Consideration
229The circularity of the evidentiary issue is almost self-evident. As the Crown, at the appeal, sought to explain it, each of the circumstances of the conduct that gave rise to the charges in counts one to nine is to be used as coincidence evidence in count ten. Each of the conduct in counts one to eight and ten is to be used as evidence of guilt in relation to count nine; and so forth.
230In other words, on each count on the indictment, the conduct alleged in every other count will be used to prove that the trading activity engaged in by each of the co-offenders was not innocent and was engaged in at a time when the relevant co-accused had, or obtained, inside information concerning the entity in which the shares were purchased.
231It must be recalled that, with offences under this provision, the conduct of each co-accused is totally innocent in the absence of proof that the particular co-accused had possession of inside information. Usually, but not necessarily, in criminal trials coincidence evidence or tendency evidence is concerned with conduct that is, by its nature, criminal. Obvious examples are those with which the cases on tendency and similar fact evidence have largely been concerned. R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 concerned tendency evidence as to sexual assault on minors. R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 concerned drug supply. Similarly, the earlier English judgments, in pre-Evidence Act treatment of similar fact or propensity evidence dealt largely with sexual offenders: Hoch v The Queen (1998) 165 CLR 292; DPP v Kilbourne [1973] AC 729; DPP v Boardman [1975] AC 421. Noor Mohamed v The King [1949] AC 182 concerned poisoning.
232In this case, there is little or no issue as to the fact of share trading. The only issue in the proceedings is whether one of the co-accused possessed inside information and passed it to the other co-accused. Thus, the existence of other share transactions is not being used to prove that a share transaction occurred. The existence of other share transactions involving clients of the employer of one co-accused is being used to demonstrate that another count relating to another particular share transaction, involving other clients of the co-accused's employer, were occasioned as a result of the possession of inside information.
233In the absence of direct evidence as to the possession of the information of the co-accused's employer, the difficulty with such an approach is obvious. Moreover, at least arguably, it is not the coincidence that renders the state of mind more likely to exist, it is the conduct itself. The foregoing comment would suggest that the relevant notice should have referred to s 97 of the Evidence Act 1995. This last aspect matters little, because the test as to admissibility is identical.
234Nevertheless, the material that has been ruled admissible (and capable of being used for the purpose suggested) is coincidence evidence, namely evidence adduced of two or more events to prove that each of the co-accused either did a particular act or had a particular state of mind (namely, procure the other co-accused or possess the inside information) to prove that in each of the counts the particular co-accused engaged in that conduct or possessed that information. The difficulty (leaving aside certain independent evidence that is not related to the other counts) is that the two or more events are each counts in the indictment.
235In those circumstances, the communication between the co-accused and/or the purchase of shares in an entity, which was a client of the employer of one of the co-accused, is to be utilised to prove, beyond reasonable doubt, the guilt on another count and the other count is to be used to prove, beyond reasonable doubt, the earlier criminal conduct.
236Ordinarily, an inference proving, beyond reasonable doubt, an essential element or fact in the commission of an offence may be drawn from a series of circumstances that are not each proved beyond reasonable doubt: Shepherd v The Queen (1990) 175 CLR 573 at 576-577, unless the fact is an essential link in the chain of proof.
237In criminal proceedings, if there be an hypothesis inconsistent with guilt that is reasonably available from the evidence that is accepted, the jury would not be entitled to return a verdict of guilty. However, except as earlier stated, facts that have not been proved beyond reasonable doubt may be aggregated to reach a conclusion beyond reasonable doubt. That is the nature of circumstantial evidence.
238In this instance, the events, being the communication between the co-accused and the share transactions (without evidence of the possession of information), are to be used to prove the possession of information (and the conveying of that information). As a consequence, the communication between the co-accused and the share transactions, which form essential elements of the charges, are, without more, to be used to prove the further essential element of the charge, namely, the possession of the inside information.
239None of the foregoing is legally impossible or necessitates inappropriate or illogical reasoning. In some circumstances it is a usual course. For example, where a person deliberately shoots a gun and kills someone, the irrefragable inference is that there was at least an intention to cause grievous bodily harm. The state of mind is inferred from the conduct of the shooter. However, where the conduct that is engaged in is otherwise legal and rendered illegal only by the possession of certain information, to use such otherwise legal conduct to infer illegality has difficulties. Again, it is not impossible or necessarily inappropriate.
240Nevertheless, whatever be the theoretical possibility associated with the capacity to use otherwise legal activity to infer an illegal state of knowledge and illegal conduct, it creates significant difficulties in the directions that the judge is required to provide to the jury.
241Were it not for the previous judgment of this Court on the admissibility of evidence, I would consider that the evidentiary issues in this case raise grounds that might warrant leave being granted. I would hold this view even though the evidentiary issues are incapable of giving rise to a right of appeal of themselves because they inform the discretion on separate trials. However, there has already been a determination by this Court of those evidentiary issues. It is inappropriate, in those circumstances, for this Court, as presently constituted, to gainsay the view already expressed by this Court on another occasion.
242Further, the difficulties in framing an appropriate direction, to which I have referred, are to be faced by the trial judge after submissions by counsel. The trial judge has determined that such unfair prejudice can be overcome by appropriate directions.
243Although the view of a trial judge that she or he may by directions overcome or ameliorate adequately the unfair prejudice created by a joint trial of all counts requires a consideration of possible directions that the judge may provide, at the same time, it cannot be a requirement of a trial judge to frame such appropriate directions prior to, or at the time of, coming to that conclusion.
244It would be an intolerable burden on trial judges to be required to frame directions on each occasion that the question of unfair prejudice (for example, an objection to s 137 of the Evidence Act) was raised. Ordinarily, the form of directions will alter, sometimes dramatically, as the trial progresses and as the judge takes account of changes to the anticipated evidence or its perception.
245The trial judge has dealt with these matters on a number of occasions already. His Honour has an intimate knowledge of the manner in which the Crown seeks to put its case. His Honour has determined that appropriate directions are capable of being framed.
246The conduct of a trial often involves issues that are resolved between judge and counsel whilst the trial is in process. In a case such as this, the judge's proposed directions will no doubt be the subject of submissions. Any interlocutory judgment on that issue is, pursuant to s 5F of the Criminal Appeal Act, capable of application for leave to appeal. Any error of law in the directions or miscarriage of justice occasioned by inadequate directions, if either accused were convicted, can be raised at an appeal against conviction.
247Given the earlier judgment of this Court on the evidentiary issues raised, the nature of the judgment on the separation of counts in the indictment is not one that warrants interference with this exercise of discretion, because the applicants' rights to appeal any unfavourable verdict are fully protected.
248For the foregoing reasons, I join in the orders proposed by Gleeson JA.