (the Chairman of My Casino).
The Crown particularised several separate categories of 'inside information' alleged to have been possessed by Mr Mansfield or Mr Kizon, as the case may be, during the relevant periods in relation to My Casino and AdultShop.
The Crown opened its case on Monday, 18 January 2010, and closed it on Friday, 12 March 2010. On 15 March 2010, counsel for Mr Mansfield and counsel for Mr Kizon made an application to the trial judge, Wisbey DCJ, pursuant to s 108 of the Criminal Procedure Act 2004 (WA) for a finding by his Honour that each of Mr Mansfield and Mr Kizon was not guilty on each count because there was no case to answer on any of the counts. Counsel for Mr Mansfield and counsel for Mr Kizon submitted to his Honour that the evidence adduced by the Crown, taken at its highest, would not enable the jury to be satisfied beyond reasonable doubt that the accused persons possessed and acted upon 'information', as defined in s 1002A (before 11 March 2002) and s 1042A (on and after 11 March 2002) of the Act. In particular, it was submitted that the evidence adduced by the Crown, taken at its highest, would not enable the jury to be satisfied beyond reasonable doubt that the 'information' in question was 'factually correct'. The prosecutor conceded that the jury could not be satisfied beyond reasonable doubt that the relevant information was 'factually correct', on any counts, except counts 2, 3, 19 and 20.
On 19 March 2010, the trial judge ruled that the 'information' particularised by the Crown, and allegedly possessed by each of the accused persons during the relevant periods, 'must, in general circumstances, be a factual reality' (ts 2838). He decided that a judgment of acquittal should be entered in respect of all counts, except counts 2, 3, 19 and 20. As to those counts, his Honour was satisfied that there was evidence, taken at its highest, which was capable of establishing the 'factual reality' of all or most of the particularised 'information'.
On 22 March 2010, the trial judge entered a judgment of acquittal in respect of all counts, except counts 2, 3, 19 and 20.
The Crown has appealed to this court, pursuant to s 24(2)(e)(i) of the Criminal Appeals Act 2004 (WA), against the judgments of acquittal entered by the trial judge.

The trial judge's reasons for finding there was no case to answer

The trial judge said in his reasons for finding there was no case to answer that trial counsel had been unable to identify any relevant authority 'where a falsehood [had] been accepted as information for the purposes of an insider trading offence' (ts 2837 ‑ 2838). His Honour added that 'all the reported material deals with information that was factually correct' (ts 2838).
His Honour expressed this view:
In my view, assistance can be gained by consideration of the definition of 'inside information' in s 1042A which provides that it means:
'[I]nformation in relation to which the following paragraphs are satisfied:
(a)the information is not generally available;
(b)if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of particular Division 3 financial products.'
Materiality is defined in s 1042D as follows:
'For the purposes of this Division, a reasonable person would be [taken to expect information to have a material effect on the price or value of particular Division 3 financial products if (and only if) the information would, or would be likely to, influence persons who commonly acquire Division 3 financial products in deciding] whether or not to acquire [or] dispose of the first‑mentioned financial products' (ts 2838).
The trial judge then said that it was 'difficult to conceptualise how a falsehood could meet that test, or how a jury would be instructed to approach its task where the information was false' (ts 2838).
His Honour ruled, as I have mentioned, that the 'information' acted upon by an accused 'must, in general circumstances, be a factual reality' (ts 2838).

The Crown's grounds of appeal

The Crown relies on three grounds of appeal, which read:
1.That in respect of Counts 1, 1A ‑ 1G, 4, 5, 6, 7, 8, 9, 9A ‑ 9E, 10, 11, 12, 12A ‑ 12C, 13, 13A, 14, 14A ‑ 14B, 15, 16, 16A ‑ 16B, 17, 18, 21, 21A ‑ 21H, 22, 23, and 23A the learned trial judge erred in law in ruling that it was a necessary element of an offence alleged to have been committed pursuant to s 1002G and s 1043A of the Corporations Act 2001 (Cth) that the information acted on by the accused was truthful information.
2.That in respect of Counts 1, 1A ‑ 1G, 4, 5, 6, 7, 8, 9, 9A ‑ 9E, 10, 11, 12, 12A ‑ 12C, 13, 13A, 14, 14A ‑ 14B, 15, 16, 16A ‑ 16B, 17, 18, 21, 21A ‑ 21H, 22, 23, and 23A the learned trial judge erred in law in ruling that it was a necessary element of an offence alleged to have been committed pursuant to s 1002G and s 1043A of the Corporations Act 2001 (Cth) that the information acted on by the accused was a factual reality.
3.That in respect of Counts 1, 1A ‑ 1G, 4, 5, 6, 7, 8, 9, 9A ‑ 9E, 10, 11, 12, 12A ‑ 12C, 13, 13A, 14, 14A ‑ 14B, 15, 16, 16A ‑ 16B, 17, 18, 21, 21A ‑ 21H, 22, 23, and 23A the learned trial judge erred in law in entering judgments of acquittal on the basis that each accused had no case to answer on each of the said charges.
On 25 June 2010, Mazza J granted leave to appeal on each of these grounds.
The critical issue raised by the grounds is whether it is a necessary element of the offences created by s 1002G and s 1043A, read with s 1311, of the Act that the 'information' possessed by the accused was 'truthful' or a 'factual reality'.
It is convenient to consider this issue by reference to the applicable statutory provisions in effect on and at relevant times after 11 March 2002. The differences in the statutory text at relevant times before 11 March 2002, on the one hand, and on and at relevant times after 11 March 2002, on the other, are not material for the purposes of this appeal.

The Crown's grounds of appeal: Mr Mansfield's and Mr Kizon's submissions

Counsel for Mr Mansfield and counsel for Mr Kizon submitted that the trial judge, in concluding that 'the information acted upon must, in general circumstances, be a factual reality' meant that for a statement to be 'information', for the purposes of the insider trading prohibitions in the Act, the statement must 'in general circumstances be a factual reality'. That is, a false statement of alleged fact is not a 'factual reality' and therefore is not 'information'. Counsel supported his Honour's conclusion as explained by them.
It was emphasised that s 1042A defines 'information' to include:
(a)matters of supposition and other matters that are insufficiently definite to warrant being made known to the public; and
(b)matters relating to the intentions, or likely intentions, of a person.
Counsel contended that 'matters of supposition' and 'other matters' are conjunctive, and are both qualified by the requirement that they 'are insufficiently definite to warrant being made known to the public'.
This qualification is important, so it was submitted, as it gives content to what is meant by 'information'. According to counsel, it is inconceivable that falsehoods or lies could ever warrant being made known to the public unless accompanied by information exposing their falsity, so as to prevent market distortion and unfairness. A false statement, by itself, will, so it was submitted, distort the market and lead to the very consequences that the market manipulation provisions of the Act are designed to negate.
It was therefore submitted on behalf of Mr Mansfield and Mr Kizon that the extended definition of 'information' is not inconsistent with the trial judge's construction but, rather, supports it.
It was also submitted that the notion of equal access to relevant information held by a corporation which issues securities cannot be thought to include false statements about the corporation or its activities. Nor can it be thought, so it was submitted, that the fiduciary duty of a corporation's officers extends to the making of false statements.

Brief overview of the legislative history

Before 1970, there was no Commonwealth or State legislation which specifically prohibited insider trading. As to the position at common law, see Percival v Wright [1902] 2 Ch 421; Hyatt v Allen (1914) 26 OWR 215; 17 DLR 7; Coleman v Myers [1977] 2 NZLR 225 and, on appeal, Coleman v Myers [1977] 2 NZLR 297; Dinive Holdings Pty Ltd v Paracel Pty Ltd (1980) 4 ACLR 928.
In 1970, the Senate of the Commonwealth Parliament established a Select Committee on Securities and Exchange (the Rae Committee) to inquire into and report on whether it was desirable and feasible to establish a Commonwealth Securities and Exchange Commission. Soon after the Rae Committee was formed, the Parliament of New South Wales enacted s 75A of the Securities Industry Act 1970 (NSW), which created the offence of insider trading where a person, through his or her association with a corporation, had 'knowledge of specific information relating to the corporation' and acted on that information for his or her own benefit or to enable another person to obtain an advantage through the use of the information in question.
In October 1989, the Standing Committee on Legal and Constitutional Affairs of the House of Representatives of the Commonwealth Parliament published a report (the Griffiths Report) on insider trading entitled 'Fair Shares for All: Insider Trading in Australia'. The Griffiths Report resulted in the enactment of the Corporations Legislation Amendment Act 1991 (Cth). This statute amended the provisions in the Corporations Act 1989 (Cth), the Corporations Law and the Australian Securities Commission Act 1989 (Cth) in relation to the regulation of insider trading. The Corporations Legislation Amendment Act 1991 gave effect to the recommendations embodied in the Griffiths Report.

The policy rationales for prohibiting insider trading

Four policy rationales have been advanced for prohibiting insider trading. The justifications are based on fiduciary duty, misappropriation of information, market fairness and market efficiency. See R v Firns [2001] NSWCCA 191; (2001) 51 NSWLR 548 [40] ‑ [44] (Mason P, Hidden J agreeing); the Griffiths Report par 3.1; Mannolini J, 'Insider Trading - the Need for Conceptual Clarity' (1996) 14 Company and Securities Law Journal 151, 152 ‑ 155; Jacobs A, 'Time is Money: Insider Trading from a Globalisation Perspective' (2005) 23 Company and Securities Law Journal 231, 232 ‑ 235; Pompilio D, 'On the Reach of Insider Trading Law' (2007) 25 Company and Securities Law Journal 467, 468 ‑ 470.
The fiduciary duty rationale asserts that a person who owes a fiduciary duty to a corporation (for example, a director) should not make a personal profit or avoid a personal loss by trading in the corporation's securities when he or she is in possession of confidential price‑sensitive information owned by the corporation, because the use of the information for this purpose involves an abuse of trust.
The misappropriation rationale is, in essence, an extension of the fiduciary duty rationale. It is based on the proposition that a corporation's confidential price‑sensitive information is the corporation's property and a person in a fiduciary relationship with the corporation should not misappropriate that property to trade in the corporation's securities or any other corporation's securities for the purpose of making a personal profit or avoiding a personal loss. According to this rationale, the prohibition on insider trading should extend not merely to fiduciaries, but also to people who receive confidential price‑sensitive information from a fiduciary.
The market fairness rationale asserts that each participant in the securities market should have equal opportunity to obtain information relating to investment decisions in the securities market. There is inherent unfairness where a person in possession of confidential price‑sensitive information takes advantage of that information by dealing in securities in the knowledge that the information in question is unavailable to those with whom he or she is dealing. See In re Cady, Roberts & Co 40 SEC 907 (1961), 912. See also Brudney V, 'Insiders, Outsiders, and Informational Advantages under the Federal Securities Laws' (1979) 93 Harvard Law Review, 322, where it is said:
The inability of a public investor with whom an insider transacts on inside information ever lawfully to erode the insider's informational advantage generates a sense of unfairness. The insider has acquired from the corporation relevant and material corporate information and those with whom he deals cannot acquire it from the corporation lawfully, at least [not] without the corporation's consent, which the insider has reason to know has not been given and will not be given. Allowing the insider the informational advantage in dealing with outsiders is thought to be 'unfair,' in the language of Cady, Roberts, presumably because he has a lawful monopoly on access to the information involved. The unfairness is not a function merely of possessing more information ‑ outsiders may possess more information than other outsiders by reason of their diligence or zeal ‑ but of the fact that it is an advantage which cannot be competed away since it depends upon a lawful privilege to which an outsider cannot acquire access (346). (emphasis added)
According to the market fairness rationale, a person in possession of confidential price‑sensitive information should not be permitted to trade in securities of the corporation in question until the information has been publicly disclosed. This prohibition should apply irrespective of the source of the information which the person possesses and irrespective of the presence or absence of any connection or association between the person and the relevant corporation. In its Insider Trading Discussion Paper (June 2001), the Companies and Securities Advisory Committee said in relation to the notion of market fairness in the present context:
All market participants bear trading and other risks in their market dealings. These risks include that other participants have better skills to analyse the market, have access to better market research or respond more quickly to information as it comes into the public domain. Market participants with superior skill, time or commitment will therefore inevitably have a trading advantage.
Market fairness does not require the elimination of these risks or advantages. Likewise, market participants should not be discouraged from conducting research and analysis, which promote the efficiency of these markets. Indeed, skill, acumen and diligence should be encouraged. However, insider trading deals with situations where market participants who hold confidential price‑sensitive information can take the premium from trading without the same risks that are run by other market participants who cannot gain access to that information by ordinary research, skill or analysis [1.20 ‑ 1.21]. (emphasis added)
The market efficiency rationale is based on the proposition that the integrity of the securities market is damaged by insider trading. This rationale asserts that insider trading results in delays in the disclosure of confidential price‑sensitive information, diminishes the investing public's confidence in the securities market, and reduces the incentive for Australian and international investors to buy and sell securities. These matters, in turn, adversely affect the overall liquidity and fundraising functions of the financial markets. The market efficiency rationale focuses upon the impact of insider trading on the securities and financial markets.
In R v Staines [1997] 2 Cr App R 426, Lord Bingham of Cornhill, in delivering the reasons of the Court of Appeal (Criminal Division), explained the unfairness of insider trading and its impact on the integrity of the securities market, as follows:
It is a familiar, if not a necessary, feature of capitalist society that there should be a market in publicly quoted securities which permits members of the public, whether corporate or individual, to buy and sell. The integrity of the market depends on equality of knowledge, since fair operation of the market is jeopardised if those who are 'in the know' (often called 'market insiders') can exploit information for their personal advantage which they have obtained in the course of their professional activities when such information is unavailable to others. It is, for example, obviously unfair if an officer of a company or a professional adviser, who obtains information that the prospects of a company are poor, is enabled to sell securities he owns in the company so as to avoid loss which other shareholders will sustain. Conversely, it is unfair if an officer of a company or a professional adviser obtains information that the market price in securities of a company is likely to rise and is so enabled to buy in order that he may personally profit from an increase in the market price. A paradigm example of the latter situation occurs where Company A proposes to make an offer for the share capital of Company B, particularly if the shareholders in Company B are expected to decline the offer. A hostile takeover bid may then be likely to ensue, with the predictable effect of driving upwards the market price of the shares in Company B. That is an obvious advantage to the shareholders in Company B and gives an opportunity to profit by buying or increasing the holding of shares in Company B. Anyone who is in a position to anticipate the upward movement of shares in Company B by buying or increasing a holding of shares in Company B before news of the impending offer becomes known to the general public, may expect to make a personal profit which may be significant. That is what is meant by insider dealing, which distorts the orderly and fair operation of the market (430).

The policy rationale for the insider trading prohibitions in the Act

The Griffiths Report said it was necessary, in determining the adequacy of the legislative and administrative controls over insider trading, to consider the rationale for having such controls [3.1.1]. After reviewing the various rationales for prohibiting insider trading, the committee rejected the idea that insider trading promotes market efficiency or that it is a legitimate reward for enterprise. It also rejected the suggestion that the scope of insider trading prohibitions should be limited by the fiduciary duty or misappropriation rationales. The committee decided that the rationale for legislative and administrative controls over insider trading was the necessity to guarantee investor confidence in the integrity of the securities market; that is, the market fairness and the market efficiency rationales [3.3.4] ‑ [3.3.6]. The Griffiths Report said:
Accordingly, the Committee confirms the principles adopted in 1981 by the Committee of Inquiry into the Australian Financial System (the Campbell Committee) as a basis for the prohibition of insider trading:
'The object of restrictions on insider trading is to ensure that the securities market operates freely and fairly, with all participants having equal access to relevant information. Investor confidence, and thus the ability of the market to mobilise savings, depends importantly on the prevention of the improper use of confidential information (Australian Financial System, Final Report of the Committee of Inquiry, AGPS, Canberra, 1981, p 382)' [3.3.6].
These views in the Griffiths Report were echoed in the explanatory memorandum relating to the Bill which upon enactment became the Corporations Legislation Amendment Act 1991:
Some commentators have suggested that regulation of insider trading is not necessary, as insider trading enhances the efficiency of the securities market through the faster dissemination of information. The Government's policy view is, however, that it is necessary to control insider trading to protect investors and make it attractive for them to provide funds to the issuers of securities, for the greater and more efficient development of Australia's resources. The effects of insider trading on investor confidence are regarded as outweighing any efficiencies arising from the faster dissemination of information which some commentators allege would accrue if insider trading were decriminalised [307]. (emphasis added)

The provisions of the Act relevant to these appeals

At material times, pt 7.10 of the Act comprised s 1040A ‑ s 1044A, and was headed 'Market misconduct and other prohibited conduct relating to financial products and financial services'.
The insider trading prohibitions were contained in div 3 of pt 7.10. Division 2 dealt with various kinds of prohibited conduct, other than insider trading. In general, div 2 was concerned with false, fictitious, misleading, deceptive or fraudulent conduct in relation to securities, including market manipulation, market rigging or the making of false or misleading statements in relation to securities.
At material times, div 3 comprised s 1042A ‑ s 1043O.
Section 1042A provided, relevantly, that in div 3:
'Division 3 financial products' means:
(a)securities; or
(b)derivatives; or
(c)managed investment products; or
(d)superannuation products, other than those prescribed by regulations made for the purposes of this paragraph; or
(e)any other financial products that are able to be traded on a financial market.
'generally available', in relation to information, has the meaning given by section 1042C.
'information' includes:
(a)matters of supposition and other matters that are insufficiently definite to warrant being made known to the public; and
(b)matters relating to the intentions, or likely intentions, of a person.
'inside information' means information in relation to which the following paragraphs are satisfied:
(a)the information is not generally available;
(b)if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of particular Division 3 financial products.
'material effect', in relation to a reasonable person's expectations of the effect of information on the price or value of Division 3 financial products, has the meaning given by section 1042D.
…
'relevant Division 3 financial products', in relation to particular inside information, means the Division 3 financial products referred to in paragraph (b) of the definition of 'inside information'.
Section 1042C was concerned with when information was 'generally available'. It read:
(1)For the purposes of this Division, information is 'generally available' if:
(a)it consists of readily observable matter; or
(b)both of 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 Division 3 financial products of a kind whose price might be affected by the information; and
(ii)since it was made known, a reasonable period for it to be disseminated among such persons has elapsed; or
(c)it consists of deductions, conclusions or inferences made or drawn from either or both of the following:
(i)information referred to in paragraph (a);
(ii)information made known as mentioned in subparagraph (b)(i).
(2)None of the paragraphs of subsection (1) limits the generality of any of the other paragraphs of that subsection.
Section 1042D specified when a reasonable person would take information to have a 'material effect' on the price or value of div 3 financial products. It stated that, for the purposes of div 3, 'a reasonable person would be taken to expect information to have a "material effect" on the price or value of particular Division 3 financial products if (and only if) the information would, or would be likely to, influence persons who commonly acquire Division 3 financial products in deciding whether or not to acquire or dispose of the first‑mentioned financial products'.
Section 1043A prohibited certain specified conduct by a person who was in possession of inside information. It provided:
(1)Subject to this Subdivision, if:
(a)a person ('the insider') possesses inside information; and
(b)the insider knows, or ought reasonably to know, that the matters specified in paragraphs (a) and (b) of the definition of 'inside information' in section 1042A are satisfied in relation to the information;
the insider must not (whether as principal or agent):
(c)apply for, acquire, or dispose of, relevant Division 3 financial products, or enter into an agreement to apply for, acquire, or dispose of, relevant Division 3 financial products; or
(d)procure another person to apply for, acquire, or dispose of, relevant Division 3 financial products, or enter into an agreement to apply for, acquire, or dispose of, relevant Division 3 financial products.
…
(2)Subject to this Subdivision, if:
(a)a person ('the insider') possesses inside information; and
(b)the insider knows, or ought reasonably to know, that the matters specified in paragraphs (a) and (b) of the definition of 'inside information' in section 1042A are satisfied in relation to the information; and
(c)relevant Division 3 financial products are able to be traded on a financial market operated in this jurisdiction;
the insider must not, directly or indirectly, communicate the information, or cause the information to be communicated, to another person if the insider knows, or ought reasonably to know, that the other person would or would be likely to:
(d)apply for, acquire, or dispose of, relevant Division 3 financial products, or enter into an agreement to apply for, acquire, or dispose of, relevant Division 3 financial products; or
(e)procure another person to apply for, acquire, or dispose of, relevant Division 3 financial products, or enter into an agreement to apply for, acquire, or dispose of, relevant Division 3 financial products.
…
(3)For the purposes of the application of the Criminal Code in relation to an offence based on subsection (1) or (2):
(a)paragraph (1)(a) is a physical element, the fault element for which is as specified in paragraph (1)(b); and
(b)paragraph (2)(a) is a physical element, the fault element for which is as specified in paragraph (2)(b).
Section 1043M specified, amongst other things, various defences to a prosecution for an offence. It is unnecessary to set out the defences.

The elements of the substantive offence of insider trading contrary to s 1043A(1)

The substantive offence created by s 1043A(1), read with s 1311(1), comprises, relevantly to these appeals, the following elements.
First, a person (the insider) possesses 'information'. Secondly, the 'information' is not 'generally available'. Thirdly, if the 'information' in question were 'generally available', a reasonable person would expect the 'information' to have a material effect on the price or value of the securities in question. Fourthly, the insider applies for, acquires, or disposes of, securities, or procures another person to apply for, acquire, or dispose of securities. Fifthly, the insider knows, or ought reasonably to know, that the 'information' is not 'generally available' and that, if it were 'generally available', a reasonable person would expect it to have a material effect on the price or value of the relevant securities.
The prosecution must prove each of the elements of the offence beyond reasonable doubt.

The legislative history relating to the definition of 'information' in s 1042A

The legislative history relating to the definition of 'information' in s 1042A was examined by Jacobson J in Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963; (2007) 160 FCR 35 [526] ‑ [544].
As I have mentioned, the offence of insider trading created by s 75A of the Securities Industry Act 1970 (NSW) was concerned with whether a person, through his or her association with a corporation, had 'knowledge of specific information relating to the corporation'.
In Ryan v Triguboff [1976] 1 NSWLR 588, Lee J held that the term 'specific information', for the purposes of s 75A, connoted not merely that the information was 'precisely definable', but that 'its entire content [could] be precisely and unequivocally expressed and discerned' (596). See also Green v Charterhouse Group of Canada Ltd [1973] 2 OR 677; (1973) 35 DLR (3d) 161, where Grant J decided that information which was preliminary and uncertain was not 'specific confidential information' within s 113 of the Securities Act 1966 (Ontario) [142].
In Commissioner for Corporate Affairs v Green [1978] VR 505, McInerney J considered the meaning to be ascribed to the word 'information' in s 124(2) of the Companies Act 1961 (Vic), which provided, relevantly, that 'an officer of a corporation shall not make improper use of information acquired by virtue of his position as such an officer'. His Honour held that 'information', for the purposes of s 124(2), was not restricted only to 'specific information' or factual knowledge of a concrete kind, but may include information garnered from a hint or a veiled suggestion. After referring to Ryan and Green v Charterhouse and distinguishing those decisions on the basis of the different statutory text, his Honour said:
I am reluctant to import into s 124(2) a word which is not there. Our section does not require that the information be 'specific'. In many cases a hint may suggest information or may enable an inference to be drawn as to information. Information about impending stock movements or share movements may often be veiled. Discussion concerning such a movement may often take the form of 'mooting' but not deciding a matter (511).
In Hooker Investments Pty Ltd v Baring Bros Halkerston & Partners Securities Ltd (1986) 10 ACLR 462, Young J considered the meaning of 'information' in s 128(1) of the Securities Industry Act 1980 (NSW). Section 128(1) read:
A person who is, or at any time in the preceding 6 months has been, connected with a body corporate shall not deal in any securities of that body corporate if by reason of his so being, or having been, connected with that body corporate he is in possession of information that is not generally available but, if it were, would be likely materially to affect the price of those securities.
The Act did not define 'information'.
Young J made these observations about what was meant by 'information' in s 128(1) in the course of deciding to strike out the plaintiff's statement of claim and grant it leave to file a further statement of claim within 14 days:
The next question is what is meant by 'information'? In the Ryan case that I referred to earlier and in the Canadian cases to which I made reference, information was held to be material which itself affected the price, not information which a person could use to make calculations. In Victoria in [Commissioner for Corporate Affairs v Green [1978] VR 505] this line of reasoning was not followed and it seems to me that in view of the amendments made in 1980 that the definition given to information by McInerney J in that case comes close to what should be adopted here; that is, the factual knowledge either of a concrete kind or that obtained by means of a hint or veiled suggestion from which one can impute other knowledge. I wonder a bit, however, whether it is safe to equate information and knowledge. Information is often defined as knowledge acquired, derived or inculcated by observation, reading or study or by what one is told; but in some cases information implies lack of knowledge such as, for instance, where one says he is informed of a thing but he does not know whether or not his information is true: see State v Simpson 118 SW 1187 at 1188.
To my mind information in sub-s (1) goes further than knowledge and includes the situation where someone has been informed of something which he does not know to be true nor does he care whether it is true or not. In other words, information may include a rumour that something has happened with respect to a company which a person neither believes nor disbelieves (467 ‑ 468). (emphasis added)
The Corporations Legislation Amendment Act 1991 introduced a new definition of 'information' which did not require that information be 'specific'. The new definition in s 1002A(1) and, later, in s 1042A provided that 'information' includes matters of supposition and other matters that are insufficiently definite to warrant being made known to the public (par (a)) and matters relating to the intentions, or likely intentions, of a person (par (b)).
The explanatory memorandum to the Bill which upon enactment became the Corporations Legislation Amendment Act 1991 made these comments in relation to the new definition of 'information':
Doubt was also expressed as to whether the term 'information' would be interpreted as encompassing supposition, intentions and other matter not sufficiently certain to require its release to the public, notwithstanding the broad interpretation given to the term in Commissioner for Corporate Affairs v Green [1978] VR 505 at 511.
Proposed amendment
Proposed section 1002A(1) provides definitions of 'information' and 'securities', in relation to a body corporate, to apply for the purposes of the insider trading provisions. The definition of information is an inclusive one, with information being taken to include supposition and other matters insufficiently definite to warrant being made known to the public and matters relating to the intentions, or likely intentions, of a person [319] ‑ [320].
In R v Rivkin (Unreported, NSWSC, 70065 of 2002, 10 April 2003), the accused had been charged with an offence of insider trading under s 1002G of the Act. Whealy J heard an application made on behalf of the accused in which it was argued, relevantly, that the indictment, together with the particulars, disclosed no breach of the insider trading prohibitions because the particularised information was in fact not 'information' within the meaning of the definition in s 1002A [43]. His Honour ruled against this argument and, in his reasons, expressed the 'tentative view' that a statement of a falsehood may nevertheless come within the concept of information [50]. His Honour's full reasons on this point were as follows:
While it is not necessary for me to express a concluded opinion, nor indeed is it desirable to do so for the purposes of the present application, I must say that I incline to the tentative view that a statement as to the existence of a state of affairs, even though it may not be precisely accurate ‑ even though it might not be accurate at all ‑ may nevertheless be comprehended within the concept of information for the purposes of the insider trading legislation. That is, information which is confidential, price sensitive and which may not be used in the prohibited manner may nevertheless extend to inaccurate or even baseless information [50]. (emphasis added)
In Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 205 FLR 217, Barr and Hall JJ made the following comments about 'information' for the purposes of the insider trading prohibitions.
First, the definition of 'information' in s 1002A(1) (now in s 1042A) is inclusive rather than comprehensive, but expressly includes 'matters relating to the intentions, or the likely intentions, of a person'. The intention of a natural person or a corporation may be held with 'varying degrees of certainty' [411]. Further:
The existence of such an intention is information. If it is passed on to others, it is information in the hands of the recipients. However, the intention may be inferred by others from the conduct of the directors. The inference may be drawn with varying degrees of certainty as to its accuracy. Nevertheless, such an inference remains information. Indeed, there is no clear distinction between information conveyed orally and by conduct. In the case where the director tells a third party of his or her intentions, the information is in fact inferred not merely from receiving the communication, but from forming a belief as to its veracity [411].
Secondly, as noted by McInerney J in Commissionerfor CorporateAffairs vGreen, the kind of information which may affect a securities market may be 'quite imprecise' [415]. However:
[T]he source of the rumour may be of very considerable importance, despite the vagueness of the known details. If the information in question is so imprecise that it is not likely to affect the market, the charge will not be made out. But if it is sufficient to satisfy that element of the offence, there is no reason to import into the statutory definition an additional requirement of specificity or precision [415]. (emphasis added)
An application by the unsuccessful appellant in Hannes (No 2) for special leave to appeal to the High Court was dismissed. See Hannes v The Queen [2008] HCA Trans 133.
In Citigroup (No 4), Jacobson J expressed these views about the definition of 'information' in s 1042A:
(a)information can be non‑specific, and what is drawn from it, by way of inference, is also 'information', as defined [537];
(b)information, whether in the form of a hint or a rumour, must be communicated orally or by conduct, for example, 'by observation of the words or conduct of others' [537];
(c)an inference may be a supposition or a matter of supposition and, therefore, 'information', as defined; the supposition would be that which the person concerned drew from the hint or other non‑specific information received from another [538];
(d)although a hint or other non‑specific information must be communicated by words or conduct, the inference or supposition drawn from it is 'information', as defined [542];
(e)the kind of information which may affect a securities market may be quite imprecise, but if the information in question is so imprecise that it is unlikely to affect the market, a charge of insider trading in relation to the information will not be made out [543].

The nature of 'information' for the purposes of the continuous disclosure requirements of the Act compared to the nature of 'information' for the purposes of the insider trading prohibitions

As Mason P noted in Firns, Australian corporations law and practice seek to attack insider trading through the continuous disclosure provisions of the Act and the ASX listing rules [63].
At the material time, the continuous disclosure provisions in s 675, s 676 and s 677 of the Act, as well as the insider trading prohibitions, applied to 'information' that was not generally available and that a reasonable person would expect, if it were generally available, to have a material effect on the price or value of the securities in question.
As I have mentioned, 'information' was defined, for the purposes of the insider trading prohibitions, to include matters of supposition and matters relating to intentions.
By contrast, this definition of 'information' did not apply for the purposes of the continuous disclosure provisions. The definition of 'information' in s 9 of the Act (which merely provided that 'information' included complaint) applied for the purposes of s 675, s 676 and s 677. Further, the ASX listing rules contained exemptions in relation to the continuous disclosure provisions which did not apply to the insider trading prohibitions.

United States decisions on the meaning of 'information' in the context of the United States insider trading prohibitions

The Securities Exchange Act 1934, 48 Stat 881, 15 USC chap 2B (the 1934 Act) was intended primarily to protect investors against manipulation of stock prices by regulating securities transactions and imposing regular reporting requirements on companies listed on national securities exchanges. See Ernst & Ernst v Hochfelder 96 S Ct 1375 (1976), 1382.
Section 10(b) of the 1934 Act provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange ‑
…
(b)To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities‑based swap agreement, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
…
Rules promulgated under subsection (b) that prohibit fraud, manipulation, or insider trading (but not rules imposing or specifying reporting or recordkeeping requirements, procedures, or standards as prophylactic measures against fraud, manipulation, or insider trading), and judicial precedents decided under subsection (b) and rules promulgated thereunder that prohibit fraud, manipulation, or insider trading, shall apply to security‑based swap agreements to the same extent as they apply to securities. Judicial precedents decided under section 17(a) of the Securities Act of 1933 and sections 9, 15, 16, 20, and 21A of this title, and judicial precedents decided under applicable rules promulgated under such sections, shall apply to security‑based swap agreements to the same extent as they apply to securities.
By r 10b‑5, 17 CFR 240.10b‑5:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a)To employ any device, scheme, or artifice to defraud,
(b)To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c)To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
in connection with the purchase or sale of any security.
Rule 10b‑5 was promulgated under the grant of authority given by Congress to the Securities and Exchange Commission in s 10(b) of the 1934 Act.
To establish that a defendant has breached s 10(b) and r 10b‑5, the Securities and Exchange Commission must prove:
(1) a misrepresentation, or an omission (where there is a duty to speak), or other fraudulent device; (2) in connection with the purchase or sale of any security; (3) scienter by the defendant in making that misrepresentation or omission; and (4) materiality of that misrepresentation or omission.
See SEC v Tome 638 F Supp 596 (SDNY 1986), 620 (internal citations omitted).
The United States laws on insider trading have developed through judicial interpretation of the general anti‑fraud provisions embodied in r 10b ‑ 5, which does not expressly refer to insider trading.
These insider trading laws are based on the fiduciary duty and misappropriation rationales. In United States v Cusimano 123 F 3d 83 (2nd Cir 1997), the United States Court of Appeals, Second Circuit, said in relation to an appeal by the defendant‑appellant Flanagan, who had been convicted of insider trading charges:
Flanagan's conviction for insider trading, both as a violation of § 10(b) and Rule 10b-5 and as an object of the conspiracy charge, was based on the so‑called 'misappropriation theory' of insider trading. In contrast to the traditional theory of insider trading, under which a corporate insider trades in the securities of his own corporation on the basis of material, non-public information, under the misappropriation theory § 10(b) and Rule 10b-5 are violated whenever a person trades while in knowing possession of material, non-public information that has been gained in violation of a fiduciary duty to its source. Despite our Circuit's long-standing acceptance of the misappropriation theory of insider trading liability, Flanagan argues that we should reconsider its wisdom, citing two cases from other Circuits that held that the misappropriation theory does not support liability under § 10(b) and Rule 10b-5. We can quickly dispose of Flanagan's argument. Subsequent to briefing and oral argument in this case, the Supreme Court reversed the Eighth Circuit's judgment in O'Hagan and endorsed the misappropriation theory of insider trading liability. Accordingly, we decline Flanagan's request that we revisit the issue (87 ‑ 88). (internal citations omitted)
A person, referred to in the United States cases as the primary insider, will violate s 10(b) and r 10b-5 where he or she misappropriates material non‑public information in breach of a fiduciary duty or similar relationship of trust and confidence and uses that information in a securities transaction (United States v Teicher 987 F 2d 112 (2nd Cir 1993), 119 (quoting United States v Chestman 947 F 2d 551 (2nd Cir 1991), 556)).
A person who engages in a securities transaction while in knowing possession of material non‑public information which has been obtained by another in breach of a fiduciary duty or similar relationship of trust and confidence (and passed directly or indirectly to the first‑mentioned person) is referred to in the United States cases as a 'tippee' or secondary insider.
In Bateman Eichler, Hill Richards, Inc v Berner 105 S Ct 2622 (1985), the question at issue was whether the in pari delicto defence at common law barred a private action for damages under the United Stated federal securities laws against corporate insiders and broker‑dealers who allegedly fraudulently induced investors to purchase securities by misrepresenting that they were conveying material non‑public information about the issuer. The Supreme Court of the United States held that there was no basis summarily for applying the in pari delicto defence. Brennan J, who delivered the opinion of the Supreme Court, explained the circumstances in which a tippee will infringe s 10(b) and r 10b‑5, and compared the relative culpability of a tippee on the one hand and a primary insider on the other:
The Court has made clear in recent Terms that a tippee's use of material nonpublic information does not violate § 10(b) and Rule 10b‑5 unless the tippee owes a corresponding duty to disclose the information. That duty typically is 'derivative from … the insider's duty.' In other words, '[t]he tippee's obligation has been viewed as arising from his role as a participant after the fact in the insider's breach of a fiduciary duty' towards corporate shareholders. In the context of insider trading, we do not believe that a person whose liability is solely derivative can be said to be as culpable as one whose breach of duty gave rise to that liability in the first place.
Moreover, insiders and broker‑dealers who selectively disclose material nonpublic information commit a potentially broader range of violations than do tippees who trade on the basis of that information. A tippee trading on inside information will in many circumstances be guilty of fraud against individual shareholders, a violation for which the tipper shares responsibility. But the insider, in disclosing such information, also frequently breaches fiduciary duties toward the issuer itself. And in cases where the tipper intentionally conveys false or materially incomplete information to the tippee, the tipper commits an additional violation: fraud against the tippee (2630). (internal citations omitted)
The nature of non‑public 'information', for the purposes of the United States laws on insider trading, has been considered in several cases.
In SEC v Monarch Fund 608 F 2d 938 (2nd Cir 1979) it was held that, to constitute non‑public information, information must be specific and more private than general rumour (942 ‑ 943).
In Bateman Eichler, Brennan J said that the material before the court strongly suggested that much of the information conveyed to the respondent investors was true, but that it was deceptive by virtue of exaggeration and the failure to include additional information (2629, fn 21). His Honour continued:
If this was the case, and if the respondents otherwise acquired a derivative duty within the meaning of Dirks, there is no question that their trading on the basis of this information violated the securities laws. If the information was entirely false, the SEC and Bateman Eichler contend that the respondents, by trading on what they believed was material nonpublic information, are nevertheless guilty of at least an attempted violation of the securities laws if they otherwise believed that Neadeau had breached his fiduciary duties. This view has drawn substantial support among the lower courts. See, eg, Tarasi v Pittsburgh National Bank 555 F 2d at 1159‑1160; Kuehnert v Texstar Corp 412 F 2d at 704; Grumet v Shearson/Amercian Express Inc 564 F Supp at 340. The respondents, on the other hand, contend that they could not have inherited any duty to disclose false information, and that the case is properly viewed as governed by the doctrine of legal impossibility, which would bar any liability, rather than factual impossibility, which would permit liability on an attempt theory. See also Note, The Availability of the In Pari Delicto Defence in Tippee‑Tipper Rule 10b‑5 Actions after Dirks v SEC, 62 Wash U LQ 519, 540‑542 (1984). Because this issue has not been fully briefed and was not considered by the courts below, we express no views on it and simply proceed on the assumption that the respondents' activities rendered them in delicto (2629 ‑ 2630, fn 21). (original emphasis)
In United States v Mylett 97 F 3d 663 (2nd Cir 1996), the United States Court of Appeals, Second Circuit, made these observations about the nature of non‑public information:
We do not today hold that any predictions made by an insider can constitute the basis for insider trading simply because a tippee relies upon them and their source, and they subsequently come true. It may well be that insider trading has not occurred, for example, in situations in which an insider has made categorical statements that are completely without foundation and these are used successfully by a trader. We need go nowhere near such an extreme holding, for here the statement made by the insider was qualified, supported, and credible (667). (emphasis added)
See also SEC v Thrasher 152 F Supp 2d 291 (SDNY 2001) [7] ‑ [8]; In re Motel 6 Securities Litigation 161 F Supp 2d 227 (2001) [11].

The merits of the Crown's grounds of appeal

The definition of 'information' in s 1002A(1), which applied at material times before 11 March 2002, and the definition of 'information' in s 1042A, which applied on and at material times after 11 March 2002, are identical. The proper construction of the definition is critical to the resolution of the Crown's grounds of appeal.
As McHugh J noted in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, the function of a definition is not to enact substantive law, but to provide aid in construing the statute [103]. His Honour added:
Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment [103].
The modern approach to statutory construction is purposive. The statutory text is the surest guide to the Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 353 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 84 ALJR 683 [82] (Crennan & Bell JJ).
At common law (that is, apart from any reliance on s 15AB of the Acts Interpretation Act 1901 (Cth)), a court is permitted, in construing a statutory provision, to have regard to the words used by the Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 ‑ 113 (McHugh J).
Section 1042A provides that, in div 3 of pt 7.10, 'information' includes:
(a)matters of supposition and other matters that are insufficiently definite to warrant being made known to the public; and
(b)matters relating to the intentions, or likely intentions, of a person.
The word 'information', in its ordinary meaning, has a broad connotation. It includes:
(a)according to The Macquarie Dictionary (3rd ed, 1997), '1. knowledge communicated or received concerning some fact or circumstance; news. 2. knowledge on various subjects, however acquired'; and
(b)according to The Oxford English Dictionary (2nd ed, 1989), '3.a. Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told'.
In Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56; (2001) 105 FCR 212, a Full Court of the Federal Court (Whitlam, Tamberlin & Sackville JJ) referred to these definitions and said, correctly in my respectful opinion, that 'information' is capable of different shades of meaning, depending on the context [18].
Paragraph (a) of the definition of 'information' in s 1042A includes within that concept matters of 'supposition' and other matters that are 'insufficiently definite to warrant being made known to the public'.
The word 'supposition' includes an assumption, a hypothesis and a matter which is accepted or received as true, without positive knowledge and perhaps erroneously. See the definitions of 'supposition' in The Macquarie Dictionary (3rd ed, 1997) and The Shorter Oxford English Dictionary (5th ed, 2002). Invariably (if not always), an assumption, a hypothesis or a matter which is accepted or received as true, without positive knowledge and perhaps erroneously, relating to a corporation or its affairs would be insufficiently definite to warrant being made known to the public.
Paragraph (b) of the definition of 'information' in s 1042A includes within that concept matters relating to the 'intentions' of a person and, also, matters relating to the 'likely intentions' of a person. A person's intentions or likely intentions relating to a corporation or its affairs would include the person's aim, purpose or design or probable aim, purpose or design as to the corporation or its affairs.
The word 'include' primarily has an expansive function. Usually, a definition which states that a word includes specified matters reveals a Parliamentary intention to add the meanings given in the definition to the ordinary meaning of the word. Often, the added meaning is not otherwise within the ordinary meaning. The ordinary meaning is amplified to the extent specified. See Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342, 353 (McInerney J).
Sometimes, however, 'includes' has been taken to have an exhaustive function where it appears from the context that the Parliamentary intention was to confine the ordinary meaning of the word to the meaning conveyed by the matters specified in the definition.
In Hook v Rolfe (1986) 7 NSWLR 40, 49 ‑ 50, Samuels JA said:
'Includes' is a word of extension and not of restrictive definition. In R v Hermann (1879) 4 QBD 284 at 288, Lord Coleridge CJ observed:
' … The words "shall include" are not identical with, or put for "shall mean". The definition does not purport to be complete or exhaustive. By no means does it exclude any interpretation which the sections of the Act would otherwise have, it merely provides that certain specified cases shall be included.'
Hence 'includes' denotes a legislative intention to enlarge the ordinary meaning of the word defined, unless, perhaps, the items included in the definition would fall within it. In that case the definition, though introduced by the word 'includes', might be regarded as exhaustive; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 and R v McN [1963] SR (NSW) 186; 80 WN 608 are cases in which different results followed the application of Lord Watson's latitudinarian test in Dilworth v Commissioner of Stamps [1899] AC 99 at 105 ‑ 106. Dr D C Pearce in his Statutory Interpretation in Australia, 2nd ed (1981) at 115 ‑ 118, favours the view that 'includes' should not generally be regarded as introducing an exhaustive definition, and quotes from Lord Selborne LC in Robinson v Barton-Eccles Local Board (1883) 8 App Cas 798 at 801:
' … An interpretation clause of this kind [ie one which uses the word "includes"] is not meant to prevent the word from receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary, to be applied to some things to which it would not ordinarily be applicable.'
See also R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77 [45] ‑ [58] (Malcolm CJ).

b.The stock market expected AdultShop to post a full year turnover of about $40 million, but AdultShop was going to publish an increased forecast turnover of over $100 million;
c.The sources of the information at sub-paragraphs a. and b. above were 'the powers that be' in relation to AdultShop.

In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.The information at sub‑paragraphs a. and b. [directly] above had been obtained on or about 4 January 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confident.

Count 7
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 8
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 9
In relation to AdultShop, the information of which the two accused were possessed was to the effect that:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
g.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 9A
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
g.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 9B
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for Adultshop for the 2002 financial year had risen from between $30 million and $50 million to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
g.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 9C
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
g.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 9D
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
g.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 9E
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
g.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 10
In relation to My Casino, the accused Mansfield was possessed of information to the following effect:
a.Michael O'Donnell, the Chairman of My Casino had identified a deal which would cost no money upfront;
b.The said deal would give an instant turnover of $30 million;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 13 February 2002 as a result of [a] private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 11
In relation to My Casino, the accused Mansfield was possessed of information to the following effect:
a.Michael O'Donnell, the Chairman of My Casino had identified a deal which would cost no money upfront;
b.The said deal would give an instant turnover of $30 million;
c.Michael O'Donnell, the Chairman of My Casino had a huge potential deal on the table and had spent all week on it;
d.The information at sub-paragraphs a. and b. above had been obtained on or about 13 February 2002 as a result of [a] private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant;
e.The information at sub-paragraph c. above had been obtained on or about 19 February 2002 as a result of [a] private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 12
In relation to My Casino, the information of which the two accused were possessed was to the effect that:
a.Negotiations were taking place concerning a deal involving a business known as Europcar;
b.Michael O'Donnell, the Chairman of My Casino was going to release information concerning the abovementioned deal to the market within days;
c.The information at sub‑paragraphs a. and b. above had been obtained on or about 27 February 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 12A
In relation to My Casino, the accused Kizon was possessed of information to the following effect:
a.Negotiations were taking place concerning a deal involving a business known as Europcar;
b.Michael O'Donnell, the Chairman of My Casino was going to release information concerning the abovementioned deal to the market within days;
c.The information at sub‑paragraphs a. and b. above had been obtained on or about 27 February 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 12B
In relation to My Casino, the accused Kizon was possessed of information to the following effect:
a.Negotiations were taking place concerning a deal involving a business known as Europcar;
b.Michael O'Donnell, the Chairman of My Casino was going to release information concerning the abovementioned deal to the market within days;
c.The information at sub‑paragraphs a. and b. above had been obtained on or about 27 February 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 12C
In relation to My Casino, the accused Kizon was possessed of information to the following effect:
a.Negotiations were taking place concerning a deal involving a business known as Europcar;
b.Michael O'Donnell, the Chairman of My Casino was going to release information concerning the abovementioned deal to the market within days;
c.The information at sub‑paragraphs a. and b. above had been obtained on or about 27 February 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 13
In relation to My Casino, the information of which the two accused were possessed was to the effect that:
a.Negotiations were taking place concerning a deal involving a business known as Europcar;
b.There were about five such deals under consideration;
c.Michael O'Donnell, the Chairman of My Casino, was of the opinion that:
i.Each deal was serious;
ii.Each deal would see the share price increase;
iii.There was no doubt that money could be made.

d.The information at sub‑paragraphs a. to c. above had been obtained on or about 7 March 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 13A
In relation to My Casino, the accused Mansfield was possessed of information to the following effect:
a.Negotiations were taking place concerning a deal involving a business known as Europcar;
b.There were about five such deals under consideration;
c.Michael O'Donnell, the Chairman of My Casino, was of the opinion that:
i.Each deal was serious;
ii.Each deal would see the share price increase;
iii.There was no doubt that money could be made.

d.The information at sub‑paragraphs a. to c. above had been obtained on or about 7 March 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 14
In relation to AdultShop, the information of which the two accused were possessed was to the effect that:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.AdultShop was intending to release to the market its profit figures for the previous six months on Monday, 18 March 2002;
g.The profit figures for the previous six months were going to be alright but would not break any records;
h.AdultShop would announce the high or big quarterly figures to the market at the end of April 2002;
i.The release at the end of April 2002 would show two quarters of good figures;
j.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
k.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
l.The information at sub-paragraphs f. to i. above had been obtained on or about 12 March 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 14A
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.AdultShop was intending to release to the market its profit figures for the previous six months on Monday, 18 March 2002;
g.The profit figures for the previous six months were going to be alright but would not break any records;
h.AdultShop would announce the high or big quarterly figures to the market at the end of April 2002;
i.The release at the end of April 2002 would show two quarters of good figures;
j.The information at sub-paragraphs a. and b. above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
k.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
l.The information at sub-paragraphs f. to i. above had been obtained on or about 12 March 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 14B
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.The expected profit for AdultShop for the 2002 financial year had risen from $3 million to $11 million;
b.The expected turnover for AdultShop for the 2002 financial year had risen from between $30 million and $50 million, to about $111 million;
c.Malcolm Day was of the opinion that the figures for AdultShop were still a good story;
d.AdultShop was getting huge figures;
e.It was expected that the market would be informed of the figures in March or April 2002;
f.AdultShop was intending to release to the market its profit figures for the previous six months on Monday, 18 March 2002;
g.The, profit figures for the previous six months were going to be alright but would not break any records;

h.AdultShop would announce the high or big quarterly figures to the market at the end of April 2002;
i.The release at the end of April 2002 would show two quarters of good figures;
j.The information at sub-paragraphs a. and b, above had been obtained on or about 4 January 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
k.The information at sub-paragraphs c. to e. above had been obtained on or about 7 February 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant;
l.The information at sub-paragraphs f. to i. above had, been obtained on or about 12 March 2002, as a result of private conversations between Malcolm Day, the Managing Director of AdultShop, and a person or persons the said Malcolm Day apparently treated as a confidant.

Count 15
In relation to My Casino the accused Mansfield was possessed of information to the following effect:
a.Negotiations were taking place concerning a $28 million deal involving an internet sports betting business;
b.The information at sub-paragraph a. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant.

Count 16
In relation to My Casino, the information of which the two accused were possessed was to the effect that:
a.Negotiations were taking place concerning a $28 million deal involving an internet sports betting business;
b.The due diligence would go forward;
c.Hans-Rudolf Moser, a Director of My Casino, had endorsed spending between $20 thousand and $50 thousand on preliminary due diligence in relation to the deal;
d.The information at sub-paragraphs a. and b. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant;
e.The information at sub-paragraph c. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Malcolm Day and a person the said Malcolm Day apparently treated as a confidant.

Count 16A
In relation to My Casino, the accused Mansfield was possessed of information to the following effect:
a.Negotiations were taking place concerning a $28 million deal involving an internet sports betting business;
b.The due diligence would go forward;
c.Hans-Rudolf Moser, a Director of My Casino, had endorsed spending between $20 thousand and $50 thousand on preliminary due diligence in relation to the deal;
d.The information at sub-paragraphs a. and b. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant;
e.The information at sub-paragraph c. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Malcolm Day and a person the said Malcolm Day apparently treated as a confidant.

Count 16B
In relation to My Casino, the accused Mansfield was possessed of information to the following effect:
a.Negotiations were taking place concerning a $28 million deal involving an internet sports betting business;
b.The due diligence would go forward;
c.Hans-Rudolf Moser, a Director of My Casino, had endorsed spending between $20 thousand and $50 thousand on preliminary due diligence in relation to the deal;
d.The information at sub-paragraphs a. and b. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant;
e.The information at sub-paragraph c. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Malcolm Day and a person the said Malcolm Day apparently treated as a confidant.

Count 17
In relation to My Casino, the information of which the two accused were possessed was to the effect that:
a.Negotiations were taking place concerning a $28 million deal involving an internet sports betting business;
b.The due diligence would go forward;
c.Hans-Rudolf Moser, a Director of My Casino, had endorsed spending between $20 thousand and $50 thousand on preliminary due diligence in relation to the deal;
d.The information at sub-paragraphs a. and b. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant;
e.The information at sub-paragraph c. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Malcolm Day and a person the said Malcolm Day apparently treated as a confidant.

Count 18
In relation to My Casino, the accused Kizon was possessed of information to the following effect:
a.Negotiations were taking place concerning a $28 million deal involving an internet sports betting business;
b.The due diligence would go forward;
c.Hans-Rudolf Moser, a Director of My Casino, had endorsed spending between $20 thousand and $50 thousand on preliminary due diligence in relation to the deal;
d.The information at sub-paragraphs a. and b. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of My Casino and a person the said Michael O'Donnell apparently treated as a confidant;
e.The information at sub-paragraph c. above had been obtained on or about 12 March 2002 as a result of [a] direct private conversation between Malcolm Day and a person the said Malcolm Day apparently treated as a confidant.

Count 19
In relation to [Euraust], formerly known as My Casino, the accused Mansfield was possessed of information to the following effect:
a.A heads of agreement had been signed for a deal concerning the acquisition of a business known as Megasports by [Euraust], formerly known as My Casino;
b.The information at sub-paragraph a. above had been obtained on or about 27 May 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of [Euraust] and a person the said Michael O'Donnell apparently treated as a confidant.

Count 20
In relation to [Euraust], formerly known as My Casino, the accused Mansfield was possessed of information to the following effect:
a.A heads of agreement had been signed for a deal concerning the acquisition of a business known as Megasports by [Euraust], formerly known as My Casino;
b.The information at sub-paragraph a. above had been obtained on or about 27 May 2002 as a result of [a] direct private conversation between Michael O'Donnell, the Chairman of [Euraust] and a person the said Michael O'Donnell apparently treated as a confidant.

Count 21
In relation to AdultShop, the information of which the two accused were possessed was to the effect that:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 21A
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 21B
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 21C
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 21D
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 21E
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 21F
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 21G
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 21H
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 22
In relation to AdultShop, the accused Kizon was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 23
In relation to AdultShop, the information of which the two accused were possessed was to the effect that:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.

Count 23A
In relation to AdultShop, the accused Mansfield was possessed of information to the following effect:
a.Packer had bought 4.9% of AdultShop;
b.The projected revenue for AdultShop for the following month would significantly exceed what had previously been forecast;
c.The information at sub-paragraphs a. and b. above had been obtained on or about 6 June 2002 as a result of [a] private conversation between Malcolm Day, the Managing Director of AdultShop, and a person the said Malcolm Day apparently treated as a confidant.