Regina v Rivkin - [2004] NSWCCA 7 - NSWCCA 2004 case summary — Zoe

NSWNSWCCA

Regina v Rivkin

[2004] NSWCCA 7

Court of Criminal Appeal (NSW)|2004-02-05|Before: Mason P, Wood CJ, Sully J, Whealy J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2004-02-05

Before

Mason P, Wood CJ, Sully J, Whealy J

Source

Original judgment source is linked above.

Judgment (422 paragraphs)

[1]

CITATION : Regina v Rivkin [2004] NSWCCA 7 HEARING DATE(S) : 15/10/03, 16/10/03 JUDGMENT DATE : 5 February 2004

[2]

JUDGMENT OF : Mason P at 1; Wood CJ at CL at 1; Sully J at 1 DECISION : Appeal against conviction and sentence dismissed

[3]

CATCHWORDS : Appeal against conviction - insider trading - appellant found guilty of contravening s1002G(2) Corporations Act 2001 - Whether miscarriage of justice - actual or ostensible bias of trial judge - former professional association - whether "personal animosity" involved in sentence - Whether trial judge erred in not directing verdict of acquittal - meaning of "information" - possession of information as particularised - materiality - Admissibility of evidence - relevance - prejudicial/probative value - medical evidence as to witness' capacity to give reliable evidence or to present more attractively - Whether summing up unfair - judicial comment/warning - Whether verdict unreasonable - Fitness to stand trial - brain tumour - frontal lobe dysfunction - appellant's mental state - conduct at trial - credibility - expert evidence - mental element of offence - Fresh evidence of undiagnosed meningioma - relevance on appeal to issues of fitness to stand trial, miscarriage stemming from inappropriate behaviour, mens rea and sentence - Equality before the law - law's concerns regarding fitness is with capacity to understand and follow proceedings not with maximising capacity to present as attractive personality - sentencing in "white collar" criminal matters - court's duty not to be swayed by "community attitudes" in particular cases as promoted by media - Appeal against sentence - whether sentence manifestly excessive - whether miscarriage of sentencing judge's discretion - insider trading not a "victimless" crime - appellant's public persona - good character - personal and general deterrence - finding of "contemptuous arrogance" - no contrition - impact of fresh evidence as to appellant's medical and mental state where absence of evidence as to any change of attitude by prisoner - D Evidence Act 1995 ss102-110 LEGISLATION CITED : Crimes Act 1914 (Cth) ss16A, 17A, 20AB Corporations Act 2001 ss1002A, 1002B, 1002C,1002G Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited (1996) 65 FCR 215 Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376 Coombe v Bessell (1994) 4 Tas R 149 Domican v The Queen (1992) 173 CLR 555 Doney v The Queen (1990) 171 CLR 207 Dovade Pty Limited v Westpac Banking Group (1999) 46 NSWLR 168 Eastman v The Queen (2000) 203 CLR 1 Ebner v Official Trustee (2000) 205 CLR 337 Gallagher v The Queen (1986) 160 CLR 392 Hooker Investments Pty Limited v Baring Bros Halkerston and Partners Securities Limited (1986) 10 ACLR 462 Johnson v Johnson (2000) 201 CLR 488 Johnson v Miller (1937) 59 CLR 467 Mickelberg v The Queen (1989) 167 CLR 259 Palmer v The Queen (1998) 193 CLR 1 R v Bailey (1988) 35 A Crim R 458 CASES CITED : R v El Rashid, NSWCCA 7 April 1995 R v ITA [2003] NSWCCA 174 R v Liosatos [1964] SASR 40 R v Mailes (2001) 126 A Crim R 20 R v Maxwell NSWCCA 23 December 1998 R v Morgan (1993) 70 A Crim R 368 R v Pantano (1990) 49 A Crim R 328 R v Presser [1958] VR 45 R v Scognamiglio (1991) 56 A Crim R 81 R v Turner [1975] QB 834 at 842 Re Polites (1991) 100 ALR 634 S v The Queen (1989) 168 CLR 266 Saleam v R (1989) 16 NSWLR 14 Toohey v Metropolitan Police Commissioner [1965] AC 595 Webb & Hay v The Queen (1994) 181 CLR 41 Zaidi v R (1991) 57 A Crim R 189 PARTIES : Regina Rene Walter Rivkin FILE NUMBER(S) : CCA 60198/03 COUNSEL : D Yates SC with M Buscombe (Crown) R Ellicott QC with B McClintock SC and M Wigney SOLICITORS : C K Smith (Crown) S E O'Connor

[9]

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.

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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?

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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.

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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".

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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."

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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.

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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").

[117]

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.

[118]

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.

[244]

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?

[247]

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.

[248]

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.

[273]

(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.

[291]

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.

[312]

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'

[313]

… 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. "

[314]

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."

[407]

(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.

[418]

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.