(f) When the Appellant procured the purchase he knew or ought reasonably to have known that if the information had been generally available it might have had a material effect on the price of Qantas shares.
22 There was ample evidence available to show that the Appellant was present throughout the meeting and the phone call, and it was clearly open to the jury, particularly in the absence of any evidence to the contrary, that he was in a position to hear what it was that Mr Gerard McGowan said. What was said was of no great complexity, and given the Appellant's interest in effecting a sale of Mr Rivkin's property, and the indication of a need for a conditional agreement, the inference is irresistible that he would have taken in and understood what was said.
23 Additionally, the three witnesses who were called each made reference to the need for ACCC approval for the deal of which Mr Gerard McGowan spoke. While only two of the witnesses recalled a caution being given as to the inability of those present to deal in Qantas shares, again there was a proper basis for the jury to have been satisfied beyond reasonable doubt as to that aspect of the conversation which was not, in any event, relied upon as part of the information.
24 It follows that the question which arises for this Court is confined to whether or not the jury ought to have entertained a reasonable doubt as to whether what was said conveyed "the information" which was the subject of the charge. That issue was effectively reduced to whether the jury could be satisfied beyond reasonable doubt that the information conveyed and understood involved a "deal for the merging of Impulse's businesses with Qantas".
25 Although there were, during the trial, two attempts by the Crown to amend the particulars of "the information", and a good deal of discussion in this regard, the particulars which were supplied approximately six weeks before the trial, as set out above, were in all material respects those upon which the Crown case went to the jury.
26 The fact that amendments had been made to the particulars preceding the trial, and that applications had been made during the trial, was relied upon by the Appellant in support of a proposition that it indicated that the Crown was itself uncertain as to what "the information" was, thereby lending support to the reasonable doubt argument.
27 We are not persuaded that such a submission has any merit. Whether or not the verdict was unreasonable, within the meaning of s 6(1) Criminal Appeal Act 1912, and within the principles established in Jones v The Queen (1997) 191 CLR 439; and M v The Queen (1994) 181 CLR 487 at 493, is to be determined by reference to the way in which the case was left to the jury, and to the evidence which was admitted in the trial. In the end the case was opened and left to the jury in precisely the same terms, and the attempts to amend the particulars, which were made in the absence of the jury, were of no significance.
28 The importance of the information being properly identified is obvious, since it not only defines the content of the second element which must be proved; it also has an impact on element three, that is, whether the information was or was not generally available; and on element four, that is, whether the information would or would not have been likely to have had a material effect on the price of the shares purchased. This centralised significance of the information was recognised in R v Hannes (2000) 158 FLR 359 by Spigelman CJ at [26] to [28].
29 The Appellant submitted that:
"A statement to the effect that there was a deal for the merging of Impulse's business with Qantas is materially different from a statement to the effect that there was a process for the sale of part of the Impulse business to Qantas."
30 In support of that submission, it argued that a 'merger' conveys something in the nature of a joining together of two entities so that they would effectively become one, in which event it could sensibly be said that there would be no competition between them. On the other hand, it was argued, the sale of part of a business envisages that the part of the business which is not sold will remain in existence, leaving open the possibility of continuing competition between them.
31 The submission which was pursued accordingly focussed upon the fact that there were three competing versions of the conversation, with the result, it was contended that, if the jury considered it reasonably possible that the words used were those given in evidence by Gerard McGowan, or alternatively by Spiros Dassakis, then they had to entertain a reasonable doubt about element two, and as a result a reasonable doubt also in relation to elements three and four.
32 The critical issue which arose was clearly identified by Barr J for the jury. His Honour initially explained that:
"it is with the effect of the words that you are concerned. The Crown does not say, and does not have to prove, that Mr McGowan said literally, "there is a deal for the merging of Impulse's business with Qantas", as though it were a tape recorder playing his voice back. And the Crown does not say, and does not have to say, that Mr Gerard McGowan literally used the words, "I have to wait for ACCC approval". What the Crown says, what the Crown charges and what it binds itself to prove is that those two meanings were the effect of the words that Mr McGowan used."
33 His Honour then gave clear and explicit directions that the jury were to concentrate on the words used and were not concerned with anything which the Appellant later learned from other sources, including the press release which related to a concluded deal.
34 Turning to the issue which has been ventilated in this appeal, his Honour said:
"I suppose the principal difference between the two sides on the meaning of Mr McGowan's words is this question whether the versions given by Gerard McGowan, Mark McGowan and Mr Dassakis can really stand together. Both counsel said a lot to you about them, but really, perhaps the most important that each of them said was that the Crown said these three versions of the words used by Mr Gerard McGowan can stand together, and you look at them all, and they can prove beyond reasonable doubt that what Mr McGowan was saying was to the effect that there was a deal for the merging of Impulse's business with Qantas. The Crown says it would be rather surprising if three parties to a conversation came along a long time after the event and gave three identical verbatim accounts of what was said. It is not the sort of thing you expect, the Crown would say. The versions have differences, but the differences do not amount to inconsistencies. The versions can stand together. That is the first thing.
The second thing is that they can have, you are entitled to find that they do have, the meaning contended for by the Crown set out in paragraph (i) of the Elements document.
The contrary submission is this: Merger is one thing, and I think Mr Byrne used the word "takeover". Well, there has not been, I do not think there has been, evidence about takeover, but the concept was the same. Merger is one thing. Merger is an arrangement whereby two companies will, in some way, become one. And in the context of this, one company was a very large one - Qantas - and one was a very small one. One would cease to exist. That is the concept of merging, Mr Byrne says, and that must really be the flavour you get from the words used by Mr McGowan. Yet he did not say that, he said that the deal or the negotiation was about selling part of the business of Impulse to Qantas, and Mr Byrne says they are two entirely different concepts and they do not stand together.
Now, I am not going to repeat the submissions made about this. You have just heard them both, and I am not here to repeat the parties' submissions to you. But that, it seems to me, is the nub of what each side is saying to you about the ability of this evidence of the three people to prove beyond reasonable doubt that that was the effect of the words used by Gerard McGowan.
The Crown drew attention to what it said was the consistency between the different versions of what was said. A commercial transaction, the Crown says. There is nothing inconsistent between the sale of part of a business and a merger. The merger will happen in that way.
Mr Mark McGowan was the only one who used the word merger. He was the only one that put that word into the mouth of Gerard McGowan, but the Crown says you can be satisfied beyond reasonable doubt that that is what the words meant.
That is what the Crown has to prove.
There were arguments, - let me say again that Mr Byrne has pointed you to the differences, points out that Mr Dassakis, not only does not mention merger, he does not mention a part sale. He says just a vague thing about a commercial transaction."
35 His Honour then turned to the requirement for the Crown to prove that the Appellant "heard and understood the information", and carefully summarised the various aspects of the evidence concerning his presence in the office while the conversation proceeded, and the submissions made in relation to this issue, including the possibility that the appellant might have been distracted or in some way disengaged while Gerard McGowan spoke the words in question.
36 We are not persuaded that the verdict was unreasonable.
37 First there was no challenge to the testimony of Mark McGowan, which was precisely in accordance with the particulars. There is no basis for a contention that his version was so inherently unreliable that no reasonable jury could properly have convicted upon it. The assessment of which version to accept was quintessentially one for the jury who saw and heard the witnesses.
38 Secondly, the word "merging" has no particular technical meaning. When used in the context of two businesses, it may imply either a total or partial joinder of their activities and it can include a transaction in the nature of a sale, which results in some lessening of competition between them.
39 Thirdly, it is important to consider the two components of "the information" together, just as the jury were invited to do at trial.
40 In this regard it is not to be overlooked that the information was particularised in terms of being "to the effect that there was a deal for the merging of" the two businesses. In circumstances where it was made clear, on all three versions, that the deal required ACCC approval, and where the listeners were informed that they were now not free to deal in Qantas shares, there was an irresistible inference available that the transaction involved a form of merger involving a reduction in competition in the Australian passenger aviation market.
41 Fourthly, the action of the appellant in placing a purchase order for shares in a company in which his last trade had occurred 15 months earlier, gave rise to the strong inference that he had received information which he understood and recognised for its potential value as being likely to cause a rise in the price of the shares once the information was released to the public.
42 Counsel did not embrace the proposition, which was ventilated during the appeal, that recourse to the terms of the discussions between Impulse and Qantas, as at 24 April, may have had a bearing on the probability of what it was that Gerard McGowan had said. In those circumstances we do not ourselves place reliance upon that consideration in reaching a conclusion that the verdict was not unreasonable, even though we consider that it was something upon which reliance could have been placed, and which it would only tend to fortify our assessment of the way in which the issue as to this element should have been decided.
43 It follows from the foregoing that the argument concerning elements 3 and 4 to the effect that the expert evidence did not adequately deal with the general availability, or the price sensitivity of the alternative versions of the information which it was suggested were to be derived from the evidence.
44 An alternative or additional submission was however advanced, in relation to the third element, that it was reasonably possible that information of the kind particularised was generally available to the market via the articles that had appeared in the Bulletin Magazine on 17 April 2001 entitled "Reverse Thrust", in the journal "Australian Aviation" of March 2001, and in the Australian Newspaper of 21 April 2001 entitled "Who is the Weakest Link". Reliance was also placed upon the terms of the conversation between Mr Mark Colvan of the ABC, and Mr Simon Westaway of Impulse, relating to a rumour that Impulse was about to close its doors, and upon the unusually high turnover of Qantas shares that was disclosed in the sales graph that was tendered.
45 We are unable to accept that the rumours with which these articles or interviews dealt, or the speculation that was invited, bears any resemblance to the specific information which was effectively disclosed in confidence to the Appellant and to Mr Rivkin on 24 April 2001. The distinction between rumours and speculation, on the one hand, and information from an informed source, was dealt with by Mr Sellars-Jones, and an argument along the lines advanced was dismissed by this Court in the Rivkin appeal at [34].
46 The evidence tendered was in our view sufficient to make good this element having regard additionally, to the steps which were taken for the discussions with Qantas to be conducted in secret, and to the absence of any evidence to suggest that relevant information had been leaked. The jury were properly entitled to find it proved beyond reasonable doubt, and his Honour sufficiently and clearly dealt with this element in the summing up.
47 In relation to the fourth element it was further submitted that there was an insufficiency in relation to the information to show that it was price sensitive. In particular it was asserted that, as at the date of its supply, the negotiations had not reached finality, and that once finality was reached, any arrangement would still be subject to ACCC approval.
48 As a result, it was argued, there was a double level of uncertainty regarding the proposed deal which must have affected its price sensitivity as judged by the objective observer.
49 Further, it was argued there was likely to be a real question as to whether the proposed financial arrangement was, or was not, one which the prospective investor would regard as favourable or unfavourable to Qantas. That related to whether or not it ever needed to make any monetary contribution to a competitor that would inevitably fail, or at least was the subject of market speculation in that regard.
50 Yet again this was a matter which was the subject of expert evidence and was unequivocally answered by Mr Sellars-Jones, in a way that made good the Prosecution case. Additionally the jury were entitled to apply their common sense and to have regard to the price spike, which followed the public announcement, as a circumstance reinforcing the case for which the Crown contended.
51 The appeal against conviction is not made good.