Regina v Rivkin

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 71998/03 FILE NUMBER(S) : LOWER COURT Whealy J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60198/03

MASON P WOOD CJ at CL SULLY J

Regina v Rene Walter Rivkin Judgment 1 THE COURT: On 26 March 2003, the appellant stood trial before Whealy J and a jury on an indictment that contained one count charging that: On or about 24 April 2001 at Sydney in the State of New South Wales, (the appellant) contravened section 1002G(2) of the Corporations Act in that he: (a) being possessed of information that was not generally available but which, if it were generally available, a reasonable person would expect it to have a material effect upon the price or value of securities of a body corporate, namely ordinary shares in Qantas Airways Limited ("Qantas shares"); and (b) knew or ought reasonably to have known that such information was not generally available, and if it were generally available it might have a material effect on the price or value of Qantas shares; procured Rivkin Investments Pty Limited to purchase 50,000 Qantas shares.

2 On 30 April 2003, the jury returned a verdict of guilty. On 29 May 2003, the appellant was sentenced to imprisonment for a term of 9 months to be served by way of periodic detention, and was fined the sum of $30,000. 3 He now appeals, pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW) against his conviction, and seeks the leave of the Court, pursuant to s 5(1)(c) of the Criminal Appeal Act, to appeal against the sentence which was passed following his conviction.

A. FACTS 4 The information, which was the subject of the charge against the appellant, was alleged to have been conveyed in a telephone conversation between the appellant and Mr Gerard McGowan, on the morning of 24 April 2001. The Crown opened its case, in accordance with the particulars which had been supplied in this respect as follows: "(1) Gerard McGowan said that there was a deal for the merging of Impulse's business with Qantas; (2) Gerard McGowan said that he had to wait until he had ACCC approval of the deal before making the purchase of the property; and (3) Gerard McGowan said that he believed that ACCC approval would be forthcoming." 5 At the time of this conversation, Mr McGowan was the Executive Chairman of Impulse Airlines. That airline was formed in 1982. By April 2000 it was conducting operations as a provider of regional passenger air transport services. At this time, it announced an intention to expand its business to include jet operations between the major capitals of Australia. By the end of 2000, it was operating as a regional and domestic airline that competed on the Sydney-Melbourne and Sydney-Brisbane routes with Qantas and Ansett, and also with Virgin Blue, which had entered the market in September 2000. 6 As at December 2000 it had made an operating profit of $7.7 million. The fact that it had recorded profitable months and had expressed the prospect of sustained profitability had been reported in both the television and print media. By January 2001, it had five 717 aircraft and 13 Beechcraft turbo propeller aircraft, and during that month it took delivery of further aircraft. 7 However, the introduction of Impulse and Virgin Blue on the eastern seaboard trunk had brought about intense competition among the three airlines and the ensuing price war was reported by the media to have significantly, and adversely, affected Qantas' profitability, as well as its share price. On 29 March 2001, it was reported that its share price had dropped to its lowest point in two and a half years following a warning, which it had given, that steep discounting in the domestic market, a weak dollar, and a slowing demand, would leave its full year earnings "significantly lower". 8 At the same time, Impulse was not achieving the significant passenger growth that it had expected with the delivery of three additional Boeing 717 aircraft. The factors that were affecting the share price of Qantas, which had added more capacity to the market, were also having an impact on its financial position, resulting in a projected operating loss to the end of March of $13 million. 9 As a result of these financial difficulties, and the problems which had been experienced in raising the additional capital needed for expansion from its institutional shareholders (arising from the opposition of one shareholder), Gerard McGowan approached Mr Dixon, the Chief Executive Officer of Qantas and asked him if Qantas would consider a wet leasing arrangement.

10 An initial meeting took place between Mr McGowan and Mr Dixon on 29 March 2001. Thereafter, and throughout April 2001, confidential meetings took place between representatives of the two companies. 11 These meetings had been preceded by a board meeting of Impulse on 3 March 2001, at which its financial position was discussed, including the possibility that it would need to close its doors. Representatives of six of its institutional investors were present, and they were kept informed of the subsequent negotiations with Qantas. 12 Mr McGowan was cross-examined about the answers that he had given in a Channel 7 interview on the day after this meeting. He denied having told a deliberate lie in his answer to questions concerning whether or not Impulse was still trading profitably, and in a statement, which he made during the interview, that Impulse would record a full year net profit of about $35 million. He said that he did not consider that he had an obligation to tell the media the truth concerning Impulse's financial position. 13 He also denied having given untruthful evidence in relation to the accuracy of the content of the Impulse Company Profile, which had been prepared in March 2001, or that the information contained in it had been false.

14 He conceded that by the time of his approach to Mr Dixon of Qantas, he knew that the institutional investors were not prepared to contribute a further $50 million to Impulse, and agreed that no such funds were received. Accordingly, he was cross-examined about the truthfulness of the statement, which had been attributed to him in an article appearing in the Sydney Morning Herald on 23 April 2001, to the effect that Impulse had "secured a further $50 million in funding from institutional investors". He conceded that this was "an exceptionally serious lie", but said that at the time of the publication of the article, the Qantas negotiations were very advanced and he had not been prepared to tell the journalist that Impulse was about to close its doors. 15 He acknowledged in cross-examination, that the only deal discussed with Qantas had been a wet lease arrangement that would have involved Qantas buying out the institutional investors. He did not believe that a merger, as such, was discussed, and accepted that the deal eventually transacted was neither a takeover nor a merger. 16 The critical telephone conversation of 24 April 2001, which is at the heart of the prosecution, occurred whilst Mr McGowan was in a meeting with Mr Dassakis (the Group Operations Manager of the Rivkin Group of Companies) who was assisting the appellant with the sale of his residence in Rose Bay and with Mr Doff, the real estate agent handling the sale, at his office. Also in attendance was Mr Mark McGowan (the Chief Financial Officer of Impulse and the brother of Gerard McGowan). Gerard McGowan said that he informed Mr Dassakis that he was interested in the property (which was owned by Timsa 43 Pty Limited) and that, as he was waiting for the sale of his business he would have to make a conditional offer. Mr Dassakis, he said, replied that they would need to know the details of the negotiations in order for the appellant to assess whether he would accept the offer. It was Mr McGowan's evidence that he said, to Mr Dassakis, that he was looking to merge Impulse with Qantas, and that they were waiting on ACCC approval. He added that he informed Mr Dassakis and Mr Doff that, now that they were aware of the transaction, they could not trade in Qantas shares. Mr Dassakis then placed a call to the appellant's office and left a message for him. 17 It was shortly after this conversation that the appellant telephoned Mr Dassakis, and was transferred to Mr Gerard McGowan. Mr McGowan's evidence at trial concerning the ensuing conversation with the appellant was as follows: "I said to Mr Rivkin, 'I am interested in purchasing your property. However I am currently in merging my Impulse business with Qantas. We are awaiting ACCC approval for that transaction.' Mr Rivkin said to me, 'I don't believe that the ACCC would approve such a thing.' 'I believe' I said to Mr Rivkin, 'I believe they will approve it', that, 'I have had several months of negotiation with the ACCC on a variety of matters and I believe that they would approve the deal.' I also went on to say to Mr Rivkin that, 'Obviously now that you are aware of this you cannot trade in Qantas shares.' Mr Rivkin said to me, 'Obviously a person of my standing would not contemplate such a thing' and that was the end of the conversation." 18 When Mr McGowan was cross-examined, in relation to this conversation, he gave the following evidence: "Q. Now, would you just tell us what you said about what you were negotiating with Qantas to Rivkin? A. I said looking I told Mr Rivkin that we are looking to merge or sell part of our business to Qantas. We are awaiting ACCC approval. He did not think we would get ACCC approval and my view was I thought we would." 19 The cross-examination continued: "Q. When you gave evidence yesterday you said this in response to Mr Yates: 'I am interested in purchasing your property. However I am currently in merging my Impulse business with Qantas' you recall that?

A. Yes. Q. You did not say yesterday that you said to Mr Rivkin that you were selling part of your business to Qantas did you? A. Well, no that is the transcript, no. Q. Equally you have told me during today that you in fact were not merging your business with Qantas? …

A. Yes. Q. If you said you were merging your business, the Impulse business with Qantas, that would not have been true? A. Well, I guess it is how you interpret that.

… Q. What you actually said was something like that you thought you were negotiating in connection with a commercial arrangement in relation to your business? A. Yeah I don't believe I said that."

20 There was further cross-examination to the following effect: "Q. What I want to suggest to you was you said words to the effect, 'I am negotiating a commercial arrangement with Qantas'? A. No I don't think I used the words 'commercial arrangement'. Q. But you certainly used the word 'negotiating' A. Yes. Q. It would have been quite misleading for you to say it was a done deal to Mr Rivkin? A. I don't think I said that. Q. Because there was no done deal at least until 30 April? A. Yes." 21 The concept of a "done deal" had arisen earlier in the following passage of cross-examination: "Q. The Qantas board did not approve the transaction or the commercial arrangements until 30 April 2001. A. Yes. Q. And I suppose it is in fairness, it is probably right to say up to 30 April when the Qantas board approved it was hanging in the balance? A. Yes. Q. And certainly you did not have a done deal until the board of Qantas had approved it did you? A. No that is right."

22 Counsel for the appellant returned to the conversation towards the end of the cross-examination, as follows: "Q. You told Mr Rivkin that you were negotiating a commercial arrangement with Qantas didn't you? A. Well I don't think I used the words commercial arrangement but yes, basically that's what was said. Q. You certainly said you were negotiating something with Qantas? A. Yes that's correct. Q. You didn't say that you'd done a deal to merge Impulse with Qantas did you? A. Well I think that's what I said, yes. Q. Now I want to suggest that you didn't say that, because as at that point Mr McGowan, you had not done a deal to merge Qantas with Impulse had you? A. No it wasn't signed. Q. And you were still negotiating weren't you? A. Yes. Q. You spoke in terms of negotiations? A. Yes. Q. And you also told us that the deal in question was not a merger haven't you? A. Yes. Q. So you would not have said to Mr Rivkin, I have done a deal to merge Impulse with Qantas would you? A. No." 23 Two witnesses, who overheard Gerard McGowan's side of the telephone conversation, gave evidence. Mr Mark McGowan's evidence was to the following effect: "Gerry [McGowan] talked on Spiros' [Mr Dassakis'] mobile phone to who I assume was Mr Rivkin. Gerry then said that he wished to buy his property but that it was conditional on ACCC approval of a deal to merge Impulse's business with Qantas and he said that he advised him that he could not trade in Qantas shares now that he knew this." 24 He also said that, prior to this conversation, Gerard McGowan had supplied similar information to Mr Dassakis and to Mr Doff. He accepted, in cross-examination, that the only agreement negotiated or considered by Impulse and Qantas had been a wet lease agreement.

25 Mr Dassakis' evidence was as follows: "I passed the phone over to Mr McGowan and Mr McGowan expressed interest in the house. His family was interested. He mentioned that his company, Impulse, was entering into a financial arrangement with another company and during the course of that conversation I heard the word 'Qantas' and there was also discussion about a seven day option period where Mr McGowan would put the money down for a period of seven days and at that time he could either buy the home or rescind." 26 He added that he remembered that the ACCC was mentioned, but he could not be sure at what point this had occurred. 27 He also said that he had spoken with the appellant later that day and indicated that he had executed a contract, under a power of attorney, for the sale of the property, conditional upon Impulse entering into a financial arrangement with Qantas that required ACCC approval, with a 7 day option period. 28 He said, in cross-examination, that the expression used by Mr McGowan was not the word "merger". Rather, he had spoken in terms of a "financial arrangement", and had not said anything to suggest that there had been a concluded deal. He also said that when speaking with the appellant after the conversation, the latter had remarked that he did not believe Mr McGowan, and, additionally, that he did not believe that Mr McGowan had the money to buy the house. 29 The appellant gave evidence to the following effect concerning the conversation: "He [Mr McGowan] said to me: 'I'm interested in buying your house but I have to do a deal first. I said to him, 'Does that deal relate to the 50 million that the paper said you raised yesterday? He said, 'No. It's a different deal. I think it's a deal with Qantas' at which I don't think I said anything else as I didn't believe a word of that and I went on." 30 The reference to the $50 million, he said, related to the article in the Sydney Morning Herald which he had read on 23 April 2001, which recorded Mr McGowan as having said that Impulse had secured a further $50 million in funding from institutional investors on Tuesday and that it was working towards a share market float scheduled for mid 2002. 31 He also gave evidence that he had not believed a word of what Mr McGowan had said to him because he could not understand why anyone would buy Impulse "if it was going broke". 32 After the conversation with Mr McGowan he said that he again spoke to Mr Dassakis and told him he did not believe what Mr McGowan had told him, but he agreed to give Mr McGowan a seven-day conditional contract. 33 He said that he was not certain whether Mr McGowan had mentioned Qantas in that conversation, but he was certain that he had not mentioned the ACCC. He agreed in cross-examination, however, that after speaking to Mr McGowan he had said to Mr Dassakis that "the ACCC would never approve that". He also agreed, in cross-examination, that if Impulse's business was going to be taken over by Qantas, then that would require ACCC approval, and that it would be good news for Qantas. He denied that Mr McGowan had warned him that he could not trade in Qantas shares. He also said that while he had not believed Mr McGowan, he had assumed that he would be receiving some of the $50 million referred to in the article, and would be using it to purchase the house. 34 Some time later, Mr Doff telephoned Mr McGowan and informed him that a conditional offer had been accepted. A contract was entered into, but it did not proceed. 35 Following the conversation, and on the same day that it occurred, the appellant instructed Mr Kerstens, a SEATS Operator with Rivkin Discount Stockbroking, to purchase 50,000 shares in Qantas on behalf of Rivkin Investments Pty Limited ("Rivkin Investments"), a company in which he had an 11% interest. The order was executed by Mr Kerstens at 2:52 PM. The appellant said that he gave instructions for the purchase after receiving a telephone call from Mr Kerstens suggesting that Qantas shares were "looking good". He said that he had similarly been watching the computer screens in his office that showed the trading. He also said that the information from Mr McGowan had not influenced his decision, and that he would not have bought the shares had Mr Kerstens not phoned him. 36 Mr Kerstens gave evidence to the effect that he received the instructions from the appellant at 2:52 PM, and confirmed that, prior to receiving those instructions, he had phoned the appellant and informed him that there had been a lot of activity in Qantas shares and that they looked interesting.

37 On 30 April 2001, following the several confidential meetings that had been held at a golf club to maintain security, Qantas Board approval was received for the transaction. Heads of agreement were signed on 1 May 2001, and a copy was forwarded to the ASX, in order to comply with the listing rules. 38 At about 2 PM that day, Impulse and Qantas made a joint public announcement that Impulse was withdrawing from operating scheduled air services in Australiaunder its own name, and that the two airlines had entered into a long term relationship that involved, inter alia, Impulse contracting to Qantas its eight Boeing 717 (and 13 Beechcraft) aircraft, complete with pilots and cabin crew, and Impulse operating Boeing 717 services for Qantas, under the Qantas brand and livery. The agreement was expressed to be subject to approval from the Australian Competition and Consumer Commission (ACCC). A letter from Qantas was released to the market by the ASX at about 14:07 PM, while its market release was issued at 12:58 PM. 39 In the discussions with the ACCC, Impulse and Qantas described the result of their arrangements as a "virtual or contractual merger" of the two companies. 40 On the same day as the announcement Rivkin Investments sold the Qantas shares for a profit of $2,664.94. That sale was effected at 12:10 PM, before trading in Qantas shares was suspended, and before the public announcement.

41 Mr Kerstens said, in this regard, that he had kept an eye on the movements in the share prices since their purchase. The price, he said, had initially gone down but had then risen sharply on 1 May, reaching $2.90 before its suspension. He said that he had tried to phone the appellant and when he eventually reached him, the price was falling. He received instructions to sell at $2.85. 42 He also said, in cross-examination, that the appellant had not indicated to him any reason for the price rise; he also said that there was nothing "out of the ordinary" in relation to the transaction. 43 Charts showing the closing prices and volumes of Qantas shares traded between 2 April 2001 and 1 May 2001, and showing, at five-minute intervals, the price and volume of trades on 1 May 2001 were tendered, and admitted over defence objection. 44 The appellant gave evidence to the effect that he was accustomed to trading "all day and every day", and that he informed himself on the markets by reading the Sydney Morning Herald, the Australian and the Australian Financial Review, on a daily basis, and by watching the computer screens in his office. In cross examination he agreed that he was an opportunistic buyer of shares, in the sense that he was prepared to buy and sell on short notice, and in the very short term, to make a profit. 45 It was in that context, that he said that he gave the instructions to sell, because he had bought the shares "to make a few cents", and had achieved that result. He said that he had no knowledge of the pending market announcement. 46 Several other witnesses were called in relation to the availability and price sensitivity of the information. They included Mr Anderson of Equator Communications Pty Limited, an advertising company that had been engaged by Impulse. He said, contrary to suggestions in a Sydney Morning Herald article of 24 May (which had recorded him saying that some weeks before the Qantas-Impulse alliance had been made public, Equator had been told to put the Cockatoo advertising campaign on hold), that he had not received calls from stockbrokers concerning a rumour about Impulse's collapse, and that he had been unaware, before 1 May, of any deal or negotiations for a deal with Qantas. Although he and his partner had discussed the possible reason for the change in attitude to the advertising campaign, he had not himself come to any conclusion that Impulse was selling out to Qantas. 47 Mr de Teliga, who was a director of Equator, and who had dealt directly with Mr McGowan, similarly gave evidence that the Sydney Morning Herald suggestion that Equator had been phoned by stockbrokers concerning rumours in relation to Impulse, had been incorrect. He also said that he had been unaware of any information, rumour or speculation concerning any deal or possible deal between Qantas and Impulse, or concerning Impulse's possible collapse. He agreed that he had speculated that the advertising campaign had been stopped because Impulse was running out of money, that he had thought it unlikely that all four competitors would continue, and that he had speculated that Impulse might join either Ansett, Qantas, or Virgin Blue. 48 Simon Westaway, the Corporate Affairs Manager for Impulse, whose duties included the management of media relations with government, said that Mr McGowan had told him, on 30 April, that in all likelihood there was going to be a commercial arrangement with Qantas, and asked him in confidence, to prepare some lines to go in a media announcement. Prior to that, he said, he had no knowledge of any deal with Qantas, although he knew that things were not going well. In that regard he agreed that there had been a recurring theme in the press that one of the four players was likely to disappear, and that it was likely to be either Impulse or Virgin Blue. He said that very late in April, he became aware of rumours that Impulse was doing a deal with Qantas and that a journalist had telephoned him about such a rumour on 30 April. 49 Simon Gresham, a research analyst with Merrill Lynch Australia, whose investment advisory services were concerned with the transport sector, including the airline industry, and whose analysis reports relating to Qantas were tendered, said that he had not been aware, as at 24 April, of the information which the prosecution alleged had been given to the appellant, and that he had not been aware of any information from which he could deduce or conclude that there was a proposed deal between Impulse and Qantas. On 1 May, he issued a report altering his recommendation in relation to Qantas shares from neutral to accumulate. 50 Graham Sellars-Jones, who had been involved in stock broking since 1958, and had extensive experience in advising private investors in relation to the share market, said that, as at 24 April, he had not been aware of any information of the kind which the prosecution alleged the appellant had received from Mr McGowan or of any information from which he could deduce, infer or conclude that there was a deal, or negotiations for a possible deal, for a merger of Impulse's business with Qantas. 51 He was held to be qualified as an expert witness, who was capable of giving evidence on the issues of general availability and price sensitivity. In that capacity he said in chief that "the information would be likely to influence persons who commonly invest in securities in deciding whether or not to subscribe for, sell or buy Qantas shares." An aspect of importance, he said, was its source, as a judgment had to be made as to its reliability; as well as its content. In that regard, he said that it was likely to influence people because it contained the clear inference that one of the competitors in the industry was going to leave it, and that would be beneficial to those who remained, including Qantas. 52 In cross-examination he accepted that, in recent years, he had focused principally on private investors, and that large institutional shareholders were the major shareholders in Qantas. He did not, however, accept that he did not know what would influence institutional investors, nor did he agree that people would not take account of information simply because there was a possibility that it might not be true. He pointed out that there was a sliding scale of reliability, depending on how certain the person was as to its truth or untruth. 53 He agreed that the credibility of the source was very important, and that if a person knew that the supplier of the information was a liar the information would be discounted. In re-examination he said that comments by an Executive Chairman in private, accompanied by a warning that the recipient could not trade, would be "fairly well up the scale of reliability".

54 He did not concede in cross-examination that the Sydney Morning Herald article negated the information that Mr McGowan had allegedly supplied to the appellant, although he accepted that there was an inconsistency in the respective statements. A question was put to him in cross-examination, upon the assumption that as an investor he had read the article, and had been informed on the following day that Mr McGowan had said that there was a deal for the merging of Impulse's business with Qantas. It was his reply that he would not act either way, in relation to Qantas shares, because he would not be able to make an assessment of the reliability of the information which he had received. 55 He made it clear however, that any decision to buy Qantas shares, in circumstances where an investor had read the article and had been given information as to a deal for the merging of the businesses, would depend upon the identity of the person who supplied that information, indicating that he would not take note of an "unsourced comment from somebody undefined". 56 Finally, he accepted that it had been obvious, at 24 April, that one of the "airlines was going to go", and that there would be less competition for Qantas. Nevertheless the information, he considered, remained price sensitive because it impacted on the level of certainty and timing.

57 Two witnesses from Qantas, who had been involved in the negotiations, were called. Curtis Davies, the Group General Manager, said that, at the first negotiation meeting he had attended, Mr Dixon had made it clear that the meetings were of a totally confidential nature. Steps were taken to keep that confidentiality, including adopting a code-named "Project Clock". 58 The first meeting, he said, had been attended by three employees of Deutsche Bank who were advising Qantas, and by two institutional investors in Impulse. As time went buy, more people at Qantas became involved, including lawyers from either Minter Ellison or Blake Dawson Waldron. By 1 May, he said, he knew of at least ten or twelve people who had been involved. He was not aware of Qantas releasing any information to the public relating to the meetings, or the negotiations, before 1 May 2001.

59 Brett Johnson, the Chief General Counsel and Company Secretary of Qantas, first became aware of the negotiations after being advised of them by Mr Dixon, on 1 April. He became personally involved from a legal perspective from 17 April, and assisted in drafting the heads of agreement and in dealing with the ACCC. It was he who forwarded the heads of agreement to the ASX on 1 May, after they had been signed that day.

60 It was his recollection that the draft heads of agreement had been signed on the evening of 30 April, following a meeting with Professor Fels. He said that Qantas had not requested a suspension of trading on the morning of 1 May because it had not considered the announcement to be sufficiently material, or that there had been sufficient speculation in the market about an announcement. To the best of his knowledge, Qantas had made no announcement, and had no discussions with the media, before the 1 May release. He also confirmed that Qantas had considered it important to maintain the confidentiality of the negotiations.

61 David Barnett, the Assistant Manager Sydney Companies Division, of the ASX, gave evidence that, after 12:10 PM on 1 May, he received a telephone call from SEATS Market Central, advising that there was a news report, on the Australian Financial Review website, indicating that Qantas was in discussions with Impulse about a commercial agreement, and that its shares were trading at $2.90, having opened at $2.68 or $2.70.

62 After accessing the web site, he saidhe had contacted Mr Johnson of Qantas, who confirmed the report. It was then agreed that he should instruct SEATS controlto impose a trading halt. That occurred at about 12:20 PM, and was followed by the market release. Trading resumed, he said, at 2:20 PM.

63 Finally the Crown called, in its case, Nigel Littlewood, who, together with the appellant, was a director of the company that published the Rivkin Report. The report of 23 April 2001 contained the following item: "as for Qantas, the situation in the Australian airline industry is a mess and I could not add any significant value to the market's view that would help you make a decision.

Taking a long-term view, I do, of course, believe that the stock is quite cheap, but in the short term, all sorts of things could happen and I cannot and will not attempt to guess what they are."

64 His Honour accepted, upon the appellant's application, that Mr Littlewood was qualified to give expert evidence in relation to the information that the Crown alleged had been given to the appellant. It was his opinion that it was "unlikely" that the information was price sensitive. The reasons he gave were that it was vague, and that as at 24 April he believed that most people in the market expected the price war to end and that one of the new players, either Virgin or Impulse, would disappear. In that regard, he said that Mr Dixon had said that one of those airlines would not be around by the end of the year. Additionally, he said that he had thought that it would be Impulse that would disappear, as it had the weaker balance sheet.

65 Leave was given to the Crown to cross-examine him, under s 38 of the Evidence Act. In the course of that cross-examination, he conceded that in April 2001 there was no evidence that the price war had ended, that what Mr McGowan had said may have had an impact on the increase in the share prices, and that the possibility that Impulse would no longer be in competition with Qantas would be a positive for the company and would be likely to influence investors to buy its shares. He accepted that he had previously said that he did not think that anybody had expected Qantas to buy out Impulse, because the market focus at that time was on what was happening with Ansett.

66 He agreed that he had purchased shares in Qantas on 12 April and resold them on 18 April, by which time none of the competitors had disappeared. The rally in price that had occurred to that time, he agreed, was more likely to have been due to Ansett's misfortunes, rather than to indefinite speculation about what might happen to Impulse or Virgin Blue.

67 He also agreed that the price rise indicated that the market had not previously factored in that one of the players, namely Impulse, might disappear.

68 The appellant gave evidence, in his case, that he was aware of the insider trading laws as at April 2001, and would never knowingly break them. He conceded, in cross-examination, that he had been aware for some months before 24 April, of the entry into the industry, of Impulse and Virgin Blue, of the fierce competition in the industry, and of the extensive fare cutting that was occurring. He was also aware, he conceded, of the press reports of the adverse effects of the competition on Qantas's profitability. He accepted that he had been the author of the article in the Rivkin Report relating to Qantas, that he had been unable to guess what would happen in the short term, and that he had not, at that time, recommended a purchase of those shares. 69 He also accepted in cross-examination, that he knew at that time, that Mr McGowan was running Impulse, and would be the one to know if a deal was going on between Qantas and Impulse. He said, however, that as he had not believed a word of what Mr McGowan had said to him, he did not believe that it would have an effect on the price or value of the shares.

70 The appellant also called, in his case, a merchant banker, Alan Humphris, who his Honour similarly accepted was qualified to give expert evidence. He said that he had been following the domestic airline sector since its deregulation in 1989.

71 He did not believe that the information upon which the prosecution relied would be likely to influence a reasonable investor to subscribe for, sell or purchase Qantas shares, because in light of its nature and the generally available information, a reasonable investor would be left with a considerable amount of uncertainty, such that he would question its reliability. That would be so, he said, unless the information was conveyed in a highly reliable form, such as a company document.

72 In cross-examination he agreed that he had never worked as a stockbroker, that his expertise was in corporate finance, and that when giving his evidence he had placed himself in the position of a reasonable investor who had come from a merchant banking background. He accepted that the price of a share is driven largely by the view of the future. He accepted that, when he expressed an opinion, he endeavoured to base it on fact, but acknowledged that the share market also operated on matters of the sentiment, rumour and tips, and that some investors who commonly invested in securities would be interested in the relevant information.

73 He also accepted that, in expressing his opinion, he had made no assumption as to the manner in which the reasonable investor had received the information. In that respect, he acknowledged that he would have expected Mr McGowan, as Executive Chairman of Impulse, to have had reliable information concerning Impulse's dealings, and that if he had been the source it was relatively authoritative and would have to be taken more seriously. Nevertheless he considered the information itself to reflect a number of uncertainties and to give rise to queries as to its reliability.

74 He agreed that the prospect of Impulse disappearing from the competition would be good news for Qantas. He was aware that there was speculation in the market that this might occur, and also that there might be a merger between Impulse and Virgin Blue, and that Ansett or Virgin Blue might "hit the wall".

75 Additional material was tendered in the defence case in the form of articles that had appeared on 31 March 2001 in the Sydney Morning Herald "Bite Dust" and in the Australian "Discount players face loss but vow to stay" and also in the Australian on 21 April 2001 "Weakest Link". A Sydney Morning Herald article dated 23 April 2001 "Impulse tops up reserve tank", and a transcript of a Channel 7 interview with Mr McGowan on 4 March 2001 were also tendered and relied upon in relation to the attack that was made on Mr McGowan's truthfulness. B. THE RELEVANT STATUTORY PROVISIONS AND ELEMENTS OF THE OFFENCE 76 At the relevant time, section 1002G(1) of the Corporations Act 2001 defined the circumstances in which the insider trading provisions applied, as extending to those: (a) …where a person (in this section called the insider) possesses information that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities of a body corporate; and

(b) the person knows, or ought reasonably to know, that: (i) the information is not generally available; and (ii) if it were generally available, it might have a material effect on the price or value of those securities 77 Section 1002G(2) specified the consequences, in such a case, as follows: The insider must not (whether as principal or agent): (a) subscribe for, purchase or sell, or enter into an agreement to subscribe for, purchase or sell, any such securities; or (b) procure another person to subscribe for, purchase or sell, or to enter into an agreement to subscribe for, purchase or sell, any such securities. 78 The expression "information", and the circumstances in which information is to be taken to have been "generally available", are themselves subjects of further definition. 79 In this regard, s 1002A(1) defines "Information", for the purposes of the offence, 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 the likely intentions, of a person.

80 Section 1002B(2) provides that "information" is to be taken as having been "generally available" if: (a) it consists of readily observable matter; or (b) without limiting the generality of paragraph (a), both the following subparagraphs apply:

(i) it has been made known in a manner that would, or would be likely to, bring it to the attention of persons who commonly invest in securities of bodies corporate of a kind whose price or value might be affected by the information; and

(ii) since it was so made known, a reasonable period for it to be disseminated among such persons has elapsed. 81 Section 1002B(3) provides, additionally: Information is also generally available if it consists of deductions, conclusions or inferences made or drawn from either or both of the following:

(a) information referred to in paragraph (2)(a); (b) information made known as mentioned in subparagraph (2)(b)(i). 82 In terms of the price sensitive component of the offence, section 1002C of the Act provides: …a reasonable person would be taken to expect information to have a material effect on the price or value of securities of a body corporate if the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether or not to subscribe for, buy or sell the first-mentioned securities. 83 The offence with which the appellant was charged accordingly contained the following five elements, each of which the prosecution needed to establish beyond reasonable doubt:

(a) On 24 April 2001 the appellant procured Rivkin Investments Pty Limited to purchase 50,000 Qantas shares; (b) At the time of procuring that purchase, the appellant was in possession of certain information; (c) the information which he possessed was not generally available; (d) if that information had been generally available, a reasonable person would have expected it to have had a material effect on the price or value of Qantas shares; and (e) the appellant knew, or ought reasonably to have known, that such information was not generally available and that, if it were generally available, it might have had a material effect on the price or value of Qantas shares. 84 It is convenient to summarise the competing cases of the Crown and the defence in relation to those elements:

(a) The Procurement by the Appellant of the Purchase of the Shares Element 85 There was no issue as to this element.

(b) The Possession of the Information Element 86 The Crown case relied upon:

(i) the evidence of Mr McGowan, that he had said to the appellant that he was currently merging his business with Qantas, and was awaiting ACCC approval for the transaction, and that he believed that such approval would be forthcoming;

(ii) the fact that although the deal was perhaps not a merger in the strict legal sense, nevertheless it was a merger in the practical sense of combining two businesses into one, and was referred to as a "contractual merger" in the letter which was sent to the ACCC.

(iii) the background against which the conversation occurred;

(iv) the fact that Mr McGowan had been advised by legal counsel that if anyone was made aware of the dealings between the companies, it was his obligation to warn them not to trade in Qantas shares;

(v) the fact that Mr McGowan's account was generally supported by the evidence of Mark McGowan and of Mr Dassakis;

(vi) the fact that Mr Rivkin had made mention of his assessment of the prospects of ACCC approval being obtained when he spoke to Mr Dassakis, immediately after speaking to Mr McGowan. 87 The appellant's case on this issue relied upon:

(i) a submission that Mr McGowan could not be believed as a witness of the truth because of the lies that he had told to journalists, and in relation to Impulse's financial statements;

(ii) the fact that neither Mark McGowan nor Mr Dassakis gave evidence of Mr McGowan saying that he believed ACCC approval would be forthcoming;

(iii) the fact that Mr McGowan did not say, in his evidence, that he had a concluded deal;

(iv) a submission that the actual transaction could not accurately be described in law as a merger;

(v) a submission that Mr McGowan may have had three possible motives to lie, two of which (concern that he had broken a promise to keep the information confidential or that he had himself been in breach of the Act) related to the alleged warning, and the third of which was attributable to revenge when the house contract was terminated;

(vi) the fact that there was not a coincidence of evidence between Gerard McGowan, Mark McGowan and Mr Dassakis;

(vii) the evidence of the appellant which contradicted that of Mr McGowan. (c) The "not generally available" element

(i) the absence of any information in press reports and releases concerning the negotiations and possible transaction;

(ii) the absence of the information in analyst's reports;

(iii) the absence of any mention of it in the Rivkin Report of 23 April 2001;

(iv) the fact that the price of Qantas shares increased on the day on which the Australian Financial Review website article appeared and on which the information was published and made public;

(v) the confidentiality of the negotiations between Qantas and Impulse;

(vi) the evidence of Mr Sellars-Jones, and of Mr Gresham, who each said that he was not aware of any information, as at 24 April 2001, from which he could conclude, deduce or infer that there was a deal pending for the merger of Impulse with the business of Qantas; and also

(vii) the context in which the information had been communicated to the appellant, including the warning not to trade in Qantas shares. 89 The appellant relied on the following:

(i) the fact that Gerard McGowan had informed representatives of Impulse's institutional shareholders of the potential deal with Qantas;

(ii) the fact that the information about the potential deal had been made available to a number of advisers who had been engaged in the negotiations and documentation;

(iii) the existence of rumours in the press concerning the possibility of one airline doing a deal with another airline and also concerning Impulse's possible collapse;

(iv) the fact that Gerard McGowan had not acted as if the information about the potential deal was confidential, having regard to the fact he had been content to convey information about it, in the presence of others, including a real estate agent and an employee of the appellant in the course of his negotiations for the purchase of a house;

90 For this element at trial the Crown relied upon:

(i) evidence concerning the price war, and the effect that this was having on the profitability and share price of Qantas;

(ii) the fact that, as a matter of commonsense, the prospect of the Impulse business merging with Qantas would be positive news for Qantas investors and the evidence of Mr Littlewood to similar effect;

(iii) the expert opinion of Mr Sellars-Jones that the information would be likely to influence persons in deciding whether to buy or sell Qantas shares; and

(iv) the increase in the price of Qantas shares which had coincided with the report by the Australian Financial Review as well as the increase which had followed the formal announcement on 1 May 2001. 91 It was the appellant's case, on this issue, that:

(i) a reasonable person would not have expected the information to have had a material effect on the price or value of shares in Qantas;

(ii) Mr Humphris was correct in his opinion that the information would not have influenced investors in deciding whether to buy or sell Qantas shares;

(iii) the content of the information was uncertain and indefinite;

(iv) an investor would have regarded the information to be unreliable; and

(v) it was already generally known that the price war between the airlines was not maintainable and would soon cease as a result of a merger between Qantas and one of the other airlines. (e) The mental element

92 In order to prove this element the Crown relied upon:

(i) the context in which the appellant came to possess the information, including the warning not to trade in Qantas shares;

(ii) the fact that the appellant was a very experienced stockbroker and investment adviser;

(iii) the timing of the instruction to purchase the shares, having been given on the same day as the telephone conversation; and

(iv) the statements made in the Rivkin Report on the day before the telephone conversation, which had advised subscribers against buying Qantas shares.

93 The appellant's case on this issue was that, having regard to all of the circumstances, including the Sydney Morning Herald article, the fact that the appellant had not believed Gerard McGowan, and had not believed that any deals that were done, he could not reasonably have been expected to have known that the information possessed the necessary quality. 94 It was accepted by the parties that the "ought reasonably to know" limb of this element remains one that is subjective to the appellant, having regard to all of the relevant circumstances, including the appellant's mental state at the time: Boughey v The Queen (1986) 161 CLR 10 at 28-29, and the appeal may properly be approached on this basis.

C. THE GROUNDS OF APPEAL AGAINST CONVICTION Ground 1 - Apprehended Bias: There was a miscarriage of justice because there were grounds for apprehension that the trial judge was biased as a result of his previously having acted as a barrister for the accused and in that capacity having received potentially prejudicial information about the accused. 95 There were in fact two ways in which bias of the trial judge was raised during the trial as the basis for a submission that there was a miscarriage of justice. 96 The first, being the subject of this ground of appeal was to the effect that having acted, while counsel, in relation to proceedings in the Licensing Court for the confirmation of the provisional transfer of a licence for a restaurant in Kings Cross, the trial judge received confidential information in relation to the appellant, or, more particularly, in relation to his association with the proposed transferee, which may have reflected on his character and credibility. 97 The precise consequences of that submission were not developed to any extent, it being unclear whether it is now asserted that the trial judge should have disqualified himself, or whether it is suggested that there was a carry over which affected the sentencing decision. What is, however, clear, is that Mr Ellicott QC expressly developed this submission as one involving ostensible bias, rather than actual bias. 98 The second way in which bias arose directly concerned the sentencing proceedings, and related to his Honour's finding that the appellant had displayed "contemptuous arrogance" in relation to the offence. 99 This was said to have demonstrated a "personal animosity or dislike", on the part of the trial judge, for the appellant. Although senior counsel seemed reluctant to embrace, as a positive proposition, that this amounted to an allegation of actual bias, he persisted with it upon the basis asserted, that is, as a personal animosity, which went beyond the assessment involved in a simple finding that was adverse to the appellant upon the issues of contrition and remorse. 100 It was, however, made clear, in the submissions, that there was no suggestion that the alleged personal dislike had arisen by reference to any matter extraneous to the proceedings. Rather, it was put that in the course of, and in relation to the way in which the appellant had conducted himself concerning the proceedings, his Honour had formed an adverse view of him, which then affected his judgment in relation to the sentencing proceedings. So understood, there does not seem to have been any crossover between the two grounds, and they can be considered separately. 101 The facts giving rise to the first ground may be briefly noted. In 1998 an application was lodged for the transfer of the licence of the Jirocho Cathay Japanese and Chinese Restaurant at Kings Cross (of which the appellant was the freehold owner in possession), from the current licensee, Gordon Wood to Joe Elcham. Mr Wood had, at that time, disappeared, and Mr Elcham had an association with the appellant in various businesses that he owned, including a nightclub in Double Bay, and The Cove nightclub in the Sydney Casino. 102 During 1997 the Casino Control Authority of New South Wales had ruled that Mr Elcham was not a fit and proper person to manage the Cove nightclub, and there was an ongoing investigation by the Authority in relation to him. He had been interviewed by the Licensing Enforcement Agency on 29 July 1998 in relation to his own activities and his relationship with the appellant. 103 In addition there had been an article published in the Business Review Weekly on 6 July 1998 concerning the appellant, his business interests, and his associations with various people, some of whom were "colourful characters", including Mr Elcham. 104 These circumstances had given rise to concerns as to whether they might present a hurdle in relation to the transfer of the licence for the Kings Cross restaurant, or in relation to the licence for the Double Bay nightclub. As a result, Mr Gallagher of T E Rummery Partners, who acted for the appellant in relation to licensing matters (but not in relation to the insider trading charges) briefed Mr Whealy QC (as he then was) to appear in the Licensing Court, in case the application became contested. A conference was conducted for that purpose with Mr Elcham, in which he discussed with Mr Whealy QC the matters outlined above, and supplied some information as to his business relationship with the appellant. 105 Counsel was briefed with copies of the Business Review Weekly article, the LEA interview transcript, the application documents, and some correspondence from the Director of Liquor and Gaming, which made reference to the ongoing probity checks, and to the fact of the Casino Control Authority investigation. 106 On 8 September 1998 Mr Whealy QC (as he then was) appeared in the Licensing Court for Mr Elcham, as transferee. After being informed by the solicitor appearing for the Director that the application was not opposed, it was granted by Magistrate Collins, who observed that, in the event of the ongoing probity investigations being unfavourable, any concerns in relation to the licensecould be brought back to the Court by the Director. As a result there was no need for any hearing or determination to be made concerning the probity of Mr Elchamor of the appellant. 107 The fees of counsel were paid by Mr Elcham, and he subsequently received reimbursement from the appellant. Mr Elcham said that he had not brought it to the appellant's attention in relation to the insider trading charges, that the trial judge had previously acted in his interests in the licensing proceedings. Nor, it would appear, had the solicitors or counsel appearing for the appellant in the proceedings before Whealy J been aware of that fact, or of the fact that, following the successful transfer of the liquor licence, the solicitor acting in those proceedings had twice spoken to counsel in relation to the Double Bay nightclub license. As events turned out counsel was not needed for any hearing concerning that license, as it was approved without opposition. 108 It may be accepted that a judge should disclose any facts which might reasonably lead a party to request disqualification (Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited (1996) 65 FCR 215 at 221; Dovade Pty Limited v Westpac Banking Group (1999) 46 NSWLR 168 at 191-2); and that the failure to do so can be one of the circumstances which, along with others, can give rise to a reasonable apprehension of bias. 109 In that respect the test for disqualification is whether a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the question which falls for determination: Johnson v Johnson (2000) 201 CLR 488 (at para 11); R v Maxwell NSWCCA 23 December 1998 and Ebner v Official Trustee (2000) 205 CLR 337. 110 While the test is one of possibility rather than probability, the determination of the relevant question by reference to the impression of a "fair minded lay observer", which involves an objective test, is an important consideration. 111 As was made clear in Webb & Hay v The Queen (1994) 181 CLR 41 (at 52) it is the Court's assessment of the public view, and not its own view, that is determinative. Further, the court must be satisfied that the test is met, not that it might be met: Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376 at 384 per Brennan J. Moreover the element of reasonableness needs to be stressed: Laws v Australian Broadcasting Commission (1990) 170 CLR 70. 112 The criterion for disqualification for bias has been strictly applied, as the following decisions indicate: Dovade; Barbosa v Di Meglio [1999] NSWCA 307 and Kremer v Schwartz [2003] NSWCA 86. 113 It is not the case that a previous professional association between a party and a legal practitioner, who later becomes a judge, will inevitably lead to disqualification. Much depends on the nature and length of any prior professional association, and also upon whether or not the judge may have acquired a particular knowledge concerning the former client, which might give rise to the apprehension of which the test speaks. 114 In Re Polites (1991) 100 ALR 634 at 641, the High Court (Brennan, Gaudron, and McHugh JJ) observed: "A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori , if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination."

115 In the instant case, the prior association was brief, and much, if not all, of the information provided was already in the public domain. The judge did not have any direct dealings with the appellant, and the facts or materials that were of relevance for the proceedings in the Licensing Court, which were principally concerned with Mr Elcham's reputation, were totally unrelated to the issues that arose for consideration in the insider trading prosecution. Further, the factual issues in relation to guilt fell for decision by the jury, rather than by his Honour, whose sole concern with the facts related to sentencing.

116 We are not persuaded in these circumstances that a fair-minded lay observer might reasonably have apprehended that Whealy J might not bring an impartial and unprejudiced mind to the resolution of any question, whether factual or legal, which he had to decide.

117 The second aspect of bias, which is relevant for the sentencing exercise, arises only by reference to the assessment made by his Honour as to the appellant's lack of contrition and remorse. The submission as to the existence of some personal animosity or dislike, based upon the factual findings which were made in the course of a sentencing exercise, is in our view completely unsustainable. 118 It is an essential step, in the fact-finding exercise required for sentencing, that judges form conclusions as to subjective criminality, and as to remorse and contrition. The mere fact that the finding is adverse cannot, of itself, justify an inference of bias. The description of the appellant's attitude to the offence as "contemptuous" did not involve any hyperbole; nor did the reasons for sentence descend into an extravagant condemnation of his misconduct.

119 There is, in any event, a tension between this aspect of the argument and the submissions that were otherwise advanced, concerning the suggested link between the appellant's brain tumour and his behaviour. The submission that his behaviour during the trial, and subsequently, was dismissive of the seriousness of the matter would appear to involve a concession that his Honour's assessment was one that was available upon the evidence.

120 We are quite unpersuaded that his Honour displayed actual or ostensible bias at any point of the trial, whether in relation to this aspect of sentencing or otherwise.

121 In fact, a fair reading of the transcript shows that his Honour behaved with absolute fairness and courtesy throughout the trial, and the somewhat hedging submissions, which were directed in relation to the second aspect of the argument were, in our view, entirely unwarranted.

122 No miscarriage of justice has been shown on this account.

GROUNDS 2 TO 4 INCLUSIVE RELATING TO THE WAY THE CROWN PARTICULARISED THE INFORMATION: 123 The relevant grounds were formulated as follows: "2. The trial judge erred in law in not directing an acquittal, or there was a miscarriage of justice in permitting the matter to go to the jury, because the information that the Crown alleged that the accused possessed (the Information) was not and could not be information for the purposes of s 1002G of the Corporations Act. 3. Further, or in the alternative to ground 1, there was an error of law or a miscarriage of justice as a result of the way that the Crown particularised the Information because, whilst the information was particularised as being that Mr McGowan said certain things: (a) in fact and in substance the Crown presented its case on the basis that the Information was the information that was allegedly conveyed by Mr McGowan, not that Mr McGowan said certain things; (b) the trial judge permitted the Crown to lead evidence and cross-examine defence witnesses (in particular Humphris) on the basis that the relevant information was the substance of what Mr McGowan allegedly said and not merely that he said it. (c) in parts of his summing up, the trial judge treated the Information as being the information conveyed by Mr McGowan, not that Mr McGowan said certain things. 4. Further, or in the alternative to grounds 1 and 2, there was an error of law or miscarriage of justice arising from the way in which the Crown particularised the Information because: (a) the trial judge erroneously permitted the Crown to ask questions of Crown witnesses (in particular Mr Sellars-Jones) and cross-examine defence witnesses (in particular Mr Humphris) on the basis that Mr McGowan was the source of the Information; (b) in his summing up, the trial judge repeatedly and erroneously referred to Mr McGowan as being the source of the Information; which, in circumstances where the Information was that Mr McGowan said certain things, was misleading and confusing for the jury." 124 These grounds rely upon the simple proposition, based upon the particulars, that the information in question was that "Mr McGowan had said that" a particular state of affairs existed or that he had a particular belief, rather than the state of affairs or the belief itself. The relevant submission was specifically raised at the trial, in the context of the application for a verdict by direction, which was dismissed by his Honour, and is repeated in relation to ground 5, which we will deal with separately.

125 It may be accepted that the particulars of the information, which it is alleged were possessed by the appellant, are a critical aspect of the Crown case, and for the conduct of a fair trial: R v Hannes (2000) 158 FLR 359 at para 27 per Spigelman CJ. It is the particularised information that has to be shown to satisfy the elements of the offence, and that sets the ambit for the evidence that is properly admissible.

126 The explanatory memorandum to the Corporations Legislation Amendment Bill 1991 and the terms of s 1002A itself, make it clear that the Information does not need to be "specific". In Commissioner for Corporate Affairs v Green [1978] VR 505, which was concerned with s124(2) of the Companies Act 1961 (Vic), and which similarly did not require the information to be "specific", McInerney J (at 511) rejected a submission that it meant "factual knowledge of a concrete kind, not rumour, possibility or speculative suggestion nor information of a kind that is preliminary or uncertain".

127 In Hooker Investments Pty Limited v Baring Bros Halkerston and Partners Securities Limited (1986) 10 ACLR 462, Young J gave consideration to the meaning of "information" in s 128 of the Securities Industry Code, the successor to section 75A of the Securities Industry Act, which did not require the information to be "specific", observing (at 467/8) that the definition given to "information" by McInerney J in Green came close to that which should be adopted, 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." 128 The distinction which it is suggested was drawn by Young J in this passage between information and knowledge, and the means by which knowledge is acquired, were relied upon in support of the proposition that information or knowledge does not extend to the means of its communication. Upon that basis it was submitted that "information" for the purposes of the section "could not be that someone said something", and that as a result, the Crown case failed in limine. It was further submitted that the Crown departed from its particulars so far as it presented its case upon the basis and, in particular, put to the witnesses, who were qualified as experts, that the "information" was the state of affairs communicated and not the communication itself (that is that Mr McGowan "had said something").

129 Bad faith was asserted in so far as it was argued that the choice of the particulars was "considered and deliberate and made with an obvious (and illegitimate) forensic purpose", namely, with knowledge that Mr McGowan's credit would be strenuously attacked on the basis that the statements which he allegedly made were false. The Crown, it was submitted, deliberately took this course in order to avoid the argument that a false statement could not be "information", by the response that the Information was the fact that Mr McGowan had said something, rather than the underlying facts supposedly communicated.

130 Further, it was asserted that there was an unfairness in the way in which the Crown case was presented and summed up, to the effect that the fact that Mr McGowan had made the relevant statements increased their reliability, in the absence of an express particular concerning the office which he held in Impulse. In this respect reference was made to the fact that his Honour, in his summing up, said, inter alia, that the jury would or should assume that the "hypothetical investor" would be "taken to know that Gerard McGowan was, at 24 April 2001, the Executive Chairman of Impulse Airways and that, as Executive Chairman he would have the means of knowing about and would be expected to know about, the existence of any deal between Impulse and Qantas." This was said to amount to an unauthorised addition to the particulars that was made after the defence address.

131 In our view these are arguments of the most technical kind that are entirely lacking in merit. Equally we are persuaded that the allegation of bad faith should be rejected out of hand. We see no reason why the information should not, in addition to any underlying facts stated, identify the person who made the relevant statements. What the appellant was in possession of was the state of affairs described and its source.

132 That his Honour reached a similar conclusion is evident from his rejection of the submission that the information, as particularised, could not be "information" for the purposes of the section for two reasons: first, that the "inclusive definition of information and the definition itself are very wide"; and secondly, that "the source of the information is capable of having a significant impact on price sensitivity". The imputation of bad faith fails once it is appreciated that the information included the source and the state of affairs communicated. Similarly the argument that the particulars should have included an express reference to Mr McGowan's position in Impulse has no weight since the hypothetical reasonable investor would be taken to have been aware of his office.

133 It is true that, when summing up to the jury on the materiality element, his Honour said that it had to be considered as having been received in a neutral way, that is, without reference to its source having been Mr McGowan. The asserted unfairness in relation to this aspect of the case is dealt with later in these reasons, in relation to grounds 16 and 17. It is sufficient to observe at this stage, for the reasons there stated, that we see no unfairness in this regard. The distinction which the appellant sought to draw in support of these grounds was in our view a distinction without a difference.

134 We also do not accept, in this respect, the argument that information of there in fact being a deal, would be more certain, reliable or material than information that "someone said" that there was a deal, since the former still had to be communicated from "someone". Its potential reliability depends upon its source, and that was a point upon which the experts seem to have been in general agreement.

135 We are unable to accept the even more technical objection that it was confusing for the Crown to have asked questions of the expert witnesses, and for his Honour to have summed up, on the basis that Mr McGowan was the "source of the information". He clearly was the provider of the information and that is precisely what the particulars sought to show.

136 The particulars served the purpose of identifying a conversation in which the Information was communicated to the appellant, and what was said to him by Mr McGowan. The Crown did not deviate from the particulars in seeking to rely upon any other communications, and for all intents and purposes, Mr McGowan's statement that he was merging the Impulse business with Qantas was the same as saying that there was a deal. Clearly in both the particulars and in the appellant's evidence it was described as a transaction that was still conditional, and was one that would effectively result in Impulse no longer being a competitor of Qantas.

137 It was also abundantly clear that the circumstance that Mr McGowan was the source was relevant to the question of the reliability of the information, and hence its materiality. In short, the state of affairs communicated was relevant and the source was relevant.

138 It was properly open to the Crown, in our view, to lead evidence, to cross-examine witnesses, and to make submissions upon the basis that the information included the source as well as the state of affairs communicated.

139 Finally we would reject the argument that was developed during the hearing of the appeal, that information can only be "information" for the purposes of the section if it is received by the person charged under "an obligation of confidence". There is no warrant in the legislation for imposing such a condition upon the recipient of such information. His or her obligation begins and ends with the restrictions on its use, which are expressly laid down in the Act.

140 These grounds have not been made good. Ground 5 - insufficient evidence that the appellant possessed the information particularised 141 This ground was formulated as follows: "5. The trial judge erred in not directing an acquittal on the basis that the evidence led by the Crown was incapable of proving: (a) that the Information in fact ever existed, because Mr McGowan never said the things referred to in the Information; (b) that the accused possessed the Information." 142 In substance, it was submitted that the evidence led did not support the particulars given of the information, and that the manner in which the case was presented involved a latent duplicity.

143 In support of this ground, it was submitted that Mr McGowan's evidence to the effect that "I am currently merging" Impulse's business with Qantas, differed from the information particularised, which was to the effect that "there was a deal for the merging of "Impulse's business with Qantas."

144 Mr McGowan's version, in cross-examination, was to the effect that "we are looking to merge or sell part of our business to Qantas". It was argued that his acceptance that he used the word "negotiating" differed from the version given in chief, and from the particulars.

145 The appellant contended that the objective evidence established that there was no "deal", let alone a completed or "done" deal, at the time of the conversation; at most, there were negotiations. It followed, so it was submitted, that the information that the Crown particularised, did not exist (or on another version of the submissions was untrue), and could not have been communicated to the appellant.

146 The Crown's response, that the substance and effect of Mr McGowan's evidence was in accordance with the particulars, was challenged by the appellant upon the basis that there is a difference of significance between saying that there is a "deal", and that there are "negotiations for a deal". In that regard reference was made to the evidence of both Mr Sellar-Jones and Mr Humphris, to the effect that a statement that there were "negotiations" would be expected to have a substantially different impact on the actions of a reasonable investor, than a statement that there was a "deal", a proposition which his Honour accepted in the reasons given in rejecting the application for a directed verdict.

147 In his reasons, his Honour said: "True it is, that the actual words used by Mr McGowan, when he described what he said in chief, differed from the words in the statement. But the differences were slight and the overall effect materially coincided with the particulars." 148 His Honour, it was submitted, did not, in this paragraph recognise that there was a difference of substance between "negotiating a deal" and a "deal"; and did not give the jury the direction, which should have been given, to the effect that, if they found that it was reasonably possible that Mr McGowan had said that he was negotiating a deal, then they might, or should, have had a reasonable doubt as to the possession element, as well as the materiality and mental elements.

149 In that regard, it was further submitted that his Honour erred in regarding the role of particulars as being confined to providing amplification of "the accused's knowledge of the specific offence charged", and in considering that it was not necessary for the jury to be informed of the particulars, since they formed "no part of the issues" (by which we take his Honour to have meant the evidence), and would provide an unnecessary and inappropriate distraction.

150 Finally, in relation to this ground it was submitted that, in the way that his Honour viewed the charge, it involved a latent duplicity of the kind considered in Johnson v Miller (1937) 59 CLR 467 and S v The Queen (1989) 168 CLR 266 at 274 - 276. 151 In particular reference was made to the observations of Dixon J (as he then was) in Johnson v Miller (at 489): "… the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence." 152 The present case was likened, in this submission, so far as there were said to be different versions of the conversation, to the problem that arose in Johnson v Miller. That case involved a charge for an alleged breach of the licensing laws, in circumstances where thirty men were seen to depart the premises during prohibited hours, and where the Crown refused to nominate which of those persons was the one intended to be relied upon for the purposes of the single offence charged. S v The Queen involved evidence that had been led by the Crown of numerous acts that may have amounted to the charges of carnal knowledge proferred, each of which occurred during the period charged, without the Crown being required to nominate which of the several events was the act charged.

153 Gaudron and McHugh JJ, in S v The Queen, said (at 287 - 288): "The basis upon which the evidence was left to the jury illustrates a fundamental problem which is addressed by the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous accounts. Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to the frequency that the applicant committed one such act within each of the specified periods. In these circumstances, it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant's guilt of an individual act answering to the description of the offence charged." 154 The prejudice occasioned in cases such as those dealt with in these decisions, was identified by Evatt J in Johnson v Miller (at 495); "In substance, the prosecutor was trying to convert the court exercising a strictly judicial function - that of determining guilt or innocence of a single offence - into an administrative commission of inquiry into the question whether, in respect of the Sunday morning mentioned, when there were thirty possible occasions when an offence might have been committed, the defendant could exculpate himself in respect of all thirty occasions." 155 By analogy, it was submitted that the present case presented the same problem in that the appellant was left in the position of having to demonstrate that there was a reasonable doubt concerning each of the possible different versions of the conversation given by Mr McGowan in chief and in cross-examination, and by Messrs Dassakis and McGowan; each potentially amounting to a different offence, that is, that there was a deal, or that he was in the course of merging the businesses, or that he was negotiating a deal, and so on. In that regard, a particular difficulty was identified in so far as it was suggested that the defence needed to deal with materiality, without being certain which version of the information had to be tested. It followed, so it was also submitted, that the appellant could have been convicted in circumstances where the jury were not unanimous on the particular version of the information that had been conveyed.

156 Further, it was submitted, the Crown failed to adduce expert evidence in relation to materiality upon the basis of the information being that Mr McGowan had said that he was "negotiating" a deal. Rather, the Crown examined those witnesses on that basis of the particulars, the reason being, so it was argued, that it realised that it was unlikely to receive favourable evidence if those questions were directed to the materiality of information as to the existence of negotiations, as distinct from a deal. In this regard, attention was drawn to the fact that, when the Crown asked questions of witnesses concerning the possession and general availability elements of the information, it did so in expansive terms including "negotiations", but when it asked questions that went to materiality, it framed the questions in terms of the particulars without reference to negotiations.

157 We are not persuaded that any of these submissions are made good. As previously indicated we consider that the effect of Mr McGowan's evidence was in accordance with the particulars, and with what occurred. Clearly, as at 23 April, the transaction was not a "done deal", but neither the evidence nor the particulars asserted, in our view, that it had the degree of finality for which the appellant contends by reading into the particulars before the word "deal", the word "done", or the word "concluded".

158 It is clear, from the evidence of Mr McGowan, that he used the words "deal" and "transaction" interchangeably, and that he had not used the term "merger", or any derivative of it, in any strict legal sense. Despite the submission to the contrary, we do not consider that he ever departed, in the extensive cross-examination, from the sense in which he had used the term "merging" in chief. At most, any concession was to the effect that there had been no merger in the narrow legal sense given to that expression. Otherwise he maintained his position that he had informed the appellant that, subject to ACCC approval, which he expected to be forthcoming, Impulse's business would be effectively absorbed into that of Qantas.

159 The word "deal" is itself a colloquial expression. Although a degree of uncertainty may attach to it, that does not prevent it from being information, for the purposes of the section, given the extended statutory definition of that term.

160 We are satisfied that his Honour did recognise, when giving reasons for rejecting the directed verdict application, the differences upon which the appellant's submission focused. That appears, self evidently, from the following passages in the judgment: "59. It was plainly not the Crown case that the information said to have been conveyed by Mr McGowan to Mr Rivkin was to the effect that there was a fully completed, fully binding, finalised transaction between Impulse and Qantas as at 24 April 2001. In other words, to adopt the vernacular used by counsel in both argument and before the jury, that there was "a done deal" or, perhaps more accurately, that Mr McGowan told Mr Rivkin that there was "a done deal."

67. I do not accept the defence came to this trial on the basis that the Crown case and Mr McGowan's evidence would be to the effect that Mr McGowan told Mr Rivkin on 24 April 2001 that there was in existence at that time a fully binding, legally completed transaction, in other words "a done deal".

68. The particulars of the information do not state this at all, nor does the statement of Mr McGowan. If the defence had that belief, it was a misapprehension on its part and was not warranted by any behaviour or misbehaviour on the part of the Crown.

69. Moreover, if that was the mistaken belief of the defence, then it would have been immediately dispelled by the evidence of Mr McGowan.

70. It was patently clear before the jury, as I believe it had been clear in any event prior to the trial that the deal spoken of by Mr McGowan to Mr Rivkin was not in terms finalised to completion as at that date. It was in any event as the particulars made clear, and the evidence as well, still uncertain in that it required ACCC approval." 161 The latent duplicity argument may be shortly dealt with. The facts in the present case are very different from those in Johnson v Miller and in S v The Queen. Here there was only one conversation relied upon. The factual issue that arose concerned whether or not Mr McGowan's version of it should be found by the jury beyond reasonable doubt to have been true. The problem that attracted appellate intervention in the cases cited related to the fact that there were a number of facts capable of constituting the offence charged, without the Crown having been tied down to specify which one it was that the jury should consider, in deciding whether the Crown had proved its case.

162 The appellant's submission, in effect, confuses the issue for the jury with that which fell for his Honour to decide, namely whether Mr McGowan's evidence could prove the information upon which the Crown relied as the basis for the various elements in the single offence charged. The jury were left with clear instructions as to their task when considering the second element that the Crown had to prove. Although the substance of the relevant direction was given more than once, it can be noted that it was first given when his Honour was working his way through the written "Elements of the Offence" document, as follows: "2. …

… In relation to the information you will have observed that it is particularised in the "Elements of the Offence" document under three headings, (i), (ii) and (iii). In order to establish the second element of the offence it is necessary for the Crown to prove beyond reasonable doubt that at the time of the procuring of the purchase of the Qantas shares the accused was possessed of all the information set out in paragraph 2 of the document I have read to you. If you are not satisfied beyond reasonable doubt that the accused as at 24 April 2001 was possessed of all parts of the information so described in paragraph 2(1), (ii) and (iii), then you should find the accused not guilty." 163 Then, when dealing with the evidence, his Honour said, after reading Mr McGowan's testimony concerning the conversation: "now put very simply, if you are satisfied beyond reasonable doubt that, first, the conversation in fact occurred in those terms, and secondly, that the essence of the conversation is fairly represented by paragraphs 2(i), (ii) and (iii) of the "Elements of the Offence" document, the Crown will have established beyond reasonable doubt the second element." 164 The fact that evidence concerning the conversation was given by each of Mr McGowan, his brother, and Mr Dassakis, and also by the appellant, did not mean that the Crown relied on more than one occurence. It was for the jury to consider whether there was any conflict between those versions, and to determine ultimately, whether the Crown had proved that Mr McGowan had said the various things identified in element 2 of the directions. The fact that there may have been some differences between the recollections of the Crown witnesses did not give rise to any question of latent duplicity. At most, the differences went to credibility and reliability.

165 The circumstances in which a trial judge can permissibly direct a verdict of acquittal are circumscribed by the principles established in Doney v The Queen (1990) 171 CLR 207 at 215 and Regina v R (1989) 18 NSWLR 74, (1989) 44 A Crim R 404. It is only where it is clear, at the close of the Crown case, that the evidence, taken at its highest, will not sustain a verdict, that a trial judge may exercise such a power. The present case does not fall into that category of case, there being evidence available as to the conversation, which if it were accepted by the jury, could properly sustain a conviction.

Ground 6 - No Prima Facie Case of Materiality 167 This ground was formulated as follows: "6. The trial judge erred in not directing an acquittal on the basis that the evidence led by the Crown was incapable of proving that the Information was capable of or would have been likely to influence persons who commonly invest in securities in deciding whether to subscribe for, sell or purchase shares in Qantas." 168 This ground was based on the submission that the Crown case was undermined by the concession, made in cross-examination by Mr Sellars-Jones, in answer to a question based upon the assumptions that he had read the Sydney Morning Herald article of 23 April, and that he had been told the following day that Mr McGowan had said that there was a deal for the merging of the businesses. It was his answer that he would not have acted either way in relation to Qantas shares, because he would not have been able to make an assessment of the reliability of the information received.

169 Additionally, it was submitted that, as a matter of common sense, a reasonable investor would have been unlikely to have acted in circumstances where he or she had two contradictory pieces of information. As a result, it was argued, there was no case fit to go to the jury on the materiality element, and a verdict should have been directed, at the close of the Crown case.

170 This submission has no merit for several reasons. First, the jury were not bound to accept the evidence of any expert, since the responsibility to find the facts rested with them.

171 Secondly, Mr Sellars-Jones' evidence was not the only evidence that dealt with this issue. The other evidence was capable of making out the Crown case, and it was open to the jury to accept the other witnesses in preference to Mr Sellars-Jones. In these circumstances, in accordance with well-established authority, this argument could not have been made good on a directed verdict application, particularly when taken in conjunction with the other circumstances that were relied upon for proof of the materiality of the information, such as the existence and effect of the price war, and the share price movements.

172 Thirdly, the hypothetical situation against which the opinion was given excluded the critical aspect of the source, and did not accord with the information that was the basis of the Prosecution case. That is evident from the introductory words to the answer which is relied upon, namely "depending on who this mysterious person is who said there is a deal...".

173 Fourthly, while there was an inconsistency between the newspaper article and the particularised information, they were not necessarily contradictory. Each could have been true, in so far as it was possible that Impulse had received additional funding, and had been contemplating a float, while at the same time it had been working on a merger with Qantas.

174 This ground has not been made good. Grounds 7 and 8 - Inadmissible Evidence in Relation to the Not Generally Available Element 175 These grounds were particularised as follows: "7. The trial judge erred in law in permitting the Crown to lead evidence from certain witnesses, including Messrs Sellars-Jones, Anderson and de Teliga, to the effect that: (a) they were not aware of the Information; (b) they were not aware of other Information that was similar to but not the same as the Information, when that evidence was either irrelevant or its probative value was outweighed by the danger of unfair prejudice to the accused.

8. The trial judge erred in permitting the Crown to lead evidence from Mr Sellars-Jones to the effect that he was not aware of any information from which he could deduce, infer or conclude the Information, when that evidence was either irrelevant or its probative value was outweighed by the danger of unfair prejudice to the accused." 176 It was submitted that the evidence which his Honour permitted the Crown to call, over objection, from the Directors of Impulse's advertising agency, and from Mr Sellars-Jones and Mr Gresham variously, that they had not been aware of any information that there had been "a deal", or "negotiations for a possible deal" or a "commercial agreement", or "negotiations for a commercial agreement", or of any information that would have led them to deduce or conclude or infer that there were negotiations for a deal, was inadmissible as either being irrelevant, or because its probative value was substantially outweighed by its prejudicial effect; or because the various versions, or at least some of them that were put, went beyond the particulars.

177 It was submitted, inter alia, that since s1002B(2) was not framed in terms related to actual awareness, and because Messrs Anderson and de Teliga were not within the class of persons referred to in the second limb of the section, the evidence was not relevant. Further, in relation to Mr de Teliga, Mr Sellars-Jones, and Mr Gresham, it was submitted that the fact that they may not personally have been able to deduce, or conclude, or infer from anything that was available that there were negotiations for a deal between Qantas and Impulse, had no, or insufficient, probative value, because it may simply have been the case that they were insufficiently astute to do so.

178 In our view these grounds are without merit. The Crown had to establish that the information was not generally available, and, in the course of doing so, it had to exclude the existence of deductions, conclusions or inferences of the kind referred to, and of any facts from which they might have been made or drawn.

179 This required circumstantial proof, and the Crown was able to do so, in our view, by pointing to the absence of any information in relation to "the deal" in press reports, media releases and analysts' reports of the kind that might have been expected, had the information been generally available; to the terms of the Rivkin Report; and to the price movements on 1 May. Additionally, and significantly, it was entitled to call evidence concerning the confidentiality of the negotiations, a matter that can only be tested by an examination of the success of the steps which were taken. That this was so was demonstrated by the attack made on this aspect of the case by the defence.

180 So far as it sought to rely on rumours, the knowledge necessarily gained by the officers of Qantas and Impulse who had been involved in the negotiations, and their advisers in order to raise a doubt in relation to this element, an attack on these lines was clearly flagged in the cross-examination of Mr McGowan, which had opened up the topic of rumours and the identity of the people whom he had informed of "the deal".

181 In order to meet such an attack, the Crown was, in our view, entitled to call the two persons from Equator Communications, in order to rebut the inaccurate newspaper report which was suggestive of stockbrokers having been aware of an impending collapse of Impulse as the reason for the increase in the share price, rather than the release of the information, and to rebut any suggestion of them knowing of the "deal".

182 In addition, it was appropriate for the Crown to call other persons, such as Mr Sellars-Jones and Mr Gresham, who might have been expected to have heard of the negotiations or deal, or of rumours, or of information from which they could make the deduction, conclusion or inference referred to in the section.

183 We can see no objection to the Crown having put the questions in the way it did, since the various formulations would have been potentially relevant for consideration for the purposes of s 1002B(3). Similarly, we can see no basis in the submission that the prejudicial effect of the evidence would have outweighed its probative value. The use to which it could be put was clear, and we can see no risk of the jury using it in some illogical and prejudicial way.

184 These grounds are not made good. Ground 9 185 This ground was not pressed.

Grounds 10 to 13 - Inadmissible Evidence Concerning the Announcement. 186 These grounds were framed as follows: "10. The trial judge erred in permitting the Crown to lead evidence of rises in the price of Qantas shares that took place after the alleged commission of the offence on 24 April 2001 and in particular rises in the price of Qantas shares that occurred: (a) on the morning of 1 May 2001 shortly before the suspension of trading in Qantas shares on the Australian Stock Exchange (ASX); (b) on the afternoon of 1 May 2001 after a joint announcement had been made by Qantas and Impulse Airlines; when that evidence was either irrelevant or its probative value was outweighed by the danger of unfair prejudice to the accused.

11. The trial judge erred in permitting the Crown to tender charts of movements in the price and volume of Qantas shares traded after the alleged commission of the offence on 24 April 2001, when that evidence was either irrelevant or its probative value was outweighed by the danger of unfair prejudice to the accused.

12. The trial judge erred in permitting the Crown to lead evidence of events that took place after the alleged commission of the offence on 24 April 2001, including: (a) evidence relating to the joint announcement that had been made by Qantas and Impulse airlines on 1 May 2001; (b) evidence relating to an article appearing on the Australian Financial Review (AFR) website on the morning of 1 May 2001; (c) the observations and actions of an officer of the ASX as a result of him seeing the article on the AFR website

when that evidence was either irrelevant or its probative value was outweighed by the danger of unfair prejudice to the accused.

13. The trial judge erred in his directions about the use the jury could make of the evidence of Mr Barnett relating to events that occurred on 1 May 2001." 187 The submission advanced was to the effect that this evidence was irrelevant, since it could not rationally affect the assessment of the probability of the relevant facts in issue, that is, whether the information was generally available, and whether it was material. Alternatively it was submitted that its probative value was substantially outweighed by the danger of unfair prejudice to the accused, or was outweighed by the danger that the evidence might be unfairly prejudicial to the accused or might be misleading.

188 The relevance argument was advanced upon the basis that the trading patterns and price movements, following the announcement, could not rationally affect the assessment of the probability of either of the facts in issue, because the information that was released was of a "fundamentally different" nature from the particularised information. In that regard, its provision of information of considerable particularity about an actual agreement, which was not strictly one for the merger of the two businesses, was compared with what was suggested to have been "vague, uncertain and ambiguous information... about a deal for the merging of Impulse's business with Qantas", and the need for ACCC approval. 189 The s 135 and s 137 submissions similarly depend upon the propositions that, in view of the more detailed and positive information in the announcement, the probative value of the evidence was "extremely slight", and that there was a risk that the jury would overstate it, by consciously or unconsciously equating the particularised information with the announcement. The prejudice attaching to the charts for 1 May 2001 was suggested to have been particularly significant because, so it was submitted, the choice of time frames and scales "graphically exaggerated" the effect of the announcement.

190 The link between the Australian Financial Review website article and "the supposed price spike" was also said to be particularly unreliable and prejudicial, since the article was based on hearsay, and because there was no direct evidence to show that the spike was due to it.

191 In a similar vein, it was submitted that the directions given about the use that could be made of Mr Barnett's reaction to the web site article aggravated the problem and were unfair, in circumstances where no transcript of the article had been tendered, and where his Honour had drawn attention to the fact that Mr Barnett had not been cross-examined in relation to the accuracy of his description of it.

192 Again we are unpersuaded that these grounds have been made good.

193 In particular, we are unimpressed with the submission that the foundation upon which the evidence rested could be tested, and found wanting, by asking the hypothetical question whether, if the particularised information had been generally available prior to 1 May 2001, the trading volume and prices of the Qantas shares would still have increased after the 1 May announcement. While it was contended that the inescapable answer to the question would be yes, we are by no means persuaded that the Court should reach that conclusion, which essentially is a factual one, and would involve an examination, through experts, of the question whether, and to what extent, the information had been factored into the market before 1 May.

194 Next, it may be observed that, in R v Hannes (2000) 158 FLR 359 Spigelman CJ, with whom Studdert and Dowd JJ agreed, gave some consideration to the relevance of the evidence of movements in the price of the securities in question when a takeover, which was the subject of the relevant information, was announced. His Honour observed, in relation to a ground of appeal concerned with the summing up, rather than with the admissibility of the evidence that, "no doubt the effect on the price of securities of a mere prospect (the particularised information) was less than the actuality (of a takeover), but that does not mean that what actually happened was irrelevant to an assessment of the materiality of the prospect."

195 Whether these observations are, or are not, correctly to be regarded as obiter, we consider that they are persuasive. Subject to appropriate directions being given, we consider that evidence of this kind is relevant within the meaning of sections 55 and 56(2) of the Evidence Act, as circumstantial proof, in combination with the expert evidence, of the non-availability and materiality of the information.

196 There was an independent basis for the relevance of the evidence in so far as the defence led from Mr Littlewood, in cross-examination, an opinion that the information was not material because, prior to its communication, "the market had factored in a good chance that due to the price war, one of the players would disappear". Pursuant to leave, the Crown Prosecutor then cross-examined him and secured his acceptance that the fact of the price rise, after the announcement, meant that the market had not factored in the disappearance of one of the players.

197 It is true that there were differences between the particularised information and the public announcement, although there were a number of similarities in so far as the transaction announced involved a merging of Impulse's business with that of Qantas in a practical sense; and that the agreement was subject to ACCC approval. His Honour clearly recognised that the jury needed to exercise care in this regard, and to give proper attention to the fact that the public announcement was in a more detailed form than the information upon which the Crown case was based.

198 He gave a suitable caution to the jury not only at the time that the charts were tendered, but repeated that caution several times during the summing up (at pages 30, 38, 44, 98 and 110/111) in relation to the use of the evidence concerning the share price movements.

199 At the time of their tender, his Honour informed the jury that there were differences between the information and the announcement, so that "you cannot directly compare the effect on the market of those differing pieces of information".

200 In the course of the summing up, he reminded the jury that the announcement was more detailed, that it represented a joint announcement, that it dealt with a concluded agreement, and that, in those ways, it differed from the Information. He also extended the direction to the AFR web site article (at pages 98, 110/111 and 146). In our view these warnings were adequate and they were sufficient to neutralise any unfair prejudice that might have otherwise arisen.

201 We are unable to see why the charts involved an unfair representation, and in particular, exaggerated the effects of the announcement. So far as the evidence and submissions show, they were accurate representations of the trades. We are similarly unable to see why any unfair prejudice attached to Mr Barton's evidence, to which there had been no objection by counsel, nor challenge in cross-examination.

202 In this regard it is also necessary to note the following directions by his Honour: "It is necessary for me to say you would be entitled to look at the price rise on the morning of 1 May 2001 and use it in the way suggested by the Crown only if you were satisfied that there was a connection between the statement on the Australian Financial Review web site and the price rise reflected in the share charts W1 and W2. It is necessary for me to say that it would be open for you to draw such an inference, but, of course, whether you do draw it is entirely a matter for you.

You should bear in mind the caution I expressed to you in relation to the drawing of inferences generally. You will remember I said that you should not speculate and you should not rush to draw inferences. That is not to say that you would not draw an inference in an appropriate situation but it is necessary that you consider all the evidence that was read to you yesterday, and indeed all of the evidence in the trial, before you draw any such inference.

You should give consideration, for example, to whether the evidence establishes that there are reasonable possibilities for the price rise apart from the statement in the Australian Financial Review website. It is only when you have given consideration to all reasonable possibilities arising on the evidence that you would be entitled to draw the inference suggested by the Crown.

Again may I say I am not endorsing either the submissions of the Crown or the submissions of the accused. I am merely stressing to you the appropriate method by which you should approach the resolution of the conflicting submissions that you have heard from counsel in relation to this issue between the parties." 203 There was no evidence of any other event, which had occurred at or about 1 May, which may have explained the price rise. That suggested by the appellant, namely that there may have been a leak that day, had no factual support, and it does not rise above speculation. In any event if a leak of a pending announcement to the effect that Impulse would no longer be a competitor had such an effect, then that would only have tended to confirm the price sensitivity of the information as originally imparted.

204 Having regard to the way in which the case was run, and the absence of any challenge of Mr Barnett's evidence, we see nothing unfair in the comment that was made. Nor do we believe that the jury would have viewed it as having been critical of trial counsel.

205 These grounds have not been made good. Grounds 14 and 15 - Unfair Summing Up in Relation to the Evidence of Gerard McGowan 206 These grounds were formulated as follows: "14. There was an error of law or a miscarriage of justice because the trial judge's summing up was unfair and unbalanced in relation to a critical part of the defence case, namely that the key Crown witness, Mr McGowan, was not a credible witness, because: (a) in outlining the respective cases of the Crown and the accused his Honour did not refer to the passages of Mr McGowan's evidence where he admitted telling material and significant lies; (b) his Honour gave the jury no caution and no directions as to how they were to approach the credit of Mr McGowan and the credibility of Mr McGowan's evidence in light of the fact that he had admitted that he was a liar.

15. There was an error of law or miscarriage of justice because his Honour's summing up was unfair and unbalanced in relation to a critical part of the defence case, namely that Mr McGowan had not said a particular certain thing to the accused (the third element of the Information), because his Honour significantly downplayed the significance of the fact that two of the other witnesses who heard the relevant conversation did not corroborate Mr McGowan's evidence that he said that particular thing."

207 It was central to the defence case that the jury should not accept the version of the conversation given by Mr McGowan, because he was generally not a witness of the truth, and because of the lies which he had admittedly told to journalists and in published Impulse documents. In those circumstances it was submitted that it was insufficient for his Honour to have dealt with this aspect of the defence case by noting, without more, that its case was that the conversation "simply did not occur in the terms alleged by Mr McGowan." In particular, it was contended that he should have read to the jury the defence cross-examination of Mr McGowan, that he should have referred to Mr McGowan's admission to having told "significant lies" and that he should have given directions to the jury as to how that could impact on their assessment of the truthfulness and reliability of his evidence. Further, it was submitted that the summing up was unfair and unbalanced, in that his Honour refused a defence request that he remind the jury that neither Mark McGowan, nor Mr Dassakis, had given evidence in support of the third particular of the information, namely, that Mr McGowan had said that he believed that ACCC approval would be forthcoming.

208 Reliance was placed upon the decisions in Cleland v The Queen (1982) 151 CLR 1 per Gibbs CJ at 10; Domican v The Queen (1992) 173 CLR 555 at 560-561; R v Zorad (1990) 19 NSWLR 91 at 105 and R v Hannes supra at 377 in support of the proposition that fairness requires that, if a judge refers to the evidence on a crucial issue, then it is necessary that there be reference to the competing versions, and the competing considerations, including inferences arising there from.

209 To some extent the appellant's submissions overstate the position. While Mr McGowan did acknowledge that he had lied to the newspaper journalists, he did give some reasons for doing so. Otherwise, it is not the case that he admitted to lies on other occasions, or that he had lied in his evidence at the trial. In relation to the Channel 7 interview, he said that he did not believe that his challenged answer had been untrue, and he rejected the suggestion that it had been a "deliberate lie". Similarly the effect of his evidence was that when he gave answers asserting that the information in the financial statements (Exhibit B) was accurate, he believed that those answers were correct.

210 In the present case it was starkly evident to the jury that there was an issue as to the credibility and reliability of Mr McGowan. His Honour had made that clear early in the summing up when he observed that "counsel has made a very forceful attack upon the credibility and reliability" of Mr McGowan. In that context he made it clear that their concern was with honesty and reliability, and that they had to pay close attention to the witnesses as they gave evidence.

211 When he dealt with the five elements which were identified in the written directions that were given to the jury, he again noted, in the context of the second element, that there was "a major issue" in the trial, as to whether Mr McGowan's evidence of what he had said was "in fact said at all". He also directed the jury, on at least three occasions, that if the jury were not satisfied beyond reasonable doubt, that at the time of procuring the purchase of the shares, the appellant was in possession of the information which it was alleged that Mr McGowan had given to him, then they had to return a verdict of not guilty.

212 When dealing with the evidence and the addresses, his Honour meticulously identified and marshalled all of the competing arguments as to whether Mr McGowan should or should not be believed, and he reminded the jury of the versions, which he and the appellant had given, and of the evidence of Mark McGowan and Mr Dassakis.

213 In the course of dealing with the defence address his Honour noted again that counsel had made a "substantial attack" on Mr McGowan's credit, and "had accused him of being a self confessed liar". He reminded the jury, in a summary way, of the defence argument on the subject, and of its proposition that Mr McGowan was a person on whose evidence the jury "really could place no reliance…at all", and that "no conviction could be safely based on the evidence of such a liar".

214 He also reminded them of the motives which the defence had suggested they should take into account as providing a reason for him to have lied to the jury.

215 When counsel asked for additional reference to be made by his Honour to the cross-examination of Mr McGowan, in relation to the conversation, and in relation to the lies that he had told on other occasions, attention was drawn to the fact that both counsel had already done so in their addresses. It was the Crown submission, in opposition to the defence application, that there was no need for his Honour "to traverse that material again". His Honour agreed with that submission, noting that the jury "have heard very forceful submissions from both counsel and particularly from the defence", and that the matters in question were matters that he would "be reminding the jury about in general terms".

216 In our view his Honour was correct in that approach. The detailed summary, which he gave, of the substance of the evidence, and of the arguments advanced by counsel, underlined what must have already been crystal clear to the jury concerning the critical issue as to Mr McGowan's credibility, and as to the cornerstone of the prosecution case. Nothing was to be achieved by a further reading of slabs of evidence to a jury who had already had the evidence read to them.

217 While it is sometimes necessary for a judge to draw to the attention of the jury, by way of a comment or warning, matters that may have a particular relevance for credibility issues (Part 4.5 Evidence Act), that is something to be assessed in the context of the case, and in the light of the manner in which the issue has been addressed: see R v ITA [2003] NSWCCA 174 at para 90. 218 It is true, where it is necessary for a judicial warning or comment to be given, that it is generally insufficient for the trial judge to confine himself or herself to reminding the jury of what was said in the address of trial counsel: R v Condon (1995) 83 A Crim R 335. However, it does not follow that a judge has to state, by way of a comment or warning, what can only be regarded, in the atmosphere and context of the trial, as the obvious. The jury must be assumed to have a collective common sense, and an ability to understand, and to assess for themselves, issues of credibility, without being told the obvious. There clearly are exceptions that would justify a direction in relation to lies, where there is a risk of the jury using a lie unfairly against an accused. That is the reason for the direction, which attracts an application of the principles in Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234. That is not, however, this case, and we are not persuaded that the summing up insufficiently dealt with this aspect of Mr McGowan's credibility.

219 The complaint that his Honour did not direct the jury that neither Mr Mark McGowan nor Mr Dassakis had referred to the third item in the information, that is, that Mr McGowan believed that the ACCC approval would be forthcoming, can be shortly disposed of, for two reasons.

220 First, it was not a matter calling for judicial authority in the form of a warning or direction. Secondly, in the course of summing up the defence address, his Honour specifically referred to the appellant's submission that these witnesses had not made mention of this third item.

221 It was not fatal that they did not do so, since the recollection of witnesses can, and often does, differ. The result of the absence of evidence from them on this topic meant that there was no independent support for Mr McGowan on that item. The jury were still entitled to believe him. Had some judicial comment been made, then it would have had to be balanced by an observation to that effect which would not necessarily have been helpful to the defence.

222 While a summing up must remain fair and balanced, it does not follow that a trial judge has to remind the jury of every piece of evidence, or of every argument presented by trial counsel, nor is he bound to analyse every factual conflict. As was stated in Domican v The Queen (at 561): "Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or to discuss the evidence." 223 These grounds have not been made good. Grounds 16 and 17 - Summing Up on the Materiality Element 224 These grounds were stated as follows: "16. There was an error of law or a miscarriage of justice because the trial judge erroneously and unfairly directed the jury that in considering the fourth element of the offence the hypothetical investor would or could infer certain things from the Information. 17. There was a miscarriage of justice because the trial judge's summing up in relation to element 4 of the offence and the respective cases of the Crown and the accused in relation to element 4 was unfair and unbalanced because, inter alia: (a) the directions included a direction that a hypothetical investor would know certain factors and would or could draw a series of inferences that were favourable to the Crown case but which had not formed part of the Crown's case in its submissions; (b) his Honour refused to balance his direction by referring to possible inferences favourable to the accused's case that a hypothetical investor might draw; (c) his Honour referred to the Information in terms different to the way the Crown had particularised the Information."

225 It is necessary to extract, in some detail, the relevant portions of the summing up, and to understand the circumstances in which the relevant directions were given, before giving consideration to the argument developed by the appellant.

226 His Honour embarked upon this topic by indicating that he intended to give the jury "a clear direction as to the considerations which you may accept would permissibly be present in the collective minds of the hypothetical investors in Qantas shares at the time the Information... became generally available." 227 He then said: "First, you would be entitled to assume that persons who commonly invest in securities would know the following things:

(a) That Qantas shares were blue chip aviation stocks listed on the Australian Stock Exchange.

(b) They would know the prevailing price of Qantas shares from time to time, and whether the price of those shares was in decline or otherwise as at 24 April 2001.

(c) They would know that there had been a competition price war in the aviation industry related to price structure on the trunk routes on the East Coast of Australia, and that that had been going on through the early part of 2001, and that it was continuing as at 24 April 2001.

(d) Such people would know that the price war had according to press statements and the like, negatively impacted on Qantas share prices and Qantas profitability as at 24 April 2001. They would be taken to know that Gerard McGowan was at 24 April 2001 the Executive Chairman of Impulse Airways and that, as Executive Chairman, he would have the means of knowing about and would be expected to know about the existence of any deal between Impulse and Qantas.

You are entitled as well to take into account the fact that persons who commonly invest in securities would be taken to have the ability to assess the reliability of information, and information of the kind under consideration here. This ability would include a knowledge of matters that are generally available. Such persons would be able to draw inferences from the Information itself in assessing its reliability.

The starting point for this hypothetical group of investors in Qantas... is the following information:

(i) Mr Gerard McGowan said that there was a deal for the merging of Impulse's business with Qantas; (ii) Mr McGowan said that he had to wait until he had ACCC approval of the deal before making the purchase of the property at 5 Rose Bay Avenue, Bellevue Hill, and; (iii) Mr McGowan said that he believed that ACCC approval would be forthcoming.

The test that I have posed - that is the test provided by s 1002C - is an objective test. That means that it focuses, in a hypothetical way, on the whether the information, if it became generally available, would influence or be likely to influence not the accused but, persons who commonly invest in securities in deciding whether to buy or sell shares. Nor does it provide that the persons who commonly invest in securities received the Information in the same way or in the same circumstances that the Crown alleges that the accused did. It takes the information on its face and asks the hypothetical question whether, if that information had become generally available as at the relevant day, would it influence or be likely to influence the hypothetical group of persons in deciding whether to buy Qantas shares.

... You do not look at the surrounding circumstances in which it is said that the Information was conveyed to the accused. For the purposes of the consideration of this element, you must put those general set of circumstances out of your mind. For that reason you must accept that the hypothetical investor would not know that there was a telephone call in the office of Laing & Simmons, and would not know that there were other people present when Mr McGowan allegedly had the conversation with Mr Rivkin. The hypothetical investor would not know in fact Mr McGowan's statement was made to Mr Rivkin at all. In addition, the hypothetical group of investors would not know that a caution was given by Mr McGowan to the accused, if that is what you find he did. Nor would they know for example that a subsequent contract for sale was entered into between Mr Rivkin's company and Mr Gerard McGowan. They would know none of the matters.

Rather you must assume that the Information became known to persons who commonly invest in securities in a neutral way. The information is for the purposes of this element of the offence, assumed to be generally available, and hence readily observable matter. Nevertheless, you would be entitled to find, although it is entirely a matter for you whether you do so find, that the hypothetical group of investors would be entitled to draw certain inferences from the information and take the further information derived by way of inference or conclusion or deduction into account in assessing both the contents of the information and its likely degree of reliability.

The possible matters, and I stress possible because it is a matter for you whether you would draw any such inferences which a reasonable investor might infer, deduce or conclude from the Information in paragraph 2(i), (ii) and (iii) of the "Elements of the Offence" document, and the possible matters of knowledge which such an investor might possess or acquire are these: (a) The statements were made by Mr McGowan in the context of Mr McGowan wanting to purchase the property at 5 Rose Bay Avenue, Bellevue Hill

(b) The statements were made in the context of and included information to the effect that Mr Gerard McGowan needed to delay for a time binding himself unconditionally to buy the property at Bellevue Hill, and that he would need to await ACCC approval to the deal between Qantas and Impulse before finally binding himself to buy the property

(c) Statements made by Mr McGowan linked the timeframe and likelihood of ACCC approval to the need on Mr McGowan's part to delay his entry into a binding contract to purchase the property at Rose Bay Avenue, Bellevue Hill; and conveyed Mr McGowan's belief that the approval would be forthcoming in that context.

I stress that these matters of inference, deduction or conclusion are matters that you might possibly consider as arising. On the other hand, you might comfortably conclude they do not arise...

You are also entitled to bring into account members of the jury on the aspect of the contents of the information and its reliability, the fact that investors may have been familiar with and read the newspaper article published on 23 April 2001, namely Exhibit 2, as well as all the other newspaper articles that were dealing with issues relating to Impulse and Qantas... It is a matter for you to determine whether persons who commonly invested in securities as at 24 April would have been familiar with that article, and whether its contents would have impacted on those persons' views on the Information said to have been conveyed by the Gerard McGowan to the accused on 24 April 2001.

In his address to you, the Crown prosecutor suggested that if a shareholder or investor were told directly by Mr McGowan of the things that Mr McGowan said in his telephone conversation with Mr Rivkin, then the investor would regard the information as being reliable.

Now it is necessary for me to direct to you that contrary to that particular submission the Crown prosecutor made to you, it is not permissible for you to approach this element in that way... You should not approach the test in relation to this element on the basis that the hypothetical persons who commonly invest heard the information directly from Mr McGowan in a conversation. As I have said you approach the test in relation to this element in the following way;

The information before the hypothetical group of investors is limited first, to the information set out in paragraph 2 of the "Elements of the Offence" document. Secondly, it includes any possible reasonable inferences deductions and conclusions which you decide might properly arise from that information as set out in paragraph 2. Thirdly, you are entitled to assume that the hypothetical group of investors already know of certain general matters that might commonly be expected to be known by investors, and you would be entitled to assume they would have the means of testing to one degree or another, the contents of the information so as to make a better informed judgment as to its reliability. They would be taken to know, for example, that the source of the statement was Mr Gerard McGowan and they would be taken to know his position in the structure of Impulse airlines.

In addition as I have said, the hypothetical group of investors would have had access to newspaper articles such as the Herald article on 23 April. It will be a matter for you to determine whether those investors would have read the article or have been likely to have read that article. This observation extends to all other newspaper articles as well which is in the evidence. In that regard it will be a matter for you to determine whether those investors would have read or be likely to have read and digested those various newspaper articles and to form a view as to the manner in which the contents of those articles might have impacted on investors in relation to the present issue.

It is necessary for me to repeat however that for the purposes of this element of the offence, the hypothetical group of investors would not know of the precise circumstances of the telephone conversation between Mr McGowan and the accused, nor for that matter would they know that there was in fact a conversation between Mr McGowan and the accused. Nor would they know it was accompanied by a warning not to trade; nor would they know there was a subsequent sale in relation to the Bellevue Hill property.

If I may return for a moment to the opinions expressed by the experts in relation to this issue. You should take care in examining the factors that they took into account in reaching their opinions. By that I mean that you should discount those opinions to the extent that they may have taken into account matters I have directed that you should not to take into account in relation to this element of the offence. Similarly to the extent to which those experts or any of them may not have taken into account matters which I have indicated you may legitimately take into account, you should similarly discount their opinions to that extent in relation to this element. In the end however, the issue on this fourth element is, as I have said repeatedly, essentially a matter for your commonsense and for your judgment.

The final matter I want to point out to you in relation to this element relates to the Crown argument that emerged yet again on this element, namely that you could take into account as part of your reasoning the price rise represented by or following upon the 1 May joint announcement, and the price spike that occurred earlier in the day after the publication of the Australian Financial Review website statement.

Now I have read you the evidence about those matters, and I have also cautioned you that you need to take into account the difference represented by the information in paragraph 2, and the information represented both on the web site of the Australian Financial Review and the information contained within the joint announcement statement. I do not suggest that you cannot use that material as part of your reasoning, but to exercise a degree of caution in approaching the use of that material."

228 The directions which were given to the jury, and which we have extracted, were discussed with counsel and followed upon his Honour's rejection of an argument, which had been advanced by the Crown Prosecutor that, in considering the materiality and reliability of the information, the jury could take into account, from the perspective of the hypothetical reasonable investor, the precise circumstances in which the information had been received. While it was accepted that the directions as given went some of the way to correcting the Crown address, it was submitted on appeal that they did not go far enough.

229 It was argued that there was no warrant in s 1002G, or in any other provision of the Act, permitting the hypothetical reasonable investor to draw inferences from the matters identified, and that, in any event, the inferences in question were "embellishments, amplifications and possible interpretations" of the particularised information. In that regard it was also submitted that the inferences mentioned were confined to those which were favourable to the Crown case, in so far as they tended to enhance the reliability of the information and the corresponding likelihood that it would influence investors. Yet his Honour declined to add to that list matters that could give rise to inferences favourable to the appellant, other than by reminding the jury of the Sydney Morning Herald article of 23 April 2001, and of "all the other newspaper articles that were dealing with issues relating to Impulse and Qantas".

230 Further, it was submitted, the possibility that the hypothetical reasonable investor might draw inferences was never put as part of the Crown case, with the result that the defence had no opportunity to deal with it in its address.

231 Finally, it was submitted that there was an unfairness in the direction which related to his Honour's asserted "failure to keep steadily in mind that the information as particularised was an intrinsic part of the offence as charged, and to distinguish the information from the evidence led to establish possession of it". In that regard, it was pointed out that there was nothing in the information, as particularised, to the effect that the occasion for its communication was the sale of the appellant's property; nor anything in relation to inferences that might be drawn from it, or from any other information that investors may have had.

232 In our view the directions were both correct and appropriate, in the distinction which was drawn. It was the information as particularised, including its source, that had to be imputed to the hypothetical investor, although the precise manner in which it came to the knowledge of the appellant himself was irrelevant.

233 Further, it appears that the directions were generally approved by counsel for the appellant, including the circumstance that it was appropriate for there to be imputed to the hypothetical investor the matters of background concerning the competition; Mr McGowan's position with Impulse; the possibility that the hypothetical investor may have read the various newspaper articles; and his or her ability to assess the reliability of the information, and to draw inferences from it, in assessing its reliability. There appears, in this regard, to have been a consensus that the information was to be considered by the hypothetical investor as a whole, and in the context in which it was received.

234 So far as we can see, there were no inferences which trial counsel identified as appropriate for addition to those mentioned by his Honour. It was not for the trial judge to speculate about other inferences that may have "favoured" the appellant, and in any event, his Honour made it clear that those which were specifically mentioned were "possible matters" and that it was a matter for the jury to determine whether they should or should not be drawn.

235 These grounds are not made good. Ground 18 - The Verdict was Unreasonable. 236 This ground was formulated as follows: "18. The verdict was unreasonable or cannot be supported, having regard to the evidence, because it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the count in the indictment." 237 It was submitted that, in accordance with the well-known test as stated in M v The Queen (1994) 181 CLR 487 at 493, and in Jones v The Queen (1997) 191 CLR 439, the Court would be satisfied that a reasonable jury, properly instructed ought to have entertained a reasonable doubt in relation to each of the possession, materiality and mental elements. That submission was, in substance, a restatement of the deficiencies, and of the other matters, which were dealt with in the remaining grounds.

238 In summary these submissions were to the following effect:

(a) Possession : That the jury ought to have entertained a reasonable doubt as to this element because no reasonable jury could have: (i) accepted Mr McGowan's testimony concerning the conversation, having regard to the attack on his credibility; (ii) found that Mr McGowan did, in his evidence, say the words set out in the particulars; (iii) accepted that to say that there is a deal is the same as saying that there were negotiations for a deal.

(b) Materiality: That the jury ought to have entertained a reasonable doubt as to this element because, to have been satisfied thereof, it would have needed to:

(i) reject the opinion of all three experts, as well as that of the appellant; and (ii) ignore the concession that was made by Mr Sellars-Jones in cross-examination.

(c) Mental Element That the jury ought to have entertained a reasonable doubt as to this element because a reasonable jury ought to have entertained a reasonable doubt that the appellant knew or ought reasonably to have known that the information possessed was not generally available and had the necessary material quality having regard to:

(i) the circumstances surrounding the events of 24 April and subsequently, including the reading by the appellant of the Sydney Morning Herald article of the preceding day, and his assertion that he did not believe Mr McGowan; the fact that the trade was not made until several hours later and that it was not concealed; and that the shares were sold prior to the announcement; (ii) the need for the jury to reject the appellant's evidence. 239 Having regard to the reasons we have given in rejecting the various grounds of appeal, which were brought together in support of this general ground, it is not necessary to further deal with it.

240 The assessment of the reliability and credibility of each of the appellant and of Mr McGowan, in the light of the whole of the evidence was essentially a matter for the jury. Clearly they were satisfied beyond reasonable doubt that Mr McGowan was a witness of the truth and that the appellant's account of the conversation was untrue. Those were factual findings that were properly open to them upon the evidence. Equally there was evidence upon which the jury could properly be satisfied beyond reasonable doubt of the remaining elements.

241 It was submitted that in the event of grounds 2,5 and 6, or any of them being made out, then the Crown case had a fundamental flaw which could not and cannot now be remedied. It follows, so it was submitted, that the conviction ought to be quashed, and a verdict of acquittal entered. In that regard, it was submitted that the case was not suitable for an application of the proviso for the reasons identified in Wilde v The Queen (1988) 164 CLR 365 at 373. 242 Further, it was submitted that the case was not one where, in accordance with the broad discretion vested in an appellate court (Peacock v The King (1911) 13 CLR 619 and King v The Queen (1986) 161 CLR 423) a new trial should be ordered since:

(a) the evidence was not sufficiently cogent to justify a conviction: King v The Queen; Gerakiteys v The Queen (1984) 153 CLR 317 at 321; (b) it is reasonably probable that, but for the errors complained of, the verdict would, or might have been different: Peacock v The King; (c) the trial miscarried by reason of misconduct of the Crown, in relation to the "ambiguous and unfair way in which [it] particularised the information", it being the case that a new trial would allow the Crown to present a different case, based on different particulars: Parker v The Queen (1997) 186 CLR 494 and R v Anderson (1991) 53 A Crim R 421 at 453. (d) the offence in question was not serious, and it would be grossly unfair to the appellant to put him through the expense and ordeal of a second trial: Reid v The Queen [1980] AC 343 at 350. 243 Since we are unpersuaded that the grounds dealt with so far, or those next dealt with, have been made good, the questions identified in these submissions do not require further consideration.

Grounds 18A to 18C: Miscarriage of Justice and Fitness to Stand Trial, relating to the Appellant's Mental State at Trial 244 The evidence tendered on the appeal reveals that the appellant had undergone surgery in 1987 for removal of a mostly right-sided tumour, and that he had undergone further surgery for removal of a regrowth or recurrence of that tumour in June 2003, following the trial.

245 The evidence, which was received without objection, and which shows the presence of the tumour, and its treatment, is relevant in four respects to this appeal:

(a) First, it needs to be considered in the light of the submission that the appellant had been unfit to stand trial;

(b) Next, it calls for consideration by reason of an alternative submission that his conduct during the trial had been compromised by the tumour in a way that prejudiced him in the eyes of the jury.

(c) Thirdly, it arises for consideration by reference to the submission that he lacked the mental element required for the offence; and

(d) Finally, it was relied upon in relation to the appeal against sentence, as a matter reducing his objective and subjective criminality.

246 The precise grounds of appeal, which are relied upon, in relation to the appeal against conviction are as follows:

"18A. There was a miscarriage of justice because there is a significant possibility or likelihood that the jury would have entertained a reasonable doubt about the guilt of the Appellant if certain evidence which was not available at the time of trial and therefore not led at the trial ("the new evidence") had been led at the trial. That new evidence is, in summary, evidence that: (a) during the course of the trial the Appellant was suffering from frontal lobe dysfunction as a result of a brain tumour; (b) that he had been suffering from the dysfunction at the time at which the offence in the indictment was allegedly committed;

(c) that the dysfunction affected the Appellant's behaviour, demeanour, judgment and rationality;

(d) that such dysfunction was relevant to the mental element of the offence in question, that is, that the Appellant knew, or ought reasonably to have known, that the information in question was not generally available and would have a material effect on the price of the shares in question.

18B. There was a miscarriage of justice because, at the time he stood trial, though this was not known at the time, the Appellant was suffering from frontal lobe dysfunction as a result of a brain tumour (which has since been removed) and as a result of the Appellant's demeanour, judgment and rationality during the trial and, particularly when giving evidence, was adversely affected to the point where it was likely to affect the outcome of the trial.

18C. There was a miscarriage of justice because the Appellant's behaviour including, specifically, his demeanour while giving evidence and the manner in which he answered questions was, or may have been, so affected by his undiagnosed brain tumour and associated frontal lobe dysfunction that it excited prejudice against him on the part of the trial judge and perhaps the jury." 247 Although there was no settled ground of appeal raising the appellant's unfitness to be tried, it became clear, during argument on the second day of the appeal, that this point was taken, it being asserted that there is a question as to whether he had been fit to be tried when he went to trial, by reason of the undiagnosed, and not treated, tumour. Associated therewith was a submission that, had his condition been known, then an adjournment would have been sought and obtained, giving rise to the possibility that he may have behaved differently during, or following, an adjourned trial. 248 In relation to sentence, it was submitted that:

"26. The learned sentencing judge erred by taking into account in aggravation of sentence what he found to be the Appellant's "contemptuous arrogance", in circumstances where it is likely that the Appellant's demeanour during the trial and after the verdict was affected by an undiagnosed brain tumour.

27. The sentencing Judge's discretion on sentence miscarried because, unknown to him, the Prosecution and the Appellant's representatives, the Appellant was suffering from an undiagnosed brain tumour which did, or was likely to, affect his behaviour."

The Evidence Concerning the Appellant's Mental State

249 There was some evidentiary material placed before Whealy J, in the course of the sentencing proceedings, concerning the pre-trial psychiatric history of the appellant, and concerning his behaviour between conviction and sentence. 250 The substance of that material, and the impression which had been formed by the appellant's legal advisors of his mental state, were summarised in an affidavit from Mark O'Brien, who had acted for the appellant for a number of years, and who had also acted for him during the trial. That trial, as he explained, had commenced on 26 March 2003 and had concluded with a verdict on 30 April 2003. The sentencing proceedings were conducted on 26 May 2003, and the appellant was sentenced on 29 May 2003. There had been several adjournments over the intervening period, to allow evidence to be obtained in relation to the appellant's medical condition. 251 Mr O'Brien said in this regard that: "During the course of the trial I had concerns about Mr Rivkin's mental condition and had thought that he was behaving boldly and perhaps self-destructively. Those concerns were shared by both senior and junior counsel. There were examples of inappropriate behaviour such as laughter during cross-examination of witnesses when there was no apparent cause for humour. He spent substantial periods of the trial reading a dictionary rather than attending to what was happening. At the commencement of address to the jury by his own counsel he engaged in particularly inappropriate behaviour. When counsel subsequently remonstrated with him, his response was also inappropriate. What he did was in the sight and hearing of the jury, to request his personal assistant for a nasal inhaler which he then proceeded to use noisily in view of the jury with his head back. It was done ostentatiously as if he wished to distract attention from counsel and to himself. At the close of proceedings on that day, senior counsel said to him words to the following effect: Counsel: Don't you ever do that again. I was trying to make an important point to the jury for you and they were looking at you not listening to me. Appellant: What, you want me to suffocate?

That seems to me to miss counsel's point. During his own evidence, a number of answers, had they been given by a well person, could only be described as very foolish, particularly in a jury trial. One example is his response to his own counsel's question in chief as to his occupation..." 252 Mr O'Brien also made reference to the fact that the appellant had appeared, on the night of his conviction, on his regular stock market advice program which was broadcast over radio station 2SM "Richo and Richa"; and that on 5 May 2003, he had appeared in a pre-recorded interview, which had been broadcast by the Australian Broadcasting Commission on the Andrew Denton program "Enough Rope". That interview, he said, had been recorded during the Judge's summing-up and had occurred contrary to the specific advice of himself and counsel.

253 It is appropriate to note some excerpts from the transcripts, which were tendered upon the appeal, concerning these two appearances.

254 During the "Richo and Richa" program on 30 May the appellant had seemed hesitant to acknowledge the guilty verdict. The following exchange took place between the appellant and Graham Richardson, at the outset of the segment: "GRAHAM RICHARDSON: It has been a big day. Just a short time ago, about an hour or so ago, an hour and twenty minutes ago the jury came in in the Rivkin trial and delivered a guilty verdict. RENE RIVKIN: Well, I don't know about that, I don't know about that. GRAHAM RICHARDSON: Did they? RENE RIVKIN: No, in my opinion - - GRAHAM RICHARDSON: What did they do? RENE RIVKIN: In my opinion what they found was that I had breached some section of the Corporations Act which, may I say, I think is as discombobulated as you can get. GRAHAM RICHARDSON: But I thought the judge said guilty or not guilty and I thought they said guilty. That's what I heard. RENE RIVKIN: Oh, yes, but human beings do make errors. I think that one of the most amazing features tonight is not the decision because I rather expected it, I think the tall poppy syndrome is alive and well, but I have to give a big plug today to a medication…" 255 The appellant then went on to explain that the "plug" was for the medication Prozac, which he said was protecting him from being upset and depressed by the verdict. While the interviewer obviously did not understand the word "discombobulated", and while he was probably joined in that respect by a fair proportion of his listeners, it was not an inappropriate expression, in so far as it conveyed that the appellant found the verdict disturbing. 256 In his interview with Andrew Denton on the "Enough Rope" program, the appellant's exchanges were mainly light hearted, in keeping with the questions asked by the interviewer and with the general nature of the program. They touched upon his background, his family, his problems with depression, and some of his business associations. Although he displayed an air of flamboyance, and disclosed much of his background and family life that many would prefer to keep private, there was nothing in the exchanges to suggest any imbalance of mind, as distinct from a lack of prudence in revealing, publicly, much of himself, at a time when he was the subject of a trial. So far as the insider trading charges were concerned, they were barely touched upon. The only relevant segment dealing with them apart from a suggestion, at one stage, that he thought that he had been "charged with stupidity", was the following: "RENE RIVKIN: Um I help people non-stop, I wish everyone well apart from ASIC. (Audience: Laughter.) ANDREW DENTON: You're not having ASIC flashback are you? RENE RIVKIN: No, no, but you know to be honest with you I've never hated anyone in my life. I think … hatred is a very unproductive feeling because you're the one who hates so it's annoying you and the person you hate he doesn't feel it or she doesn't feel it. But I have to say that in this court case that I've been involved in I've grown to hate quite a few people. And I think it's sad because to have been introduced to this concept of hatred is an unnecessary addition to my life at this stage." 257 The appellant's public comments post-conviction, Mr O'Brien said, were not confined to those two interviews. Additionally, he dealt with the matter at some length in an article that was published in the Rivkin report (Issue 291), on 5 May 2003, and he participated in a further interview on a second Denton "Enough Rope" program, which was broadcast on 2 June 2003. 258 It may be accepted that the discussion in the Rivkin report was imprudent, and somewhat vindictive in its terms, in so far as the appellant was strongly critical of ASIC, and of its Chairman, claimed to have been the victim of a vendetta, and encouraged subscribers to watch the Andrew Denton show, which, he suggested, would provide "a good laugh". On the other hand, he maintained a vigorous defence of his position, and disclosed a comprehensive understanding of the charge and of the proceedings, as well as an appreciation, and acceptance of, the advice which had been given by his lawyers to behave during the trial "as unflamboyantly as possible", and to "try and be of an attitude that was humble, or in other words not [to] be himself." The remainder of the report, so far as it provided investment advice and comment, was detailed and seemingly well informed.

259 The observations made by the appellant and captured in the interviews and letters, were part of the Crown material tendered on sentence, and they were expressly taken into account by his Honour, in the manner which we will later mention, in his reasons for sentence. 260 The sentencing proceedings, Mr O'Brien explained, had been adjourned after he had obtained a report from Professor Ronald Penny dated 12 May 2003, which had raised the possibility that the appellant was suffering from hypomania. On a review of the appellant's general health, which Professor Penny had conducted in March 2003, there had been no adverse findings, although he had obviously been unaware, at that time, of any ongoing or renewed presence of a meningioma. In relation to the appellant's psychiatric health, he had stated: "Rene spent a number of years under review by psychiatrists. I am aware of his depressive episodes at times severe and similarly having at times periods of quite elevated moods suggesting bipolar disease. For some weeks (although not being a psychiatrist or being able to give a competent psychiatric opinion) ??? that Rene now may be in a state of hypomania which should be assessed with review and management by a psychiatrist. The initial impact of sentencing and imprisonment would need to be formally reviewed by a psychiatrist for the potential impact either on the hypomania or depression. In the past psychiatric therapy combined with antidepressants such as Prozac has been of benefit but at this stage I do have significant concerns about an uncontrolled mood disorder." 261 Consequent upon Professor Penny's report, the appellant was examined by a psychiatrist, Dr Robert Fisher, on 14 May 2003. Mr O'Brien noted that the substance of his opinion, as expressed in his report of 19 May 2003, was dealt with by his Honour in the following passage of the reasons for sentence: "Dr Fisher recounted a history of psychiatric illness with the offender first reporting severe depression in 1981-1982. It seems that this was quite a substantial bout of depression and that, it was, however, substantially relieved by the drug Prozac which the offender has taken for the last ten years albeit with an escalating dose. It does not appear that Mr Rivkin has required psychiatric treatment in the last ten years principally because his bi-polar disorder has been controlled by his medication. It was Dr Fisher's opinion that this history did not reveal any evidence of the existence of a hypomanic state prior to the conviction on the insider trading charge. However, Dr Fisher thought that the offender presently reported the symptoms of hypomania and that his general behaviour was consistent with a hypomanic state of mild degree. The two principal matters of opinion stated by Dr Fisher may be summarised as follows: - 1. The offender's state of hypomania has led to him publishing views in his newsletters that may be detrimental to his cause, despite the fact that he has been advised by his own legal representatives that such actions may be detrimental to the outcome of his sentencing process. 2. The likely effect of any sentence of imprisonment, week-end detention or community service order upon him will be dependant upon the mood state he is in at the time. Dr Fisher believes that, if imprisoned on a full-time basis, the offender could move into a state of depression which would require treatment and monitoring. If he were not so treated, his depression could lead to contemplation of suicide. Dr Fisher thought that Mr Rivkin needed to be under the care of a psychiatrist at the present time and that he might benefit from a reduction in the dose of Prozac or the addition of a mood stabliser." 262 Mr O'Brien said that neither he nor counsel had been aware, during the trial, of the possibility that the appellant might have been suffering from some form of organic brain disorder or brain tumour. He said that he had been aware, prior to the trial, that the appellant had been previously diagnosed as suffering from bipolar disorder, and that he "could behave oddly or inappropriately on occasions". He had assumed that the bipolar condition was stable and was being treated appropriately.

263 He said, however, that neither he nor counsel had been aware of the possible effects on behaviour, judgment or cognition, which may result from a tumour or associated frontal lobe syndrome. He added that had he possessed awareness of the tumour he would have sought, and would have expected to receive, instructions to have the trial adjourned, to enable it to be treated. He said that he would also have obtained medical advice to determine whether there was any possibility that the appellant's behaviour in 2001, or his mental state at that time, had been influenced or affected by the tumour. There was however no evidence from the appellant led on the appeal, as to whether he would have given instructions to seek an adjournment, had he been aware of the Meningioma.

264 The presence of the brain tumour emerged shortly after 7 June 2003, the day on which the appellant presented himself at Silverwater gaol for his first period of detention. On the following day he collapsed and was admitted to the Sydney Psychiatric Clinic.

265 Following this admission cerebral magnetic resonance imaging was conducted by Dr Michael Hovany, on 17 June 2003. It was reported as having revealed a moderate sized tumour (a meningioma) located in the floor of the anterior cranial fossa to the left of the midline.

266 The appellant was referred to Dr Pauline Langeluddecke for neuropsychological assessment following the discovery of the meningioma. In a report following this assessment, she observed first, in relation to his behaviour that: "Mr Rivkin presented as mildly disinhibited throughout the assessment. He appeared to relate reasonably openly but was tangential and verbose in his responses and his thinking was very circumstantial and egocentric. Mild slurring of his speech, word finding problems, and word substitutions were apparent throughout the assessment. He appeared to fatigue rapidly and was clearly very drained towards the end of cognitive testing.

Mr Rivkin appeared to perform well on the cognitive tasks. He was very happy to co-operate with tests which were well within his capabilities, reporting that they were "fun...easy". He was impersistent on tasks which he found difficult, often commenting that they were boring and/or not of relevance to him. It was not unusual for him to suggest that I direct questioning to issues which he is knowledgeable about (e.g. the stock market) rather than the task at hand. He occasionally made excuses when unable to perform tasks, reporting that he was having a bad day, was in a bad mood, or was feeling tired.

Overall, my impression was that Mr Rivkin was mildly socially inappropriate, somewhat lacking in insight, and had marked problems with sustained attention. His thinking tended to be simplistic, concrete, and egocentric. These aspects of his presentation, together with his complaint of fatigue, compromised my ability to obtain a complex comprehensive history and limited the amount of formal cognitive testing which I was able to perform."

267 Her overall opinion, as a result of her observations of the appellant's behaviour, during assessment, and the test results, were as follows: "Mr Rivkin's innate or baseline level of cognitive ability was estimated to fall within the High Average range or above on the basis of his educational and occupational history and current performance measures which tend to be more resilient to the effects of neurological impairment and mood disturbance. Relative to this baseline, testing indicates significant impairment in intellectual functioning, with spatially mediated abilities being more severely affected than verbally based skills. Information consolidated in longer term memory and basic attentional functions are preserved but he demonstrates marked problems with sustained attention, severe impairment in his capacity to acquire normal information and retain it over time, a marked decline in mental efficiency (due to both mental and motor slowing), and significant impairment in executive functions related to planning/organisation, self-monitoring, reasoning, and abstraction.

The cognitive deficits found on neuropsychological assessment are strongly suggestive of neurological impairment, with greater involvement of his non-dominant (presumably right) cerebral hemisphere. This is in keeping with the neuroradiological findings. Mr Rivkin's mood disturbance (i.e. hypomania) and current medications are also likely to be contributing to his cognitive deficits but are unlikely to be sufficient to explain them.

Mr Rivkin may demonstrate a significant improvement in his cognitive functioning following the removal of the large tumour which is presently situated adjacent to the left frontal lobe and stabilisation of his mood but there is a significant risk of ongoing cognitive difficulties." 268 Two reports were placed before the Court from Dr Teo, a neurosurgeon, who first examined the Appellant on 17 June 2003, and who on 28 June 2003, carried out surgery on him. That surgery involved a craniotomy accompanied by the removal of a meningioma the size of a golf ball, which had eroded through the base of the skull and infiltrated into the sinuses of the nasal cavity. Some follow-up surgery was performed five days later to repair a leakage of cerebral spinal fluid through the nose.

269 At the time of the initial consultation, Dr Teo recalled that the appellant had appeared to have been "extremely garrulous, to have shown poor judgment" and "at times, to have been irrational". He added that he "seemed extremely disinhibited, and somewhat facile". He found difficulty in communicating with him and thought that his conversation displayed flights of ideas, jumping from point-to-point where there was little connection between the points. His condition, Dr Teo thought, was consistent with the symptoms or manifestations of hypomania and also consistent with a person suffering frontal lobe dysfunction, as a result of the presence of a tumour in the front of the brain.

270 Post-surgery, he reported that the appellant's frontal lobe function was "still somewhat affected by both procedures" and said that he was "still showing some mild disinhibition and irrational thought process." When he next saw him, on 19 August 2003, he said that his demeanour had been significantly different, that he had allowed him to talk, had answered his questions appropriately, had showed appropriate interactions and had not acted in the facile and flippant way in which he had previously acted.

271 It was his opinion that it was more than likely that the tumour had started growing approximately eight years earlier. He considered it to have been a regrowth or recurrence of the previous tumour, and thought that it had almost certainly been present in April 2001. In that regard he explained that histologically the tumour was low-grade, and that it was unlikely that it had been significantly smaller in 2001.

272 Dr Teo said that, assuming the Appellant had a bipolar disorder, it was impossible for him to say exactly how much of the tumour had contributed to his unusual behaviour during the first interview and how much had been due to the bipolar disorder or to any condition, which he had, of hypomania. He did, however, say that he was confident that the tumour and the resultant frontal lobe dysfunction had played some role in his demeanour. In view of the appellant's complex medical history and psychiatric background, he also said that he was unable to exclude the possibility that some of the improvement in his behaviour and demeanour might have been due to better control of his bipolar disorder. In that regard he conceded that the improvement in the appellant's function post-operatively, which emerged from the neuropsychometric tests of Dr Pauline Langeluddecke, would support the contention that the tumour "had contributed significantly to Mr Rivkin's pathological behaviour".

273 In relation to the appellant's behaviour in April 2001, Dr Teo said that frontal lobe tumours, such as those found in the Appellant, can have an effect on frontal lobe function. His report, relevantly, continued to the following effect: "6.1 …Frontal lobe functions control not only the power and voluntary movement of the contralateral side of the body, but also thought processes, such as rationality, judgments, memory, emotion and behaviour. ...

6.2 ...even if the tumour was slightly smaller in April 2001 than the golf ball size that I removed in June 2003, it still could have caused significant frontal lobe dysfunction in Mr Rivkin in April 2001. Frontal lobe dysfunction and associated neurological problems arise largely from the oedema associated with the tumour and not so much from the size of the tumour...

6.3 The pathognomonic symptoms of frontal lobe dysfunction are poor judgment, irrationality, disinhibition, impersistence, perseveration, sometimes memory disturbance, sometimes paralysis in the contra lateral side, emotional lability and changing personality. It can cause persons to engage in odd or unusual behaviour. Persons with frontal lobe dysfunction also have a flat affect, meaning an inability to interact and be spontaneous. Frontal lobe dysfunction also often exaggerated a person's pre morbid characteristics, so if the person was flamboyant, the frontal lobe dysfunction will cause the person to become more flamboyant and more disinhibited.

6.4 In my opinion, the presence of the tumour in Mr Rivkin's brain in April 2001 may have resulted in frontal lobe dysfunction and if so, would have resulted in Mr Rivkin exhibiting the symptoms to which I have referred. In my opinion this would most likely have impaired Mr Rivkin's judgment and adversely affected Mr Rivkin's ability to interpret information that he received and act rationally and with sound judgment in relation to that information. It would have affected his ability to assess the propriety of his actions." 274 In relation to the appellant's fitness to stand trial in April 2003 he offered the opinion that: "7.1 ... Mr Rivkin was almost certainly suffering from frontal lobe dysfunction throughout April 2003 and would have resulted in Mr Rivkin exhibiting the symptoms to which I have referred above. ...

7.3 It would appear to me that dealing with a trial situation and cross-examination requires complex rational thinking of the highest cognitive form. To handle such a situation you would have to be cognitively intact. In my opinion, it would be almost impossible to deal with the situation when suffering frontal lobe dysfunction.

7.4 It would also appear to me that you would need to exercise good judgment and exhibit rationality in the trial and cross-examination situation. As I have said above, one of the hallmarks of frontal lobe dysfunction is poor judgment and irrationality. Frontal lobe dysfunction can also cause persons to act inappropriately and in a disinhibited way. In the trial situation, it could have a bearing on one's ability to show a conciliatory demeanour and cause a person to act offensively, inappropriately and in a contemptuous and critical way towards barristers conducting the case and to the judge. Frontal lobe dysfunction could also have a bearing on one's ability to show appropriate emotion and cause a person to appear disinterested in the proceedings or display other unusual behaviour.

7.5 If it had been known early in April 2003 that Mr Rivkin had the brain tumour and I had been approached in early April 2003 and asked whether in my opinion that Mr Rivkin was medically in a fit state to stand trial, I would have expressed the opinion emphatically that Mr Rivkin was not medically fit to handle a trial situation as a result of his frontal lobe dysfunction, I say this unreservedly." 275 There is something of a difficulty in the expression of this opinion by Dr Teo, since it was not shown that he had any awareness of the requirements for fitness, which were authoritatively established in Regina v Presser [1958] VR 45 at 48, or that he had expressed his opinion in the terms of that test.

276 As we have observed, Dr Teo did take into account the results of the second set of tests which had been conducted by Dr Pauline Langeluddecke on 15 August 2003, and which, as a result, permitted a comparison with the tests which had been conducted pre operatively. Her opinion, post operatively was as follows: "5.2 Neuropsychological assessment on the present occasion represents Mr. Rivkin's functioning just over six weeks after the removal of his frontal meningioma. The very marked disturbance in mood, cognition and behaviour demonstrated on previous testing was no longer apparent. However, Mr Rivkin did manifest significant depressive symptoms. He continued to take mood stabilising medications at the time of testing. Mr Rivkin appeared to be an open and genuine historian and impressed as very keen to perform to the best of his ability on the cognitive tasks. His test results were considered a valid measure of his cognitive functioning at the present time and were not thought to be enhanced by practice effect.

5.3 Mr Rivkin's innate or baseline level of cognitive ability was estimated to fall within the high average range or above on the basis of his educational/occupational history and current performance measures tapping abilities which tend to be relatively resilient to the effects of neurological impairment. Current general intellectual functioning fell within the High Average range. Verbally based skills were within the High Average range or above across a range of tasks and were thought to be well preserved. Spatially mediated abilities were significantly poorer, and generally fell within the Average range. While the pattern of stronger verbal than manual/visuospatial intellectual abilities was thought to be in keeping with innate intellectual strengths and weaknesses, the magnitude of the difference and difficulties with planning/organisation and higher level problem solving on further testing of visuospatial abilities suggested some impairment in this domain. There were no gross deficits in attentional functions or speed of information processing. However mental efficiency was slightly below expected levels, particularly on more demanding attentional and problem solving tasks. Information consolidation in longer- term memory was well preserved. Immediate-short term memory was significantly poorer than expected given his current intellectual capacity, with impairment being more pronounced for visual than for auditory information. Of note on memory testing were difficulties with spontaneous retrieval of information of the kind often found with frontal lobe impairment. Mr Rivkin did not demonstrate any gross deficits on the tests of higher cognitive functions. However, problems with generativity, planning, foresight, and higher-level problem solving were apparent on visuospatial tasks involving information which was detailed or complex.

5.4 Comparison of the present findings with those returned previously indicates a very significant and indeed global improvement in Mr Rivkin's cognitive functioning over time. Similar gains are evident behaviourally. The improvement in functioning is likely to be the result of the successful removal of the large frontal tumour and resolution of his hypomanic mood disorder. Testing on the present occasion reveals ongoing neuropsychological deficits. These include impairment in relation to higher-level visuospatial abilities (e.g. planning and problem solving), immediate-short term memory, and capacity for new learning, a mild decline in mental efficiency, and a slowing in relation to his left hand. These deficits are likely to be due in part to neurological impairment, in particular atrophy of the frontal lobes (as demonstrated on the neuroradiological investigations). The findings suggest greater involvement of his right cerebral hemisphere. Mr Rivkin's depressed mood to state may also be contributing to his reduced mental efficiency and memory difficulties." 277 The appellant has not given any evidence himself, in relation to whether he experienced any difficulty in understanding the proceedings, or in giving instructions to those defending him, or otherwise in following what was occurring. There was also no evidence from his solicitor or counsel, of the kind that was available, for example in R v Mailes (2001) 126 A Crim R 20, to suggest specifically that they had been unable to take instructions from him, or to suggest specifically that he was lacking in any of the Presser requirements.

278 Of importance to the submissions developed in relation to the various aspects of this ground, obviously, is the fact that each of Drs Teo and Langeluddecke observed a distinct change in the performance of the appellant post surgery. In particular this related to the disappearance of the kind of responses that had earlier been regarded as facile, and as having been suggestive of the presence of hypomania or of the kind of disinhibition which is typical of frontal lobe derangement.

(a) Fitness to Stand Trial 279 The test for determining fitness to stand trial is whether the accused has a sufficient mental state, and intellect, to comprehend the course of the proceedings involved in the trial, so as to follow those proceedings, and so as to make a proper defence. The factors to be taken account have been accepted as being those developed in Regina v Presser (supra), an authority which has been consistently followed in this State and elsewhere: see for example R v Mailes (2001) 126 A Crim R 20, R v Zhang [2000] NSWCCA 344, R v Tier (2001) 121 A Crim R 509, [2001] NSWCCA 53 and Kesavarajah v The Queen (1994) 123 ALR 463. 280 In Presser, Smith J outlined these factors in the following passage at p 48: "[An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 281 Where a question of fitness to stand trial arises, either before the trial begins or during the hearing, it is necessary that a fitness hearing be conducted, in accordance with the provisions of s 10 of the Mental Health (Criminal Procedure) Act 1990 (NSW) in the manner explained in Mailes: see Regina v WRC [2003] NSWCCA 394. An exception does exist where the question is raised during a trial, and the presiding judge determines that it has not been raised in good faith. Otherwise, the need to determine the issue is mandatory, and if a trial proceeds with the question unresolved it will lead to a mistrial: Kesavarajah. 282 In those circumstances, it is inevitable, where the question emerges pre-trial, that the proceedings be adjourned in order to allow a fitness hearing to be held. If the question arises during a trial, then the trial must be stopped, and a fitness hearing conducted before a different jury. That will usually lead to the original jury being discharged without a verdict.

283 In the present case, the question of fitness was not identified or raised either pre-trial or during the trial. However, that is not the end of the matter, since fresh evidence may be received, on appeal, to ventilate the issue, it being one that goes to the regularity of the trial. 284 Unfitness to stand trial is not limited to cases of mental illness. An accused's ability to comprehend and participate in the proceedings may be compromised through physical difficulties as well as through intellectual and mental disabilities, or through any combination of them: R v Sexton (2000) 116 A Crim R 173 (at 184) and R v Mailes (2001) 126 A Crim R 20.

285 Moreover the impairment need not be permanent, since the concern is with the state of the accused at the time of, and throughout, the trial.

286 In Kesavarajah the Court held that where the question of fitness arises during the trial, it is obligatory for the Court to direct that such question be determined by a jury, unless it is satisfied that "no reasonable jury, properly instructed, could find that the accused was not fit to be tried." A trial which proceeds absent a determination that the accused is fit, is a nullity, and the proviso to the Criminal Appeal Act, it was held, cannot be applied to save a conviction resulting from it, no matter how strong the Crown case is: see also Eastman v The Queen (2000) 203 CLR 1 and Eastman v Director of Public Prosecutions (ACT) (2003) 77 ALJR 1122.

287 Consideration was given, in R v RTI [2003] NSWCCA 283 to the situation where the question whether the accused was fit during the trial only arises post conviction.

288 That was a case where the accused had been charged under separate indictments alleging sexual offences involving a number of victims. Following convictions entered in the first two trials before Twigg DCJ and a jury, which had involved complaints by his daughters, KI and MI, and pending a third trial, which related to complaints by a son RI, concerns were raised by a psychologist, which led to that trial being adjourned and a fitness hearing conducted. The psychiatric evidence which was then gathered supported the proposition that the accused was, at that stage, unfit to be tried.

289 A fitness hearing was thereafter conducted at which the accused was found unfit to be tried in relation to RI's complaints. It was followed by another fitness hearing, anticipatory of a fourth trial, relating to complaints by another victim RP. 290 As a result of these hearings, a question arose as to whether the accused had been unfit during the first two trials, which had proceeded without any fitness hearing.

291 The evidence that became available in relation to the two fitness hearings, and that which had been provided subsequently in connection with the review of the Mental Health Tribunal, was tendered as fresh evidence upon the appeals brought in relation to the first two convictions. The Crown conceded that the accused had been unfit, and as a result it became unnecessary for the Court to conduct any further evaluation of the evidence itself. The decision is, however, relevant for its analysis of the approach that an appellate court should take, in the circumstances which arose in that case, and which similarly arise in the present appeal.

292 Howie J, with whom Tobias JA and Shaw J agreed said (at para 21):

"In order to enliven this Court's jurisdiction, it is sufficient if there is material before the Court raising a question as to the appellant's fitness to stand trial before Judge Twigg. If such material exists, the Court has to determine whether there was the possibility of a miscarriage of justice arising. If the appellant was unfit at the time of the two trials before Judge Twigg, each of those trials was a nullity and the convictions would have to be quashed".

293 Consideration was given to the procedure which had been followed in R v Kent NSWCCA 25 September 1996 where the question of fitness arose after conviction, but before sentence. The trial judge refused to pass sentence upon the appellant who appealed to this Court against conviction. The court determined that the appropriate course was for it to refer the matter back to the District Court for a fitness hearing, and ordered that, if the appellant was found unfit, such finding should be brought back to it. After referral to the District Court the appellant was found unfit and the matter was brought back to the Court, which later referred the matter to the Mental Health Review Tribunal.

294 Howie J, with whom the other members of the Court agreed, accepted the Crown submission that this procedure should not be followed, for the reason that there is no jurisdiction in the Mental Health (Criminal Procedure) Act for a court to hold a fitness hearing after conviction. His Honour noted that in Mailes and Zhang the Court of Criminal Appeal had quashed convictions in circumstances where the question of fitness had been raised during the trial, but where the procedure required by the Act had not been followed, and concluded (at para 31): "31. In the light of the passages quoted above from Eastman v The Queen and Eastman v DPP (ACT) , it seems to me that the procedure adopted in R v Kent is no longer appropriate. If there is material before this Court which raises a question about the propriety of the conviction because an appellant may have been unfit to stand trial, the Court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the court acting reasonably must have found that the accused was fit to stand trial. It is only if the Court can come to that finding that there will be no possibility of a miscarriage of justice ." (Emphasis added).

295 In our respectful view this paragraph is a correct statement of the law, and it is by reference to it that the material which has been placed before us should be considered.

296 So far as the present case involves a temporary condition, which was amenable to treatment, and which has since been reversed, so that no current question of fitness arises, it does differ from most, if not all, of the other cases which have attracted an application of the Presser requirements.

297 The central question which arises, in this respect, is whether a reduction in the capacity of an accused to meet the Presser requirements, but which falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects, is sufficient to constitute unfitness, and to justify appellate intervention, in accordance with the test previously mentioned.

298 In our opinion, that question should be answered in the negative. The Presser test is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness.

299 Any other approach might invite invidious comparisons between accused of different intellectual backgrounds or personalities. It could also invite a fruitless search for a hypothetical accused with the capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level of skill.

300 That is not the concern to which the Presser test is addressed. Inevitably there will be accused who could have done better in a trial, had they possessed a more attractive personality, greater intelligence or education, improved communication skills, a deeper appreciation of the factual and legal issues, or even a better appreciation of the trial process, than those possessed or displayed at trial. It does not necessarily follow that they were unfit to be tried.

301 That is because the question of fitness to be tried relates to the essential requirements identified by Presser. If the understanding and the mental and physical capacity of an accused means that he or she meets those requirements, then that accused is fit to be tried - a question which is itself to be decided upon a balance of probabilities. The test does not contemplate or assume that an accused is able to perform at trial according to his or her maximum potential. 302 This conclusion has support in the prior decisions which were cited with approval by Gleeson CJ in Eastman v The Queen in the following passage: "[25] In the case of Berry Geoffrey Lane LJ, criticising a direction to a jury empanelled to determine an issue of fitness to plead, said: 'It may very well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on.' [26] The Ontario Court of Appeal, in R v Taylor , recorded the following propositions, agreed by counsel, as representing the state of authority in that province: '(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial. (b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial. (c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial. (d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.' [27] In the present case, the ultimate test to be applied is the statutory test set out earlier. However, each of the above propositions is sound, and they are consistent with the statutory test." (Citations omitted; and see also R v Miller (No. 2) [2000] SASC 152 and R v Dunne [2001] WASC 263. 303 A reading of the transcript suggests that the appellant had been able to give evidence in relation to the matters in issue, that he had a clear understanding of what was involved in the offence charged, and was able to make the answer, which he wished to make, in relation to it. That circumstance, and the absence of any evidence from his legal advisors to suggest that they had problems in taking instructions or explaining the proceedings to him, or from the appellant to suggest that he had any such difficulty, leads us to conclude that this ground has not been made out, to the point where, in accordance with the decision in R v RTI the conviction should be quashed.

304 The additional evidence concerning the appellant's behaviour during the trial, and the evidence which was directed to his natural personality and to the post verdict reaction, has a more direct relevance for the next two submissions, and it is accordingly addressed in more detail in relation to them. (b) Adverse Impression in Relation to Credibility 305 In the event of the Court not being satisfied that the conviction should be set aside on the ground relating to the appellant's fitness to be tried, an alternative argument as to the occurrence of a miscarriage of justice was developed.

306 This related to the possibility that the jury may have considered the appellant's behaviour during the trial, including his responses to questioning, as having reflected adversely upon his credibility, without being aware that he had an undiagnosed brain tumour, which may have influenced his behaviour and his responses.

307 It also related to the possibility that, had the trial been adjourned, so as to allow the appellant to undergo the necessary surgery, then he may have performed better at a later trial, or not displayed characteristics that may have affected the assessment of his credibility and/or contrition by the jury and his Honour respectively. 308 While the existence of the bipolar disorder had been known, and was understood to be under control, it is the case that the presence of the tumour had been undetected and unsuspected, and it was obviously impossible for the jury to have received any evidence, or instruction from the trial judge concerning it. 309 The alternative submission depends upon the propositions that:

(i) the undiagnosed brain tumour caused the appellant to behave, and to answer questions, in ways that would not have been the case, absent the tumour;

(ii) the ways in which he behaved and answered questions were material factors for the jury decision, in so far as that decision turned upon demeanour and credibility; and

(iii) the absence of any evidence, or caution, concerning the effect that the tumour may have had upon the appellant, led to a miscarriage of justice.

310 In order to qualify as fresh evidence, in relation to this ground and the next ground, the evidence concerning the discovery of the tumour and its consequences must be shown to be evidence which was not known, and which could not reasonably have been ascertained, at the time of the trial: Drummond & Domican (No 2) v R (1990) 46 A Crim R 408 and Henry v R (1992) 28 NSWLR 348. It must also be shown to be evidence that would be properly admissible in a trial. 311 Where it qualifies as such, then its admissibility and effect depend upon the decisions in Gallagher v The Queen (1986) 160 CLR 392 and Mickelberg v The Queen (1989) 167 CLR 259; and see also R v Bikic [2002] NSWCCA 227. 312 The ultimate question is whether there was a miscarriage of justice at the trial (Gallagher at 395 per Gibbs CJ; at 402 per Mason and Deane JJ; and at 410 per Brennan J), as to which the Court needs to ask itself whether there is a significant possibility that the jury, acting reasonably, would have acquitted the accused of the charge, had the evidence been before it: Mickelberg at 273 per Mason CJ, and at 288-9 per Deane J; or whether the jury, if it had received the evidence, would have entertained a reasonable doubt about the guilt of the accused: Mickelberg at 275, per Brennan J and at 301-302 per Toohey and Gaudron JJ, where they observed: "The underlying rationale for a court of Criminal Appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, e.g., Gallagher v The Queen . There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen , per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen .

There is no precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be "credible", "cogent", "relevant", "plausible": see, e.g., Gallagher ; Craig v The King ; Ratten ; Lawless . In essence, the fresh evidence must be such that, when viewed in combination with the evidence at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher , per Brennan J.) or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the [accused]" ( Gallagher , per Gibbs CJ and per Mason and Deane JJ). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless , per Mason J, and Gallagher , per Brennan J, but cf. Barwick CJ in Ratten .

To determine whether or not the jury might have entertained a reasonable doubt as to guilt it is necessary to identify, with some precision, the issue to which the fresh evidence is directed."

313 Whether the evidence be fresh or new, if, when taken in conjunction with the remaining evidence, it shows the accused to be innocent, or raises a reasonable doubt as to his guilt, the proper course for the appellate court is to set aside the conviction outright. If it fails to have that quality, but nevertheless shows that it is likely that a verdict of acquittal would have been returned by the jury, having been possessed of the new evidence, then the proper course for the court is to set aside the conviction and to order a new trial.

314 While the tumour would have been discoverable at the time of the trial, had appropriate testing been conducted, there seems to have been no suspicion as to its presence, or any reason for the appellant to have undergone, at that stage, any neuropsychometric testing or MRI study of his brain. As such, it appears to us properly to answer the description of fresh evidence, and we propose to consider the argument on that basis. 315 It has been held that if the fresh evidence goes only to the credit of a witness at the trial, then it must be such that if accepted, it would so affect the person's credit that, having regard to the part he or she played in the trial, it is likely that a jury would have arrived at a different verdict: Saleam v R (1989) 16 NSWLR 14, applying R v Palmer NSWCCA 29 November 1976, and R v Eustace NSWCCA 18 June 1981; and see R v Liosatos [1964] SASR 40; and Zaidi v R (1991) 57 A Crim R 189. These authorities were concerned with witnesses other than the accused. However, subject to the question of admissibility, to which we will return, we see no reason why any different approach should be taken in relation to fresh evidence which may relate to the credit of the accused, as a witness. 316 A threshold question however arises as to whether evidence, which might explain the unusual or unfavourable way in which an accused presented as a witness in Court, is admissible. 317 Clearly there are parties or witnesses, who by reason of their physical appearance, manner of dress or speech, aggressive attitude, unusual or unpleasant personality, or otherwise, are likely to present an unfavourable impression of themselves to a jury; just as there are others whose appearance of confidence and intelligence, and general style, are likely to generate a favourable reaction.

318 In most instances there will be no occasion for a trial judge to give any caution or instruction to the jury concerning these matters, let alone any occasion for evidence to be called in relation thereto. Individuals vary to a very considerable degree in matters of personality, intelligence, appearance, demeanour and the like, and equality of justice does not require any adjustment to be made for those matters. They are, in any event, considerations which are self evident to juries, and they do not call for any special expertise on the part of judges to understand them; nor do they require the weight of judicial authority to be applied, by way of a caution, concerning their relevance to the fact finding exercise.

319 On the other hand there are matters which might potentially be drawn to the attention of jurors, by way of evidence or otherwise, which could be relevant to questions of demeanour and the like, and which may arise from an unknown or underlying disability which is not self-evident. That might be particularly so where the problem is due to a temporary condition, which alters the usual state of the accused or of the witness, and temporarily disadvantages him or her.

320 In Toohey v Metropolitan Police Commissioner [1965] AC 595, it was held by the House of Lords that medical evidence concerning an illness or abnormality, affecting the mind of a witness, and reducing his or her capacity to give reliable evidence, is admissible.

321 Lord Pearce, with whom the other Lordships agreed, said (at 608): "Human evidence shares the frailties of those who give it. It is subject to many cross-currents such as partiality, prejudice, self interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and commonsense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of 50 yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than 20 yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeing what he thought he saw. So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise."

322 His Lordship added (at 609): "Medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to the general opinion of the unreliability of the witness but may give all the matters necessary to show, not only the foundation of and the reasons for the diagnosis, but also the extent to which the credibility of the witness is affected."

323 There has been at least one case in this country where evidence falling within the Toohey principle has been received post-conviction, and which has led to a new trial being ordered.

324 That case is Coombe v Bessell (1994) 4 Tas R 149, where the court was concerned with an appeal from a conviction found by a magistrate, whose reasons had disclosed that the matter of demeanour had been of "principle importance in determining credit" in the case, particularly that of the appellant. The reasons further disclosed that the particular aspects of demeanour which had led him to take an adverse view of the appellant's credibility related to a tremor in his voice, and the difficulties which he seemed to have had in answering questions put to him.

325 In fact he had a speech impediment, which was known to manifest itself in the ways that led the magistrate to conclude that he had been an uneasy and non-credible witness. The existence of that speech impediment had not, however, been brought to the attention of the magistrate.

326 It was submitted by the Crown that evidence to reveal the existence of the impediment would not have been available at trial, and that a new trial would therefore be pointless, by reason of the rule that evidence will not be admitted where its sole purpose is to bolster the credibility of the witness (R v Turner [1975] QB 834 at 842). That submission found no favour with his Honour who observed, consistently with the similar approach taken in Toohey: "In the present case the principle is capable of being applied by analogy so as to make admissible evidence of an abnormality suffered by the applicant which, if it were not revealed, would prevent the trial court from properly assessing that evidence. If a physical or mental abnormality suffered by a witness which tends to reduce the reliability of evidence given by that witness may be proved then such an abnormality, which if unexplained might be taken as a matter adversely reflecting on the credit of the witness, also may be proved. Clearly it would be relevant evidence. There is no rule which would require that it be excluded."

327 In Zaidi, Priestley JA (with whose reasons Allen and Badgery-Parker JJ agreed) made reference to a number of decisions where fresh evidence had been received, which went to the credit of a material witness, including Davies and Cody v The Queen (1939) 57 CLR 170, R v Edwards (1985) 20 A Crim R 463, and R v Linskey (1986) 23 A Crim R 224. His Honour noted (at 195), in relation to these decisions, and the narrow statement of principle which had emerged in the judgment of the South Australian Supreme Court in R v Liosatos [1964] SASR 40 at 44, that: "Although there is some variation in the statements in the above cases of the strength of the fresh evidence necessary to require a new trial, they all clearly proceed on the view that the new trial will be granted if the court's assessment of the bearing the fresh evidence would have had in the circumstances of the trial is of such significance as to cause the court to think the interests of justice require that the verdict and conviction be set aside." 328 This decision, and those cited, however, predated the Evidence Act, and its statement of the credibility rule and the statutory exceptions thereto. 329 S 102 of the Evidence Act now provides: 102 The credibility rule Evidence that is relevant only to a witness's credibility is not admissible. 330 The statutory exceptions to the rule, which are mostly concerned with material that would tend to discredit a witness, include evidence that is adduced in cross-examination (ss 103 and 104) and evidence in rebuttal of denials (s 106). The exceptions which permit evidence to be called to support the credit of a witness include evidence adduced in order to re-establish credibility (s 108), and in relation to character (s 110). 331 Credibility is defined in the dictionary to the Act as meaning …the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. 332 The width of the definition makes it clear, as was confirmed in R v Milat (NSWSC Hunt CJ at CL, 9 April 1996) that the section applies both to evidence which bears generally on the reliability of a witness, as well as to evidence that bears on the reliability of particular testimony of that witness. 333 The decision in Adam v The Queen (2001) 207 CLR 96 makes it clear that the credibility rule is only engaged where the evidence is relevant solely to a witness's credibility; it is not engaged where it may additionally be relevant for proof of a fact in issue, or for some other purpose. 334 The line between evidence that is relevant to a fact in issue, and evidence that is only relevant to credit, is not always easy to draw, and as McHugh J had earlier observed in Palmer v The Queen (1998) 193 CLR 1 (at 22 to 24), that line: "… is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent. Zuckerman has correctly described the distinction between evidence as to the credibility of witnesses and evidence as to facts-in-issue as productive of absurdity. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them. 52 The rationale behind the credit and facts-in-issue distinction does not depend on logic. It "is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness". It is rooted in the need for "case management" rules. The distinction is regarded as necessary to prevent the trial of a case being burdened with the side issues that would arise if parties could investigate matters whose only real probative value was that "they tended to show the veracity or falsity of the witness who was giving evidence which was relevant to the issue". It is for that reason, as Lord Pearce pointed out in Toohey v Metropolitan Police Commissioner that '[m]any controversies which might ... obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them'. 53 That being so, the evidentiary rules based on the distinction between issues of credit and facts-in-issue should not be regarded as hard and fast rules of law but should instead be seen 'as a well-established guide to the exercise of judicial regulation of the litigation process'

… 55 No doubt considerations of case management require that not all evidence going to the credibility of a witness should be admissible. Much of it, while relevant to the issues in a logical sense, has so little probative value with respect to those issues that it is impracticable to admit it. For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness's denials on matters going to credibility is not ordinarily admissible . In this, as in other areas of the law of evidence, a distinction exists between what is relevant and what is admissible. In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of a relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof. If evidence going to credibility has real probative value with respect to the facts-in-issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue. 56 The rigid distinction between credit and facts-in-issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts-in-issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts-in-issue. "

335 S 106 of the Act permits the calling of evidence that would have the effect of discrediting a witness, in the several ways provided. Subsection (d) of that section, which provides an exception in relation to evidence that tends to prove that a witness "is, or was, unable to be aware of matters to which his or her evidence relates", has been interpreted broadly, as extending to many aspects of reliability or credibility, including psychological, psychiatric, or neurological considerations. 336 In R v Souleyman NSWSC Levine J, 5 September 1996 evidence was admitted in the form of a psychiatric report to show that a witness was histrionic and dependant, and prone to lying, on the basis that it tended to prove that the witness would neither know the truth nor want to know the truth. 337 The section would also permit the calling of evidence of the kind Lord Pearce spoke of in Toohey, from an ophthalmologist (oculist) concerning the short-sightedness of a witness, where that would be relevant to an acceptance of his testimony, that is, provided the substance of the evidence to be called had been put to the witness and denied. 338 Section 108 of the Evidence Act, which is concerned with re-establishing credibility provides: Exception: re-establishing credibility 108 (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. 339 The remaining provisions are of no relevance, being concerned with the admissibility of prior consistent statements. The section, accordingly, has a more restricted application than s 106, and tends to reflect the common law rule that prevented evidence being called in a party's case that might tend to bolster the credit of a witness called by that party (R v Turner [1975] QB 834 at 842). The provision broadly accords with the common law rule, which permitted re-examination that was directed towards explaining away or qualifying facts elicited in cross-examination, which were prejudicial to the witness's credit, or from which prejudicial inferences could be drawn: Wentworth v Rogers (No 10) (1987) 8 NSWLR 398. 340 The ambit of permissible re-examination is set by s 39 of the Act which provides: 39 On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave. 341 A serious question does arise, in these circumstances, whether the fresh evidence would have been excluded under s 102 of the Evidence Act, as not falling within any of the exceptions to the credibility rule, at least so far as that section relates to evidence that was designed solely to re-establish the credibility of a witness, including an accused. 342 Arguably, it could have been received at trial, or at a re-trial, if it was tendered as evidence that additionally went to the appellant's mental element (Adam), which was one of the essential elements for the offence charged. 343 Further, depending upon the nature of the cross-examination, the existence of the tumour might have been ventilated in the re-examination of the appellant (s 108(1)). Any such evidence would almost certainly have had to be limited to the existence of the tumour, and to its effects upon the appellant, as he perceived them. Such re-examination would not, in our view, have permitted the accused to give, for example, hearsay evidence as to the content of the expert opinions of Drs Teo and Langeluddecke. 344 Otherwise, it could only be received if Toohey, which was concerned with the reliability of a prosecution witness, can be seen as creating an exception to the credibility rule or as dealing with an aspect of reliability that falls outside that rule, which would then allow an accused to bolster the credibility of himself (or of a witness called in his case), by placing before the jury any psychiatric, neurological or similar conditions which may have given the jury a distorted impression of his evidence. 345 We do not consider it necessary to finally determine this latter point, for the reason that we are unpersuaded, even assuming the evidence to have been admissible, and to have been available at the close of the case for the accused, that it would have established, in accordance with the tests previously mentioned, a miscarriage of justice. 346 In that regard, a reading of the transcript does not suggest that the appellant's answers, either in chief or in cross-examination, were necessarily inappropriate or non-responsive. In chief he provided a comprehensive account of his background, including his activities as a stock broker, as a very active share trader, as a manager of funds, as the author of the Rivkin Report, and as the founder and Chairman of Directors of Rivkin Financial Services Limited, as well as an explanation of the operations of that company and its subsidiaries. He acknowledged an awareness of the insider trading laws, and he gave precise answers in chief to the questions put to him in relation to his telephone conversation with Mr McGowan. 347 He confirmed and gave precise and clear evidence concerning his recollection of having read the article "Impulse Tops Up Reserve Tank" on the morning of 23 April 2001, its impact upon him, and his reaction to Mr McGowan's phone call, to the effect that he had not believed a word of what he had said. 348 He similarly recalled, and gave clear and precise evidence in relation to the circumstances that led to the acquisition of the Qantas shares on the afternoon of 24 April when, according to him, Mr Kerstens had phoned him and recommended a purchase of 50,000 shares. He similarly gave a clear and precise account of the circumstances that led to the sale of these shares and of a short sale that he also made. In that context he gave a perfectly rational explanation of the practice of short selling. He provided an equally rational explanation in relation to price sensitivity and the importance of market perceptions of a deal for that sensitivity. 349 In cross-examination it appears to us that he did not behave with any lesser degree of clarity, rationality, or judgment in relation to the answers that he gave concerning the implications of an option or conditional contract to buy real estate. 350 It is true that, at times, he revealed some irritation with the cross-examiner related to repeated questioning on the same topic. On our reading of the transcript there was a degree of justification on his part, in that the cross examination was not particularly economical, or always relevant to the critical issue in the trial. It did tend to be somewhat repetitive and imprecise, particularly on the second day. However, when the cross-examiner focused, for example, on the proposition that the appellant had wanted to speak to McGowan directly to "find out precisely what this business deal [was] that he regarded as… a reason for [him] to accept an offer [for the house] which was conditional", he replied with an emphatic negative. 351 He accepted, frankly, and without any qualification of significance, an awareness of the public information, which had been released in relation to Qantas, of the fierce competition that had existed between the various carriers in the lead up to April 2001, and of the slump in Qantas' share price that he had seen on the screens. He also accepted, without argument, that his assessment in the Rivkin report of 23 April 2001 had been that the "situation in the Australian airline industry is a mess", that he could not and would not attempt to guess what might happen "in the short term", but that "taking a long term view, the stock was cheap". 352 When pressed as to whether he had one view which he used when investing for himself, and another view which he portrayed to subscribers to his newsletter, he agreed and explained, in a perfectly rational way, the different considerations which applied to a professional broker such as himself, and to lay investors. 353 In relation to the following otherwise insignificant exchange in the cross-examination, the appellant demonstrated his close attention to the questions being put, and his acuity of mind: "Q. When was this conversation you had with Mr Dassakis? A. I think it was on the phone after. That telephone call lasted, I think, about four and a half minutes, or five minutes, and 45 seconds of that was McGowan and the rest was Dassakis. Q. You weren't timing your conversation with Mr McGowan, were you? A. No, but I checked subsequently. Q. Did Mr McGowan then hand the phone back to you and you had a conversation with Mr Dassakis, is that what you're saying? A. To whom? He couldn't have handed it back to me because I wasn't in the room. Q. I'm sorry. He handed the telephone back to Mr Dassakis and you had a telephone conversation? A. Whether he handed it back or he handed it to the brother to hand back, I don't know the answer."

354 The high point, so far as it is contended that the appellant did himself a disfavour by his behaviour in the witness box, seems to relate to his complaints that he had previously answered the question which had been put, and to answers such as the following: "Q. You understood - well, inferred that what Mr McGowan was talking about was that his business was going to be in effect taken over by Qantas and that Impulse would be disappearing as a competitor of Qantas? A. No. Q. If that happened you would understand that there would be a lessening of competition in the airline market? A. If what I didn't think was going to happen did happen, yes. Q. That was the sort of deal that would require ACCC approval? A. Yes. Q. Such a deal would be good news for Qantas? A. Such a deal would be good news for Qantas. Q. And investors might react favourably to that news and be influenced to buy Qantas shares? A. Just because of that news? Q. Yes? A. Well, there are other factors to be considered. As I said, there's no one piece of news that ever gets anything done in the stock market. Q. It's a simple proposition. Investors might react favourably to that news? A. I don't know. I --

Q. And be influenced to buy shares? A. It's coming out very clearly, Mr Crown, that you don't understand the stock market and that investors have different sorts of motivations for doing different sorts of things at different times. As I indicated to you yesterday, sometimes investors sell a stock when it's making a takeover offer because of perceptions of the price to be paid. Yesterday I indicated to you that if they had, for example, paid 200 million dollars for what I regarded as moribund airline, the stock would have fallen. I did answer that yesterday.

Q. The 200 million dollars wasn't paid, was it? A. I still don't know what was paid.

Q. All I'm putting to you is that investors might react favourably to the news that Impulse was disappearing from the scene and that they would understand that would be good news for Qantas and be influenced to purchase Qantas shares accordingly? A. Your Honour, I've answered that three times.

CROWN PROSECUTOR: Q. All I'm putting to you is that investors might react favourably to the news that Impulse was disappearing from the scene and that that would be good news for Qantas? A. Would you like to qualify it --

McCLINTOCK: That has been put before and the answer has been given.

HIS HONOUR: I don't think that prevents it being asked again.

CROWN PROSECUTOR: Q. I want you to answer the question? A. I am going to answer the question as an expert would as opposed to an amateur, if that's all right.

Q. Don't worry about insulting me just -- A. Well, in that case long-term investors -" (Emphasis added). 355 We would interpolate that the cross-examiner either bridled unnecessarily at this response, or misunderstood what it was that the appellant was about to say. The cross-examination, however, continued:

"Q. Just please attend to answering my questions? A. I have done precisely that, Mr Crown.

Q. Investors might react favourably to the news that Impulse would be disappearing from the market and that would be good news for Qantas? A. Do you mean long-term investors, medium-term investors or short-term investors.

Q. I'm talking about investors in general? A. There's no such thing as investors in general.

Q. Do you feel that you're unable to answer that question? A. No, I've answered it.

Q. Your reaction to what Mr McGowan said to you was that it was highly unlikely that the ACCC would give approval to a deal of that kind? A. I've already told you that I didn't say that.

Q. What I'm putting to you now is that you challenged Mr McGowan on his statement that you thought the deal required ACCC approval? A. Well, I've already answered that, but again the case is no.

Q. What I'm suggesting to you is that in your telephone conversation with Mr McGowan you said words to the effect of, 'I don't believe that the ACCC would approve such a thing' or something very similar to that? A. No again.

Q. Did you say, 'It would be highly unlikely that the ACCC will give you such approval'? A. No again.

Q. You've been present throughout this trial, haven't you, when the evidence has been given? A. Unfortunately.

Q. You were present when Mr McGowan gave his evidence? A. Yes. I think you might have noticed me ." (Emphasis added). 356 After taking the appellant to the cross-examination of Mr McGowan which had been conducted by Mr McClintock, the Crown Prosecutor returned to the same topic, in the following exchange: "Q. He said to you, didn't he, 'I believe they will approve it'? A. No. Q. You understood him to be referring to the ACCC? A. He didn't say it, the next question can't follow.

Q. He told you also, didn't he, in that connection that he had several months of negotiations with the ACCC on a variety of matters? A. Your Honour, may I ask you a question as the accused? How can the same question be asked? Is there no end of that? Can it be 30, can it be 50?

HIS HONOUR: Mr Rivkin, I will be the judge of that. If I come to the view that the questioning is becoming embarrassing or unnecessary, I will certainly intervene. Counsel is entitled to test your answers. If it requires repetition, well so be it.

357 The appellant's subsequent answers were short, and to the point, and he made no further complaint to the effect that he had already answered the various questions that were repeated. It may be noted that Mr McClintock had also objected to repetition on the part of the cross-examiner. 358 We do not have any impression from a reading of the transcript as a whole other than that there was the firm exchange of ideas, and a resistance to matters put by the Crown, which is typical of the evidence received in the courts of this State. As we have observed, there was a degree of repetition, and while the Crown Prosecutor was entitled to revisit the same topic more than once, in an attempt to obtain a qualification or abandonment of a previous answer, it was also entirely understandable, and hardly an exceptional occurrence that the person who was the object of the cross-examination should tire of it and make that reaction known. If anything, the appellant's reaction, and his considered replies, seem to us to have demonstrated an acuity of mind, and a comprehensive understanding of the course which the cross-examination was taking. 359 Although attention was also specifically drawn to the appellant's responses when asked in chief to identify his occupation, once again we are unable to see anything exceptional in the manner in which he dealt with the questions, let alone anything to excite the jury to a critical view. Since this was the subject of a specific submission, it is appropriate to note the relevant exchange: "Q. How would you describe your occupation, Mr Rivkin? A. Well, primarily its - let's rephrase that. Most of my money is made in matters primarily relating to the stock market.

Q. Could you tell us what you do in respect to the stock market, Mr Rivkin? A. I am a chairman, the unpaid chairman of a company called Rivkin Financial Services. I am, I believe, only one of two unpaid executive chairmen of any company listed on the stock exchange in Australia. I also publish a report called The Rivkin Report." 360 The behaviour of the accused while seated in the court during the remainder of the evidence, the submissions, and the summing up, is somewhat more difficult for this Court to assess, since there is no record of it, other than the somewhat general observations of Mr O'Brien, in his affidavit.

361 Those observations are, for the most part, unspecific, and we were not informed by Mr O'Brien whether, on the occasions that the appellant laughed, he did so alone; nor are we informed how many such occasions there were. In fact, the Crown Prosecutor recalled only one such instance, which occurred in relation to something that Mr Littlewood had written as a joke.

362 If, on one occasion, he used a ventilator noisily, that may have been discourteous and inconsiderate, but it is hardly an act that was likely to irritate a jury, or, of itself, to lead it to regard his credit with such disfavour as to disbelieve him. It was also said by Mr O'Brien that, for some of the trial, the appellant read a dictionary while evidence was being led. While that was also somewhat imprudent it did not apparently attract sufficient concern from his own lawyers for them to advise him to put it away.

363 The appellant's submissions, in this respect, is linked to the following passage in his Honour's remarks on sentence: "50. It must be said that throughout his evidence at trial the defendant displayed an attitude of rather contemptuous arrogance for the process which had brought him to trial. The same attitude was displayed by Mr Rivkin towards Mr McGowan and, during his cross-examination to the Crown Prosecutor. It is not unfair to say that the same attitude appears to have played a part in his decision to arrange the prohibited purchase of Qantas shares. Such an attitude may explain in part why the offender acted the way he did on 24 April 2001 but it is of course, no excuse for those actions."

364 Clearly his Honour's impression of the appellant's attitude to the proceedings is important for an assessment of this and the following aspects of the submissions, and we have given very careful consideration to it.

365 A significant difficulty, however, exists in disentangling the appellant's natural personality and self-confidence from any contributing effect of the meningioma. Dr Teo noted that difficulty in his report. In the passage from his opinion, previously cited, which was relied upon heavily for this submission, it is also important to note that he spoke in terms of possibility, when stating that frontal lobe dysfunction "can...cause persons to act inappropriately"; and in a trial situation "could have a bearing on one's ability to show a conciliatory demeanour..." or "could have a bearing on one's ability to show appropriate emotion and cause a person...to appear disinterested in the proceedings...". 366 In this regard the evidence led in relation to the sentencing proceedings including that from the appellant's wife, from Mr Richardson, and the report of Dr Fisher, show that, when not depressed or hypomanic, the appellant was by nature ebullient, extroverted, pedantic, confident and self opinionated. 367 Of considerable relevance for the question which arises in that respect are the reports of Professor Penny and of Dr Fisher which note his somewhat unusual personality, and the emergence of frank symptoms only after the handing down of the verdict. On any view, that could only have been a traumatic event for a person in the appellant's position, and something that may well have triggered an exaggerated reaction, and one of considerable anxiety.

368 Dr Fisher's opinion was that at this time, although not previously, the appellant was suffering from a mild hypomania. He noted that he had provided an account of himself becoming anxious immediately after the guilty verdict was delivered. It was after that event, he recorded, that the symptoms emerged which led to his diagnosis. Significantly, both for this submission and for the submission that we will next address, Dr Fisher saw the appellant's responses, on examination, to have been "logical". Additionally, he considered his cognitive function to have been "intact".

369 The onus is upon the appellant to show that his conduct in court, or his responses to questions, or a combination of them, was such as to have been critical, or at least highly material, to the rejection by the jury of his evidence; and also to show that, absent the tumour, he would not have behaved, or answered questions, in an inappropriate way that he is now submitted to have done.

370 We are unpersuaded, after a careful reading of the appellant's evidence, absent some more specific evidence which would elevate a mere possibility to at least a significant possibility concerning each of these matters, that this submission has been made good. In particular, we regard as highly speculative the possibility that the appellant may have behaved differently had he been tried after undergoing surgery, or that his approach, or the evidence as a whole, would have been viewed in any different light. We would accordingly dismiss this aspect of the submissions.

(c) Mental Element 371 It was accepted by the appellant that there was no evidence to support a McNaghten defence.

372 It was, however, submitted that the meningioma may have affected the appellant's memory, rationality and ability to make judgments, and to have known, or to ought reasonably have known, that the information in question was not publicly available and was price sensitive. At times this submission appeared to come close to an appeal to the fresh evidence in support of an argument abjuring McNaghten but seeking to show that the appellant's capacity for moral discernment was affected in a manner that attracted some generalised but unformulated defence to a charge otherwise made out.

373 Clearly the presence of a mental disorder or derangement can be relevant to the intent or knowledge required for an offence: R v Gosling [2002] NSWCCA 351 and R v Toki [2003] NSWCCA 125. There are, however, a number of problems with this submission, beginning with the way in which the defence case was conducted at trial, particularly in the light of the evidence given by the appellant, which involved a specific recollection of the conversation with Mr McGowan, and a rejection of the terms in which the latter said that it had occurred. There was no case of mistake, or confusion, or misunderstanding of the significance of the conversation, nor any lack of appreciation of the price sensitive nature of the information.

374 The evidence, and the continuing engagement of the appellant in his stockbroking, investment, management and advisory service activities between April 2001 and the time of the trial, seem on their face, to be somewhat contradictory of the proposition that the appellant lacked the necessary mental element.

375 The fresh evidence, in our view, falls short of raising a sufficient doubt concerning the mental element, there being a significant gulf between a possibility of the kind identified, which might affect some areas of one's cognition and behaviour, and that which would deprive a person of the specific mental element required for the present offence.

376 In particular, the evidence relates to observations made more than two years after the events giving rise to the charge, being a period in which the appellant had continued to engage in an active professional and social life. There was no evidence to show that he had been displaying, in April 2001, any of the symptoms which Drs Teo and Langeluddecke described post conviction, let alone any direct evidence to suggest that at thattime, the tumour was interfering with, or affecting his mental ability to carry out his business activities, which involved substantial share trades and significant investment decisions for himself and others, involving tens of millions of dollars each month. It is also relevant, in this respect, that neither Professor Penny, Dr Fisher nor Dr Starkey had reported seeing him in a manic or hypomanic state prior to the period that followed the conviction. Further, there was no evidence from the appellant, his wife, or any other person to suggest that his bipolar condition was other than under control, through the use of medication, at the time of the trial. 377 As a result the evidence of Drs Teo and Langeluddecke was of only limited value so far as it involved conjecture as to the past. Quite apart from his successful conduct of his investment and advisory activities, and his admitted ability to follow and to observe information from a wide variety of sources, including newspapers and the various market screens which he watched continuously, there was evidence from Mr Kerstens that the trade in the Qantas shares had not been out of the ordinary, as well as evidence from Mr Rivkin that he had been well aware of the insider trading laws in April 2001.

378 Again the onus rests upon the appellant to show that the fresh evidence raises a doubt as to the mental element, which is sufficient, in accordance with the tests previously mentioned, either to justify an outright acquittal or the quashing of the conviction and the ordering of a new trial. We are not persuaded that the evidence goes beyond a bare possibility of some degree of mental impairment having no discernible impact on the presently relevant issues of intent and knowledge, and that, in accordance with settled authority, is not enough: Gallagher (at 402 and at 410). In short, it lacks sufficient cogency to uphold this ground of appeal upon a fresh or new evidence basis.

APPEAL AGAINST SENTENCE 379 The appellant relies on the following grounds in support of his application for leave to appeal against the sentence: "19. The sentence imposed by the sentencing judge was manifestly excessive.

The sentencing judge erred in concluding that no other sentence than a sentence of imprisonment was appropriate in all of the circumstances of the case.

The exercise of the sentencing judge's discretion miscarried because his Honour:

(a) gave excessive weight to the appellant's public profile and occupation as a stockbroker as aggravating factors in circumstances where his Honour had accepted that the "inside" information was thrust upon him during the course of private negotiations relating to the sale of his house, rather than in his capacity as a stockbroker;

(b) gave excessive weight in the circumstances of this case to considerations of general deterrence;

(c) gave no or insufficient weight to the circumstances which mitigated the seriousness of the offence and which compelled the conclusion that the offence for which the appellant was being sentenced was towards the least serious of offences under s 1002G of the Corporations Act ;

(d) gave no or insufficient weight to the appellant's good character and positive involvement in the community;

(e) gave no or insufficient weight to the severe extra-curial punishments to the appellant flowing from the conviction;

(f) gave excessive weight to considerations of personal deterrence in circumstances where there was no basis for any finding that there was any risk that the appellant would re-offend, as his Honour recognised when declining to make a recognizance release order;

(g) took into account an irrelevant consideration in the finding that there was a need for personal deterrence, namely that the appellant had shown no remorse.

The sentencing judge erred in making factual findings (beyond reasonable doubt) concerning the state of the appellant's mind and treating those facts as aggravating factors in circumstances where those factual findings were not open to be made because they were not part of the Crown case at trial and were not put to the appellant in cross-examination. Particulars

(i) finding that when the appellant instructed that Mr Kerstens to purchase the shares "the statements made by Mr McGowan and to him about the deal with Qantas were virtually ringing in his ears";

(ii) finding that the inside information was an important factor in the appellant's decision to order the purchase of the shares;

(iii) finding that the appellant purchased the relevant Qantas shares because of the allegedly insider information;

(iv) finding that the appellant did not disbelieve what Mr McGowan had told him about a deal between Qantas and Impulse.

The sentencing judge erred in not making a recognisance release order.

The learned trial judge erred in the sentencing of the appellant because he was influenced by his personal animosity towards, and dislike of, the appellant (for example, see his criticism of the appellant's attitude towards the Crown prosecutor while under cross-examination and his judgment passim).

The learned sentencing judge erred by impermissibly taking into account in aggravation of sentence what he found to be the appellant's "contemptuous arrogance", particularly in circumstances where the appellant's demeanour during the trial and after the verdict was affected by his mental illness.

The learned sentencing judge erred by taking into account in aggravation of sentence what he found to be the appellant's "contemptuous arrogance", in circumstances where it is likely that the appellant's demeanour during the trial and after the verdict was affected by an undiagnosed brain tumour.

The sentencing judge's discretion on sentence miscarried because, unknown to him, the Prosecution and the Appellant's representatives, the appellant was suffering from an undiagnosed brain tumour which did, or was likely to, affect his behaviour."

380 There is considerable degree of overlap in these grounds, and there is no merit in them in so far as they take issue with the matters of fact that were necessary to support the jury verdict, or in so far as they invite this Court, which is a court of error, to make factual findings that differ from those made by his Honour.

381 The Crown conceded, properly, that where it is clear that an appellant was suffering an illness at the time of sentence, but which was not then known or detected, then evidence concerning it can be adduced on appeal, and the question of sentence reopened: R v Bailey (1988) 35 A Crim R 458 at 462. In that regard, it is also well established that an offender's objective and subjective criminality can be affected by considerations that relate to mental capacity, or mental or intellectual disability, particularly from the point of view of deterrence: R v Scognamiglio (1991) 56 A Crim R 81. 382 Since the Evidence Act does not apply to sentencing proceedings, s 102 also would not apply to prevent the evidence being called, so far as it may have been relevant only for credibility considerations.

383 It was submitted that his Honour erred in so far as he specifically found, contrary to the submissions that were advanced, that the appellant should be sentenced upon the basis that he had actually known, as distinct from "ought reasonably to have known", that the information possessed the qualities of being not generally available and price sensitive; and also in so far as he found that the appellant caused the purchase order to be placed because, or as a result of, his possession of that information.

384 While it was necessary for those facts to be found beyond reasonable doubt (Olbrich v The Queen (1999) 199 CLR 270 and Weininger v The Queen (2003) 196 ALR 451, [2003] HCA 14) they were obviously capable of being established by circumstantial proof.

385 It is evident from his Honour's reasons that the important considerations for these findings were the circumstances that the purchase was made on the same day as the conversation with Mr McGowan, that Mr McGowan had warned him that he was not free to trade in Qantas shares, that the Rivkin Report on the preceding day had not encouraged any purchase in the Qantas shares, that the subject transaction was by far the largest of the three trades made by Rivkin Investments on 24 April, and that the jury and his Honour each rejected the appellant's evidence that he had not believed that a deal was being negotiated between Qantas and Impulse.

386 Each of these findings was properly open on the evidence led in the trial, and we are not persuaded that the appellant's submissions to the contrary require any different conclusion. They may be briefly mentioned.

387 The fact that the shares were purchased openly through Rivkin Discount Stockbroking, and in the name of Rivkin Investments, that they were sold before the information became public, and that the appellant was a person of previous good character, does not require any different conclusion. The possibility of detection was strong, no matter how the purchase was made, and the shares were sold immediately after the price slipped from the point to which they had sharply risen. It is true that they rose again, immediately before their temporary suspension, and then rose again after the joint announcement, at the resumption of trading. By then, however, Rivkin Investments had made a profitable trade, and to that extent the information, which the appellant had acquired, had been used to his advantage.

388 Complaint was made in this context that the Prosecution had not directly challenged, in cross-examination, the appellant's account that he had read the Sydney Morning Herald, or that he had disbelieved Mr McGowan. Additionally, it was submitted that the Crown had not put to him that the information, which he had received, was an important factor, or indeed any factor, in the purchase of the shares. There was no obligation, in our view, for either matter to have been expressly put in cross-examination. It was no part of the defence case that the conversation had occurred in the terms described by Mr McGowan. Rather, there was a specific denial of Mr McGowan's account, and an assertion that the appellant had not believed the version which he had attributed to Mr McGowan. The defence could not have been taken by surprise in the respects suggested, and the absence of cross-examination did not, in our view, preclude the findings that were made, or occasion any unfairness to the appellant.

389 It was also put, in the context of this submission, that the questions which were asked by the jury during the second day of their deliberations, invited the conclusion that "in all probability" they concluded that the appellant "ought reasonably to have known" that the information possessed the relevant qualities, as distinct from having had actual knowledge of that fact. There is a fundamental problem with this submission, which, in any event, is highly speculative, in that it was for his Honour to find the facts, subject only to them being consistent with the jury verdict: Kingswell v The Queen (1985) 159 CLR 264 at 276. 390 Further, it was submitted that there were two specific errors in the way in which his Honour approached the case that led the sentencing discretion to miscarry. They involved contentions that:

(a) his Honour was preoccupied by the appellant's public persona and status in the stockbroking industry, and sentenced him on the basis of who he was, rather than what he had done; and that

(b) his Honour allowed himself to be distracted by "what appeared to be a personal dislike of the appellant", as indicated by his assessment that he had displayed "contemptuous arrogance" in relation to the offence.

391 In relation to the first of these propositions, reference was made to the fact that, after noting the importance of the element of general deterrence when sentencing offenders in relation to "white-collar" crimes, and also noting the capacity of insider trading to undermine and to diminish confidence in the market, his Honour had said: "This is likely to be particularly so in the case of an offender who occupies a substantial position as a trader and advisor in the market.

3. It is especially important that the sentencing process provide a firm disincentive to the carrying out of illegal activities especially by those who are engaged in the securities industry. There is a need to sound, in effect, a clarion call to discourage illegal and unethical behaviour among company directors, company officers, brokers, traders, advisors and those who have close connection through, for example, merchant banking, to the stock market."

392 Attention was then drawn to the fact that, after noting that the present case was "by no means the most serious or even a very bad case of insider trading", his Honour had, nevertheless, continued: "48. Notwithstanding all these matters which tend to reduce the seriousness of the offence in a number of respects towards the lower end of the range, there are nevertheless some serious aspects to the circumstances of the offence. First and foremost, the offender is a most experienced stockbroker and trader on the stock market...

49. All of these matters, in my view, import a serious content into the circumstances of the offence. It cannot be regarded as a trivial offence or one which, because of the modest size of the profit, can be simply swept under the carpet. To do so would be to turn a blind eye to be very significant position Mr Rivkin occupies and to the significant departure from proper standards which underpinned his decision on 24 April 2001 to arrange for the purchase of 50,000 Qantas shares..." 393 It was submitted that, in these passages, his Honour had overlooked the fact that the appellant's role in the securities industry had played no part in the commission of the offence, which had occurred only when the information alleged had been received as an unexpected side wind, and had then only been used because Mr Kerstens had mentioned the possibility of an investment.

394 In those circumstances, this submission continued, the case was not one that was an appropriate vehicle for a sentence that would send a "clarion call" to those engaged in the industry, that is, one which would serve the purpose of general deterrence.

395 It was submitted that, in fact, the appellant's position in the securities industry had been an entirely irrelevant consideration, and that by giving that aspect, and the consideration of general deterrence any weight, let alone considerable weight, the sentencing exercise had miscarried. In that regard, it was contended that the decisions, where general deterrence had been regarded as an important aspect of the sentencing exercise, were confined to cases where the offence involved a significant breach of trust and/or latent dishonesty or sophisticated fraud: for example, R v Pantano (1990) 49 A Crim R 328 at 330; and R v Hawker [2001] NSWCCA 148 at paras 23 and 24. 396 Additionally, it was submitted that error arose, in so far as his Honour considered it necessary that the sentence should involve an element of personal deterrence, in so far as he accepted that, as a result of the expense, public disgrace and public humiliation involved in the conviction, and the possible adverse impact on the appellant's ability to trade on the stock market in the future, it would "hardly be likely" that he would be tempted to contemplate the commission of a similar offence, and "extremely unlikely" that he would require any supervision or probation or conditional recognisance upon release from prison.

397 These observations, it was submitted, were inconsistent with so much of the reasons for sentence, as recorded that there was "a need for a sentence which carries with it the likelihood of a deterrent impact on [the appellant's] future conduct and which of itself is likely to ensure his rehabilitation so as to prevent any further delinquency in the area in which he has impermissibly and improperly acted."

398 It is evident that his Honour did not overstate the element of personal deterrence, in that he prefaced the passage in question by noting that the sentence to be imposed must, "to a degree", take into account that consideration, and explained the reason for it by reference to the fact that the appellant had not shown any contrition, and had refused to admit that he had been guilty of any wrongdoing. We cannot see any error, whatsoever, in that reasoning.

399 The submissions that his Honour entertained a personal dislike of the appellant, that this "coloured his approach" to the sentencing, that he was "jaundiced by extraneous considerations", that "he failed to approach the sentence with the dispassion required of a sentencing judge", and that he had been "personally affronted" by the appellant's behaviour and "took exception to him", are each lacking any factual basis. There is no support in the transcript of the proceedings, or in the reasons for sentence, to suggest that his Honour fell into any such error, and the observations which we made earlier, in relation to the bias submissions, apply.

400 It was necessary for his Honour to assess the appellant's objective and subjective criminality in the light of the evidence before him. The fact that the findings were adverse does not invite, let alone support, the inference that his Honour abandoned the neutrality expected of a sentencing judge. Nor is the fact that the appellant was found by his Honour to have been "a worthwhile person with an unblemished record" necessarily inconsistent with an unwillingness on the appellant's part to accept the finding of guilt that led to the assessment of which complaint is made.

401 The evidence which was tendered in relation to the radio and television interviews, and in relation to the Rivkin Newsletter, in our view, support his Honour's assessment, and displace the character evidence which came from friends and associates, and which also depended upon the appellant's lengthy involvement in the securities industry.

402 Unfortunately people with good character do, from time to time, offend, particularly in the area of white-collar crime, and while their record is properly to be taken into account when they are sentenced, it does not excuse their criminality.

403 Nor does the imposition of sentence consequent upon a finding of guilt, in a case such as the present, mean, as the appellant submitted, that he was being punished "severely for being an individual with characteristics out of the ordinary but not necessarily dishonest".

404 It was similarly incorrect for the appellant to submit, as he did, that the finding of "contemptuous arrogance" carried with it an element of aggravation which led to an increase in the sentence which would otherwise have been imposed, or that the appellant was being punished, and had his sentence increased, because he had pleaded not guilty, and had continued to maintain his innocence.

405 His Honour made it abundantly clear that this was not the case, in the several passages in which he expressly stated that the fact that the appellant had pleaded not guilty, and had continued to maintain his innocence, "cannot lead to any increase in the sentence"; that "no aspect of the imposition of penalty is designed to punish the offender because he is, on occasions, an arrogant man or because he is 'different'; or as Mr Richardson described it, "a little odd on occasions"; that the statements he had made in the public arena "should be assessed as having no greater utility than assisting in a determination as to whether contrition had been shown"; and that "his attributes [of contempt and disdain for the jury's verdict], genuinely felt as they no doubt are [by the appellant] should not, and cannot play a role in increasing the penalty to be imposed".

406 The consequence of the relevant finding, was simply to deny to the appellant the benefit, on sentence, which a demonstration of contrition and remorse, and insight into the offence, would have attracted. Counsel for the appellant made it clear in his submissions to his Honour that the appellant, as was his entitlement, maintained his innocence, and that he did not make any claim to contrition or remorse. No evidence was offered from the appellant, on the appeal, to reveal any change of attitude in this respect, and as a consequence the impact, if any, upon his attitude prior to sentence, arising from his mental state and the tumour, cannot be called in aid.

407 It was in that vein that his Honour noted that Dr Fisher's report proffered "something of a false issue". He accepted that it may well be that some of the more flamboyant remarks made by the appellant "are properly attributable to a mild degree of hypomania", but noted the plain fact that he had not expressed contrition, that he continued to assert his innocence, and that Dr Fisher had not suggested that his public statements were not his true feelings. Although his Honour did not expressly refer to any contributing effect that the appellant's bipolar disorder might have had, precisely the same considerations apply, particularly in the absence of any evidence to suggest that such condition was not under control at the relevant time.

408 Even if these considerations went some of the way to explaining the appellant's attitude, there was nothing before his Honour, nor is there any evidence before us, to show that he should now be regarded as an offender who is demonstrating contrition for, or an understanding of, or insight into, his offending behaviour.

409 Next, it was submitted that the offence was insufficiently serious, objectively, to have attracted a sentence involving any form of imprisonment, in so far as:

(a) The appellant had not been a "true insider" in the sense of being an officer of either Impulse or Qantas, or of having been involved in the deal, or of being in a position of trust in relation to be information;

(b) The appellant had not come to possess the information in his capacity as a stockbroker, and had not sought it out;

(c) The contravention had not, in any sense, been premeditated by the appellant, but occurred on the spur of the moment, when Mr Kerstens telephoned him;

(d) The offence was victimless, in that there was no evidence that any of the sellers would not have sold, even if the appellant had not been in the market;

(e) The profit achieved was small, and the appellant did not personally benefit from the deal, other than remotely, since his shareholding in Rivkin Investments was confined to about 13 percent of its issued shares. 410 Subjectively, reliance was placed upon the appellant's position as a person of hitherto impeccable character and integrity, who had not been previously found to have transgressed any law regulating the securities industry, who had played a significant and active role in community and charity organisations, and who was well respected. His Honour did not overlook that circumstance, it being a matter specifically addressed in the reasons for sentence. However, the relevance of good character is of lesser significance for white-collar crimes, since it is that factor which normally places the offender in a position whereby he or she is able to commit the offence: R v El Rashid, NSWCCA 7 April 1995 per Gleeson CJ at 3. 411 It was also submitted that it was relevant to the sentencing exercise that, by reason of the conviction, the appellant had suffered disgrace and humiliation; that his wife and family would be affected by it; that he had lost the previous good standing which he had enjoyed in the community and in his profession, which would impact on his livelihood; that he would be disqualified from managing a corporation; and that ASIC might take action in relation to his security dealer's license. There was said to be extra curial punishments, in respect of which insufficient weight had been given. 412 In fact, his Honour expressly made reference to each of these circumstances. While accepting that action taken in relation to his security dealers license might properly be regarded as "protective in character", he also observed that any adverse outcome concerning it would be a matter of "real practical punishment" so far as the appellant was concerned, and could properly be taken into account, along with the other matters, in the sentencing process. It is accordingly not the case that they were overlooked. Nor is it correct to describe the offence, of which the appellant was convicted, as "victimless". The victim of any such offence is the investing community at large, the injury being that related to the loss of confidence in the efficacy and integrity of the market in public securities: R v Hannes [2002] 173 FLR 1 per James J. 413 It was next submitted that, by comparison with all of the previous cases of insider trading in Australia noted in the summary provided, the present was by far the least serious of the contraventions that had been discovered and punished. It followed, so it was submitted, that having regard to the sentencing outcomes in those cases, the present sentence was manifestly excessive.

414 It is true that his Honour accepted that the present was by no means the most serious, or even a very bad case of insider trading, noting that the profit made was a modest one; that the applicant had not sought out the information, rather, it had been thrust upon him in circumstances not of his making, and in the course of a private negotiation relating to a sale of a house, rather than in his capacity as a stockbroker; that the purchase transaction was an open one that had not been concealed in any way; and that the shares were sold as soon as the market moved upward without the appellant waiting for the joint announcement, as he might have done, had he wished to achieve a greater profit.

415 It is not, however, the case that much benefit is ever gained by an attempt to draw a comparison with other sentences, having regard to the differences in the objective and subjective circumstances involved, and to the need for any such exercise to assume that the other decisions were correct, or are such as to provide effective guidance for later cases: R v Morgan (1993) 70 A Crim R 368; R v Salameh NSWCCA 9 June 1994 and R v Ellis (1993) 68 A Crim R 449.

416 In the present instance only four other cases were identified, two of which had been decided in District or County Courts (R v Hannes (supra); R v Williams DCNSW 4 October 1996; R v Teh CCVIC 2 September 1991; and R v Cribb NSWCCA 4 November 1994). As such, little is to be gained by reference to them, it being the responsibility of this Court to determine whether or not the sentence imposed fell within a proper exercise of sentencing discretion, by reference to its own facts. 417 Finally, it was submitted that the medical evidence led on sentence had missed the point entirely, and that, had the fresh evidence from Drs Teo and Langeluddecke been available, it would have shown that a custodial sentence was inappropriate. The evidence, it was submitted, would show that, at the time of the offence, the appellant's judgment was likely to have been affected by the tumour. Additionally, it was submitted that its reception would have negatived his Honour's assessment concerning his lack of contrition, and most likely would have caused his Honour to have entertained a reasonable doubt as to whether he had known that the information had the necessary qualities, and had traded in the shares upon the basis of it.

418 In these ways, it was argued, the fresh evidence would have constituted a significant mitigating factor on sentence.

419 These submissions involve a repetition of the arguments that we have already dealt with, and they are subject to the principles relating to the circumstances in which a Court of Appeal can intervene where new or fresh evidence is led.

420 This Court is a court of error, and it will not intervene merely because it considers that some sentence other than that imposed could have been imposed. It needs to be satisfied, before doing so, that a more lenient sentence was warranted in accordance with s 6 (3) of the Criminal Appeal Act 1912: R v Cocking [1999] NSWCCA 311. 421 The onus rests upon the applicant for leave to appeal against a sentence to demonstrate, either that there was a specific and identifiable error in the sentencing proceedings, or that the sentence was manifestly excessive or inappropriate, to the point where latent error must be assumed: R v Vachalec [1981] 1 NSWLR 351; Dinsdale v The Queen (2000) 202 CLR 321; and House v The King (1936) 55 CLR 499 at 504 to 505. 422 We are not persuaded, consistently with the limited scope for appellate review of the findings of fact that the appellant has shown that a sentence, other than that imposed, was warranted in law, and should have been passed.

423 The offence was serious, and it called for elements of personal and general deterrence for the reasons identified by his Honour; and also for the reasons identified by Spigelman CJ in Hannes at [394], and in R v Pantano (1990) 49 A Crim R 328 at 330, relating to the difficulty of detection of white-collar crimes. While it is true that the appellant received the information in circumstances where it was volunteered and unexpected, and was offered in circumstances unrelated to his activities in the securities industry, nevertheless, he occupied a position in which he was able to use it, and he then proceeded to order a purchase, even though he must have known, by reason of his extensive experience as a stockbroker, share trader, investment manager and adviser, that he was not free to do so, and even though he had been specifically warned that he could not trade in the shares. For that reason, the submission that the appellant's occupation and role in the stock market were irrelevant considerations is incorrect.

424 The sentence imposed was not, in our view, excessive, given the need for adequate punishment and deterrence (s 16 A (2) Crimes Act (Cth) 1914), and having regard also to the maximum available sentence of imprisonment for 5 years and/or a fine of $200,000. Moreover, we do not consider that there was any reason for the making of a recognisance release order.

425 Most certainly it did not merit the somewhat exaggerated submission of counsel for the appellant that it was a sentence that "borders on cruelty". That submission was as uncompelling as the following additional submission, which was addressed by senior counsel during the hearing: "What is imposed is a weekly detention over nine months, 36 weekends my client would have to get in his car, no doubt driven by his chauffeur, and go to the Silverwater detention centre.

Now, if one wants to destroy this man that is something that would, we would submit, on the face of it - and I know I am not suggesting for one moment that the judge was biased, I make that quite clear - but there is a degree of inhumanity to the man in that proposition. How much does one have to punish a person. Do you have to reduce them to such a degree that they are to feel humiliated and rejected by society? Different people, different situations.

My client is a very different person and he has got a very different history to most, he is unique, and the sentencing in this case should not be to destroy him and we would submit that if one thinks for a while about the effect of nine months of weekend detention, this is all apart from the medical evidence, it is not difficult to come to the conclusion that this is a humiliation that should not be visited upon him." 426 It is not the case that an offender who comes from a privileged background, or who occupies a significant position in commerce or society can hope to escape a custodial sentence, where that is appropriate for the offence, simply because it may be humiliating or embarrassing. Equality before the law does not permit any such proposition, and the submission extracted is ill-founded in principle. Moreover, neither the sentencing Judge, nor this Court, can permit themselves to be swayed by popular expressions of opinion, whether in the media or otherwise, as to whether a particular offender should or should not receive a custodial sentence. 427 From time to time judges explain sentences by reference to their perception of community attitudes. Sentencing does not occur in a vacuum, but a sentencing tribunal must apply the relevant statutory and common law principles. These provide the points of focus through which the task must be addressed independently, fearlessly, with due proportion and (at times) an informed sense of mercy. 428 A sentencing court must strive to avoid being influenced by a "sense of outrage" stemming from foreign sources. The outraged sense of innocence expressed by a person who has been duly convicted cannot reduce an otherwise appropriate sentence. Nor, on the other hand, can "the community's" sense of outrage expressed through the media lead to a harsher sentence than is otherwise appropriate according to the law. 429 Since his conviction, the appellant has been the object of sustained media attention. Much of that coverage has been openly critical of him; or overtly hostile towards him; or merely derisory of him. It would be disingenuous, to say the very least, to close one's eyes to the tendency of that type of coverage to spawn an outrage which is informed by matters going beyond legal principle. 430 In those circumstances, the best that any sentencing Court can do is to apply the law fairly according to the particular circumstances of the particular case, and influenced only by the evidence in the particular case. If that is done with a proper clarity; and if what has been thus done is reported truthfully, and commented upon fairly, then there should be no need for concern about the reaction of reasonable members of the general community. Principled justice is not likely to be advanced by any attempt, necessarily futile, to identify whether "the community generally" has, or might have, or might be influenced by the media to have, this or that opinion; let alone to evaluate reliably any such supposed opinion. 431 We have given careful consideration to the question whether the sentence should have been suspended, and made conditional upon the applicant's good behaviour. We have however reached the view that the offence was too serious to warrant a suspension of the sentence, which we consider to have been appropriate for the case. 432 The learned sentencing judge specifically addressed each of the provisions of the Crimes Act (Cth) 1914 relevant to the sentencing exercise, in particular s17A (Restriction on Imposing Sentences) and s20AB (Additional Sentencing Alternatives). He concluded that, in the circumstances of this matter, no sentence was appropriate other than one of imprisonment (see esp pars [57]-[62]). We discern no error in his Honour's approach to these issues or in his conclusion as to a custodial component. 433 Periodic detention is, on any view, a less harsh sentence than one involving full term detention, as has been authoritatively accepted: R v Hallocoglu (1992) 29 NSWLR 67. 434 Moreover, the fresh evidence placed before us does not go so far as to show that the appellant's medical or mental state would prevent him from serving a sentence of periodic detention, or render its service more harsh than normal. There is no reason to suppose that he could not be appropriately managed within the correctional system, at an appropriate detention centre.

435 We would grant leave to appeal against the sentence, but would dismiss the appeal against sentence.

436 For these reasons we are of the view that the following orders should be made:

1. Appeal against conviction dismissed; and
2. Leave to appeal against sentence granted, but appeal dismissed. **********

Last Modified: 02/06/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.