However, the inference sought to be drawn from these transactions was not that clients of Macquarie Equities generally were being advised that a takeover was imminent, but that two or three particular clients had been advised to purchase options, as recorded on taped conversations, in which the participants were described by the Appellant as "attempting to be circumspect".
629 The difficulty with this material was that, from the Appellant's point of view, it pulled in different directions. Thus, in order to demonstrate that the information which he possessed was generally available, because it was known to analysts or brokers in Macquarie Equities, and hence to their clients, he needed to show that the evidence demonstrated a level of trading in the market place, and at prices which reflected the availability of such information. On the other hand, evidence that specific clients made highly profitable transactions, in questionable circumstances, rather suggested that some brokers may also have been prepared to make use of insider information in advising an extremely small number of clients.
630 The argument presented by the Appellant was that each of the named brokers had access to information from which they might have deduced that MCF was involved in a very significant transaction with respect to TNT shares. In addition, Mr Myles, the analyst in MEL responsible for TNT, was required, through the embargo list, to submit his research on TNT to Mr Poole, in MCF, for review. Poole asked Myles to change the draft because "TNT was obviously a major client of ours and I felt it would be embarrassing for Equities Research to be speculating about a takeover and particularly referring to possible bidders, with whom TNT had [a] commercial relationships (sic)": Tcpt, 27 June 2002, p 1195 (AB 2029).
631 The Appellant then submitted:
"Poole's dealings with Myles were a breach of Macquarie's Chinese Wall Guidelines designed to avoid 'tipping' … . The guidelines required research to be sent to the Compliance Officer, who would consult Poole, and if Poole requested changes, the Compliance Officer would make a decision whether to withhold research having regard to the risk of 'tipping'. Myles would have known the guidelines set out only two circumstances where an analyst would be asked to change his research - 'where a transfer of the company to the restricted list is imminent because a takeover is to be announced in a few days' and 'where research is "too close" in the context of MCF's undisclosed role'."
632 The Appellant was conscious that leakage of confidential insider information within Macquarie Bank and its subsidiaries would not establish that the information was generally available. To this end, he sought to rely upon the size of MEL as a major Australian broker, and the fact that it was one of the largest traders in the options market. Further, he relied upon evidence given by Mr Poole to the following effect (Tcpt, 28 June 2002, p 1227, AB 2061):
"Q. And was it widely known amongst the investors and stockbrokers that TNT was a major client of Macquarie Bank?
A. I don't know how sort of widely known it was but I think it was generally known in sort of stockbroking or investment banking circles.
…
Q. It would follow, would it not, that investors and those who advise them would tend to accord special significance to research publications issued by Macquarie Equities Limited about TNT?
A. I think that they would probably give that research more weight than research by other brokers."
633 The Appellant relied on research memoranda prepared by Mr Myles in May and June which had been largely negative in relation to TNT shares. However, on 18 July 1996, Mr Myles issued a further report which suggested a takeover value of $2.21 per share, and a value based on earnings of between $1.35 and $1.45 per share. The Appellant noted that on the previous day, as part of the Tennis Project material, MCF had produced a valuation of $2.22 per share.
634 Three points may be made in relation to this material. First, the fact that aspects of the particularised information were generally available, did not mean that the information as a whole was generally available. For example, there is a significant difference between speculating as to a "takeover valuation" and information as to the likelihood of a particular takeover. Similarly, the research memorandum did not contain the information that TNT had appointed MCF as adviser in relation to a potential takeover, nor that TNT shares had been placed on an embargo list. The argument can only succeed if the Appellant were entitled to an acquittal on the basis that any particular aspect of the information relied on is generally available. That approach is rejected above and is inconsistent with the approach adopted by Spigelman CJ in the first trial: 158 FLR 359 at [275]-[276].
635 The significance of the combination of information, on which it was alleged the Appellant acted, as compared with Mr Myles' report of 18 July, may be seen by the movements in the share price between that date and the end of August. In early July the price had dipped from a range around $1.40-$1.45 to $1.20, being the closing price on 12 July 1996. The price was back at $1.30 on 25 July 1996 and closed at $1.40 on 2 August. However, it was not until 5 September that it closed above $1.50, the rise in early September, appears to have been due to an announcement that TNT would dispose of its stake in Ansett to Air New Zealand and the disposal of other "non-core assets".
636 In substance, all of these matters were material to a consideration of the issue of general availability by the jury. The actual information available to officers in Macquarie Equities Ltd, and the use they made of that information, was a matter for the jury to consider. Unless there was some error in the directions given by the trial judge in this regard, no ground of appeal can be made out.
637 The general complaint that the directions in this regard were not "adequate and comprehensible" were based on a complaint that the trial judge did little more than advise the jury of the content of the statutory provisions, which were complex and required explanation, and failed to discuss how they might apply to the facts of the case.
638 If statutory language includes technical terms or concepts, which require explanation, that explanation should be given. Where the statutory language consists of ordinary words and concepts, even where it requires careful reading to understand its import, it may not be helpful to paraphrase or explain in different language. As Spigelman CJ noted in the first appeal, 158 FLR 359 at [273]:
"In the normal case it is inadvisable for a trial judge to substitute a different formulation for a statutory form of words, particularly when that is done not in a form of an explanation, but by way of direction as to the meaning of the word or words."
639 Bearing that caution in mind, it is nevertheless untrue to say that the trial judge merely repeated the terms of the statute. Rather, he explained what was meant by "bodies corporate" and "disseminated": Summing-up, p 62. He provided further an explanation and a summary of its overall effect: Summing-up, pp 63-68. He summarised briefly the submissions put for the Crown and arguments put for the defence. In the latter regard, he noted the evidence of other trades in TNT options, the submission that "it is reasonably possible that the information particularised … was generally available and that the Chinese wall which was supposed to be in place … generally was not impervious": Summing-up, p 71. At 330-333 and 335-336, his Honour referred to arguments put on behalf of the defence, including a summary of the evidence concerning the 18 July analysts report by Mr Myles. It is not necessary to set this material out in detail, but it may be noted that his Honour told the jury (at 332, AB 4552):
"A question you will have to consider is; if there was some confiding of information by Mr Poole to Mr Myles, and to that extent the Chinese wall was breached, did that have the effect that the information became generally available or ceased to be not generally available?"
640 In our view, the broad complaint made in ground 16(a) is not made out. It is necessary, however, to turn to the more specific complaints. That set out in sub-par (i) of ground 16(b) is not entirely clear; the aspect set out in sub-par (ii) seems to challenge a proposition that evidence could be not generally available, despite the fact that it was available to clients of MEL, or investors who had access to MEL research.
641 The gravamen of the Appellant's complaint in this regard was explained in submissions as twofold. On the one hand, it was said that the focus of par (b)(i) of the statutory definition was on the "manner" in which information might be made known to a relevant section of the public, not on the actual knowledge of those persons. The second aspect of the complaint was that the clients of MEL would themselves have formed a relevant section of the public.
642 As a matter of construction and fact, both of these propositions may be conceded: the real question is whether the trial judge directed the jury in a manner which suggested the contrary. From the questions set out at [639] above, it is clear that his Honour was not excluding MEL clients as a relevant section of the investing community. However, the defence sought a direction in the following terms, namely that "persons who commonly invest would include investor clients of Macquarie Equities Ltd".
643 During a debate about that proposition (Summing-up, pp 383-384) his Honour indicated to counsel that he was minded to give such a direction because he thought that it was correct. Although the prosecution argued against that proposition, at that stage his Honour remained of the view that such a direction should be given. However, he stated (at p 390) that "on further reflection I am not inclined to say it". By way of explanation, his Honour stated (at pp 390-391, AB 4610-4611):
"The jury is likely to misinterpret it, as a direction that if the information became available to investor/clients (sic) of Macquarie Equities, then necessarily the Crown would fail. It should be apparent to the jury that persons who deal with stockbrokers are people who commonly invest. I don't propose to say it."
644 In what was a lengthy summing-up, interspersed with numerous debates with counsel as to the propriety of particular directions, no great weight was placed upon the succinct explanation given for not acceding to the request for a further direction. The terms of the direction were beguilingly, and perhaps misleadingly, simple. By speaking of clients of Macquarie Equities, the direction was silent as to how many clients needed to be considered and as to whether "circumspect" advice to a handful of clients was sufficient or whether a research report was the kind of disclosure being referred to. If the latter, as was presumably intended, it might well have been thought necessary to go over ground as to what particular report was relied upon, the form of disclosure it provided and its relationship with the particularised information. The failure to give the additional direction does not, in our view, demonstrate any error of law in the context of the case.
645 The defence also sought a further direction in the terms set out at [460] above.
646 Of that proposal, his Honour commented (at p 381, AB 4601) that he had difficulty in understanding it. In truth, the redirection sought appears to have been concerned with a separate issue, already dealt with, namely the Appellant's insistence that a price in excess of $2 is an element that must be satisfied at $2.01.
647 A further argument put was that if the particularised information contained inferences which could be drawn from generally available brokers reports, it did not matter that the Appellant may have drawn the same inferences from confidential material. That aspect of the matter has also been discussed, but in the present context appears to rely on the distinction between inferences and underlying primary facts. The Court was not taken to material which was demonstrated to be generally available and which gave rise to inferences having the same effect as those particularised. It was necessary for the Appellant to draw attention to such material and then demonstrate that it was not adequately covered by directions given by the trial judge. The redirections actually sought do not go to this point, in terms, and a redirection of the kind hypothesised, would appear to have been irrelevant and inappropriate in the circumstances of the case. The material available in Mr Myles' report, of 18 July 1996, simply did not support the particularised inferences, in material respects.
648 A ground of appeal which relies upon an alleged flaw in directions given to a jury requires careful attention to the directions in fact given. Despite invitations to attend to this aspect of the argument, the Appellant eschewed such an analysis. The Court has, however, read all the relevant passages in the summing-up and is satisfied that the ground has not been made out.