Joffe v R; Stromer v R

On 5 October 2011 the Court of Criminal Appeal made, amongst other orders, an order that the Notice of Motion filed on behalf of the accused, Daniel Shayne Joffe, on 11 March 2011 and filed on that date on behalf of the accused, Nathan Stromer, be referred back to me as the Trial Judge for reconsideration in light of that Court’s Judgment: (DSJ v R; NS v R [2011] NSWCCA 9).

The Notices of Motion that were filed on 11 March 2011 sought the following orders:

In the Court of Criminal Appeal’s judgment, Bathurst CJ at [10] stated:

In the judgment of Whealy JA his Honour observed:

His Honour later stated:

It is convenient at this point to state in summary form particular matters to be considered in relation to the co-incidence rule set out in s.98 of the Evidence Act 1995 in light of the observations of the Court of Criminal Appeal in these proceedings. The matters are:

In determining ‘relevance’ it is, as Whealy JA observed in the abovementioned judgment at [54], especially important to identify:

I will return to discuss the elements of the offences charged below.

The s.98 issue is whether the evidence in question is capable (“the capacity of the evidence”), to a significant degree, of rationally affecting the assessment of the probability of the existence of a fact in issue.

As observed by Whealy JA at [55] the issue involves the question of what a piece of evidence, if accepted, would play in the resolution of a disputed fact.

It is also clear that an alternate or inconsistent explanation or inference, inconsistent with guilt, arising from the Crown evidence is relevant in order to test the cogency of the hypothesis upon which the Prosecution relies to justify the admissibility of the evidence.

In this respect it was noted in the judgment of Whealy JA that it is necessary to consider the following matters:

In each case the question therefore becomes “does any possibility such as those referred to above, deprive the co-incidence evidence, taken with other evidence, of its capacity to prove significantly the Crown case: see judgment of Whealy JA at [132].

The relevant insider trading provisions are contained within Division 3 of part 7.10 of chapter 7 of the Corporations Act 2001.

The accused Joffe has been charged with 10 Counts pursuant to s.1043A(1)(d). Stromer has been charged with 10 Counts pursuant to s.1043A(1)(c).

The elements of the offences charged against Joffe under s.1043A(1)(d) are:

There are similar elements in relation to the offences charged against Stromer as set out in (i) and (ii) above. In addition, (in relation to Stromer) there are the elements of ‘acquire’ and ‘dispose of’ financial products.

The offences charged under ss.1043A(1)(d) and 1043A(1)(c) accordingly have physical elements, (possession of inside information) and a fault element (the insider knows, or ought reasonably to know that the information is inside information (as defined in s 1042A)).

Section 1042A defines “information” as follows:

Section 98(1) of the Evidence Act 1995 provides as follows:

The expression “probative value” is defined in the Dictionary to the Evidence Act as follows:

In relation to the issue of ”possession” of inside information the facts in issue include:

In the present proceedings the Crown intends to prove each of the elements of the offences charged by evidence of two forms:

The Crown relies upon a Notice of Co-incidence Evidence pursuant to s.98 for the purpose of establishing that each of the accused did the acts alleged against them in the indictment and that each had the required state of mind on the basis that, having regard to the similarity of the events and circumstances, it is improbable that the events occurred coincidentally.

The combined course of conduct, summarised in the Co-incidence Notice has been analysed and set out in an Appendix to my judgment dated 17 August 2011.

Part of the co-incidence evidence relates to “events” in the nature of relevant telephone contact between the two accused. Attached to this judgment, as an Appendix to it, are summaries prepared by the Crown of such telephone contacts in relation to the relevant transactions. They constitute evidence of ‘events’ and the timing of such events in relation to acquisitions.

The parties lodged the following written submissions:

The parties also relied upon submissions in reply as follows:

In this respect it was submitted that the Crown will seek to use, as co-incidence evidence, evidence in relation to facts and issues in other counts to invite the jury to use such evidence (as co-incidence evidence) to establish that Joffe drew an inference as to certain information communicated to Moody’s and on that basis, for the jury to make findings in relation to particular counts on issues such as “possession” and “communication”. The argument was in essence that co-incidence evidence based on other counts did not have the capacity to establish that, by a process of inference, Joffe was in possession of insider information at the relevant time. As discussed below I do not consider the Crown relies solely upon co-incidence evidence to establish the elements of possession and communication.

In developing this line of argument many points raised by Mr Game in the course of oral submissions were directed to establishing that there were “discrepancies” between the particularised information and the summary of the evidence that the Crown relied upon in relation to each count, as set out in the Table to the Notice of Co-incidence Evidence. The contention was that the summary of the evidence set out in the Table to the Notice in relation to particular counts did not establish “possession” of inside information. However, notwithstanding the jury would be invited to use the co-incidence evidence to support the proposition that Joffe drew inferences from what might be termed ’limited’ evidence.

Many of the submissions made to this effect were put in issue by the Crown Prosecutor. There was some dispute as to the precise nature and extent and significance of the evidence available to the Crown to establish the elements of ‘possession’ and ‘communication’. In other words the Crown’s position was, in effect, that a proper understanding of the factual material available to be called in relation to particular communications between Moody’s and its client entities in itself was sufficient to establish, as a matter of inference, those elements. The co-incidence evidence was further evidence which the Crown says seeks to rely upon and add to its circumstantial evidence case. The co-incidence evidence, it contended, would establish its general contention that the accused’s conduct was part of a scheme or joint involvement in insider trading. The Crown characterised this as “…a circumstantial case of a continuing joint venture in share trading between the accused…”: Crown Submissions April 2012 at [9].

In the outline of submissions filed on behalf of the applicant Joffe it was stated:

It was also submitted that it was relevant to note evidence of other employees which did not support the notion that they conveyed information they knew to Joffe. It was said that co-incidence reasoning is not going to support in a “significant” way the probabilities that they are mistaken or lying (eg Count 4 (BLD), Count 5 (AIHCA), Counts 6 – 9 (SIG), Count 10 (RIN)).

The submission was it would be “tenuous in the extreme” to allow reasoning back from these Counts to the other Counts to support an inference of communication of the information.

In relation to Count 4 (BLD), Count 5 (AIHCA), Counts 6-9 (SRG) and Count 10 (RIN) the written submissions for Joffe set out the element of possession in respect of each charge and, on all Counts the following:

In relation to Count 1 (GAS) there was the additional fact, namely:

The written submissions on behalf of the accused Joffe raised the following:

Mr Game developed the written submissions on behalf of his client at the hearing as summarised below.

The submissions made reference to the particulars set out in Co-incidence Notice and to the evidence which the Crown had identified in the Table to the Notice. There was said to be “discrepancies” between the particulars and such evidence.

Mr Game submitted on behalf of Joffe that the Crown sought to use co-incidence evidence for the purpose of establishing that Mr Joffe engaged in inferential reasoning in relation to ‘inside information’ in seeking to prove his possession of such information. He argued that the co-incidence evidence was not capable of being used in that way as a means of proving an element of the offences charged: Transcript 12 April 2012 at p 3.

The argument was developed on what was referred to by Mr Game as “the skeleton” of the case. This expression I understood to refer to specific facts in the Crown case such as:

Matters set out in (i) to (vii) are not intended as an exhaustive statement of all of the facts constituting “the skeleton”.

Mr Game’s submission was to the effect that it will not be possible to use such information “to draw the inference that the Crown is actually asking you to draw…”: [T5].

In support he submitted:

These points were said to be supported by specific matters concerning to four Counts as follows:

The point made in submissions was that no information is contained in the particulars in the indictment to the effect that “AWB had informed Moody’s that it (AWB) was about to announce,” the matters referred to in (1) and (2) in the above paragraph, to the ASX.

The information identified in the Co-incidence Notice, it was said, makes no reference to the intended announcement to the ASX.

The Crown, so the argument went, relies on the drawing of an inference by Joffe as to that particular fact in order to establish him being “in possession”. It was said that was so, because the matter was not specified as a fact about which AWB had advised the fact of an intended announcement.

The submission was that “no process of Co-incidence reasoning can affect the process of mind in DSJ inferring something from another piece of information”: [T7].

The Crown in reply made the following written submissions:

The following Written Submissions in Reply were made on behalf of the accused, Joffe:

The notes of Joffe are capable of constituting evidence from which inferences as to the possession of information concerning the issue of “an announcement” referred to above conveyed by AWB to Moody’s are capable of being drawn. Evidence as to the particular timing of meetings, as to emails and as to the announcement itself are relevant to the issue of “possession”.

The dispute in submissions is in the nature of a dispute about particular facts in the Crown case in particular, or the issue of an ‘announcement’. Evidentiary and factual disputes are not to be finally resolved on an application such as the present.

The evidence as to the indemnity moves from a reference to “considering providing an indemnity” to the stage of Joffe’s alleged request for a draft copy of “the proposed announcement regarding the indemnity”. This statement and other facts are consistent with information in coming into the possession of Joffe over time on an incremental or graduated basis.

Evidence in combination, including notes, emails and discussions concerning the AWB particularised matters may provide a proper basis for establishing the fact of “possession”. Subject to the issue of alternate possible inferences (see below) I consider such evidence in the Crown case in relation to Count 3 has significant probative value.

The evidence, including inferences capable of being drawn from it, in that respect, is capable of establishing that Joffe knew of the fact that there was to be ‘an announcement’ that an indemnity would be made and, as well, that the forecast in question was to be revised. I do not consider that proof of possession of the above information depends wholly upon the co-incidence evidence in relation to other Counts.

This count relates to the acquisition of 52,200 Contracts for Difference by Stromer between 25 and 26 October 2006.

On 25 October 2006 Boral provided confidential information to Moody’s:

It was contended that of the information provided by Boral to Moody’s there is no actual evidence available to the Crown as to information concerning (ii) above “…likely to inform the market…etc”

Boral made an announcement to the market that it expected after tax profit would be below the previous year as would its first half year profit after tax.

The Crown submitted there is evidence that there was information within the possession of Moody’s before the announcement was made. After the announcement Brown sent Cahill an email saying “Brian, as expected Boral came out with an announcement…” (emphasis added).

On the day before Boral made the announcement Joffe accessed the ComSec website for Boral. Between 26 October 2006 and 13 November 2006 Joffe exhibited particular interest in Boral, accessing the website in relation to it 696 occasions. I consider the co-incidence evidence has significant probative value in that it is capable of enabling inferences to be drawn as to Joffe’s possession of inside information.

Mr Game submitted, by way of assertion that “no evidence” exists of Moody’s being informed by Boral of information as to the imminent announcement.

However the email to Mr Cahill “…as expected Boral came out with an announcement” is at the least consistent with the fact that Moody’s had previously been informed of Boral’s intended action.

There is also evidence that Moody’s were given information that inevitably would mean that it would have an impact on profit forecasts. It was information, in other words of such a kind that its impact would be evident. It is a jury question as to whether such inside information was accessed by the accused Joffe.

The co-incidence evidence in my assessment has significant probative value.

Between 10 and 14 November 2006 Stromer acquired 962,000 Contracts for Difference in Alinta Infrastructure Holdings.

The information provided to Moody’s was that Alinta would announce, on 15 November 2006, a takeover bid for all the issued partly paid stapled securities of AIHCA.

The submissions made at an earlier time appear in the Appendix delivered to the Judgment delivered on 17 August 2011 at [441-445].

It was submitted for the accused Joffe that the particularised information exceeds the evidence.

The Crown pointed to the following evidence which it contended is capable of supporting an inference that Joffe did come into information of the inside information. Those facts may be shortly stated:

The Crown’s case is that a series of closely related events, several of which are directly linked to AIHCA, is more than coincidental and leading to the commencement of the acquisition of AIHCA CFDs on Monday 13 November 2006.

The acquisitions were acquired by Stromer in circumstances that had a close temporal association with specific events as set out above.

Subject to possible alternate inferences (as to which, see below) I am of the opinion that the co-incidence evidence in relation to Count 5 has significant probative value.

In the Outline of Crown Submissions in Reply in relation to Count 9 it was stated:

In his oral submissions Mr Game stated that the Crown relied in its “Table of Events” from the matter “which the inference of possession of the information is, is an email sent from Mr Milne to Atkins and Howe at about 11:08 on 8 December.”

The email says:

The particulars in the indictment in respect of Count 9 are as follows:

Mr Game observed that the email said that if there was an announcement it would be “this time next week”. Mr Game posed the question “so how does if there is an announcement it will be this time next week become proposed to announce a bid for all the stapled securities. Again well the only way is that if Mr Joffe inferred that information was something he had learnt or been told…etc”: [T12-13].

It is important however to examine the evidence referred to in the Table of Related Events attached to the Co-incidence Notice concerning SRG (Count 9). In the Statement of Facts prepared by the Crown, specific communications including emails, meetings etc were identified. In paragraph 506 there is reference to information coming from Trans Urban to Moody’s of a specific nature concerning the proposed bid, namely:

As noted above the accused, Stromer, made his first acquisition of SRG CFDs at 2:22 pm on that day, 30 November 2006.

Before the email from Mr Milne to Atkins and Mr Howe at 11:08 am on 8 December 2009 it is clear that Moody’s had been put in possession of a great deal of information.

The fact that the email did not itself refer to “a bid for all of the issued stapled securities of SRG for up to $1.30 per stapled security” is accordingly to be evaluated in light of the earlier history that such information had been provided to Moody’s by Trans Urban. In relation to Count 9 the Crown case is, as stated above, that Joffe was in possession of the information between the dates referred to in Count 8, namely between about 2 and 4 December 2006. The relevant dates in respect of Count 9 are between about 5 and 8 December 2006. Accordingly the Crown case is, as stated above, that on the relevant dates in relation to Count 9, Joffe was in possession of the information set out or particularised in Count 9.

The matters relevant to the issue of significant probative value of the co-incidence evidence I consider to be those identified in my previous judgment, namely:

Mr Game set out the following matters in his written submissions:

The alternate possibilities consistent with innocence were identified on behalf of the accused and noted in my Judgment delivered on 17 August 2011 at [67] as follows:

In the Crown submissions in reply on the issue of alternative inferences inconsistent with guilt, it was submitted that matters put forward on behalf of the applicant do not alter the capacity of the co-incidence evidence in relation to the following matters:

I have considered the possibility that the telephone calls and text messages between the two accused could be related to social recreation or other matters of personal interest. As to whether or not the communications were of that nature, other than the fact of the existence of the long-term relationship between Joffe and Stromer there are no other objective facts to support the innocent possibility concerning the telephone calls.

Matters pointing in the other direction include the fact that there is a close proximity in time or alternatively a correlation in time between the communications between the accused and the inside information being provided to Moody’s, in some instances Joffe being directly informed as to that information, activity by Joffe in the form of online inquiries as to market price and trading activities of the stock of entities who have retained Moody’s, and the acquisition of particular financial products. In relation to some Counts the Crown relies upon the evidence to establish its contention that Joffe had access to the inside information.

As to the possibility that Stromer had been “tipped off” about the particular corporate entities in question without receiving inside information, such a possibility is to be assessed against the evidence which establishes multiple communications between the two accused prior to a particular acquisition being made. In general terms a “tip” may be conveyed in a single communication. I have nonetheless taken into account the possibility that the series of trades were all “tips”. I have considered that possibility in light of all of the factual pieces constituting the Crown’s circumstantial evidence as discussed elsewhere in this judgment. Having done so I do not consider that the possibility that Stromer had been “tipped off” is of sufficient weight to diminish the probative value of the co-incidence evidence.

I have also considered whether the absence of any direct evidence that Joffe acquired inside information reduces the cogency of the co-incidence evidence to prove relevant facts in issue. I have considered that matter in context of the facts which include the fact that the acquisitions made, the subject of the charges, were all acquisitions in entities that had been Credits of Moody’s.

On the evidence in the Crown case I do not consider that the last mentioned factor diminishes the cogency of the co-incidence evidence.

Nor do I consider that the other alternative possibilities suggested in the written submissions for the accused in those respects diminishes the probative value of the co-incidence evidence relied upon by the Crown. I have, for the purposes of the assessment, assumed that such possibilities could arise. However even on that basis I do not consider that such alternate possibilities are capable of reducing the cogency of the co-incidence evidence.

In the written submissions on behalf of Stromer, in relation to the separate trial application dated 5 April 2012, Stromer supported and adopted the submissions made for on behalf of the applicant Joffe at [1-7].

It was submitted that the availability of an alternate hypothesis is relevant in forming a view, as required by ss.98 and 101, that the evidence has ‘significant probative value’.

It was submitted that the key issue with respect to Counts 11-20 was that of state of mind in respect of each Count alleged against Stromer.

The submissions for Stromer accordingly focused on the issue of the use of co-incidence reasoning to prove the content of the communications from Joffe to Stromer.

It was contended that there was no “direct evidence”, of any relevant information (insider or otherwise) being passed between the two.

It was therefore contended that the key issue becomes “how does the evidence assist in the determination of whether Stromer had knowledge of the information, as alleged by the Crown.

In that regard it was stated that even if the contact between the two men induced Stromer to trade in particular securities it becomes a matter of inference as to whether Stromer was, at the material time, in possession of the inside information having received it from Joffe.

It was submitted that evidence of “some other trade, even if the circumstances were similar”, does not add to or detract from the strength of any such inference.

The submissions for Stromer extract the following observations of Brennan J in Perry v the Queen [1982] HCA 75; 150 CLR 580 at [610]:

It was submitted that “repetition” does not strengthen the inference that Stromer was motivated to trade in the particular security because he possessed inside information.

The submission in effect was that even if he was induced to acquire a particular security as the result of contact with Joffe, the possibility exists that the inducement “was based on something less than insider information. It is not affected by a similar event occurring on a later occasion”: Written Submissions at [8].

In that way it was argued that the evidence of the second event, even if similar, cannot have “significant probative value with respect to the state of mind issue in relation to each Count”.

This was referred to as a “deficiency”. It was observed that the information, the subject of each Count, was capable of being communicated in a single call and the fact that there was a multiplicity of calls is not probative but was said to be “a potential distraction”: Submissions in relation to separate trial application (Stromer) at [9].

A similar line of argument was put in relation to the sale of securities and in relation to the internet checking of share information by Joffe.

I am of the opinion that the matters raised in submissions in respect of “repetition and internet checking by Joffe” are to be considered in context. The evidence in the Crown case in relation to the communications that occurred between Moody’s and the various entities (the Credits) are not confined to one document or one email or one telephone conversation on one particular day. Over the period of the relationship between Moody’s and its clients the evidence indicates that there were meetings and ongoing communications. It was common for there to be an ongoing supply of information prior to a particular date (such as an announcement of a takeover bid). The progressive provision and accumulation of confidential information coming into Moody’s from specific entities is to be taken into account when assessing the probative strength of the co-incidence evidence. Accordingly it is not merely the fact of “repetition” of communications between Joffe and Stromer that is relevant. The evidence concerning the same needs to be considered in the overall context which includes the progressive supply of information to Moody’s in many instances. The context also includes matters referred to earlier – the fact and timing of on-line searches in relation to securities in relevant Credits of Moody’s and the timing of financial arrangements put in place to enable the acquisitions to be made.

Similarly in the evaluation of alternative inferences, such as ‘tipping’, it is open for a jury to take into account whether internet searching by Joffe and communications back and forth between Joffe and Stromer is more consistent with inside trading than communication in the nature of phone calls to pass on “a tip”.

In relation to Counts 1 and 2 it was observed that the Crown did not assert that Joffe directly received the relevant information. It was submitted that where Moody’s employees (other than Joffe) received information, but say they did not pass it on to Joffe, that fact leads to the conclusion that the evidence of other Counts is not available to prove possession of the information by Joffe in a particular Count.

This point raises some matters relied upon by Mr Game in terms of “discrepancies” between particularised information and evidence available to the Crown.

The point does not itself preclude access by other means by Joffe to confidential information. The fact that one person within Moody’s received the information but say that they did not pass it on to Joffe assumes that the person receiving the information keeps it to himself or herself rather than it becoming the information of the Moody’s organization. Once information is received “in house”, unless the evidence shows it to have been secured by a means that would preclude any other person than the receiver having access to the information, then the possibility of access to such information by Joffe remains.

The issue of “repetition” raised in the submissions (and referred to above) again is an issue to be considered in the context of a circumstantial evidence case. In this respect, as noted above, the Crown contends that the co-incidence evidence in relation to the Counts on the indictment exhibits a pattern based upon such matters as set out in paragraph 6 of the Crown Submissions dated 19 March 2012. In that respect the Crown points to a pattern in the evidentiary materials contained in the co-incidence evidence in terms of the volume, frequency and timing of communications between Joffe and Stromer and the communication of information to Moody’s, the timing of internet checking or surveillance of securities in a particular entity, followed by the acquisition of financial products by Stromer in relation to the entities that provided Moody’s with confidential/insider information.

A pattern of conduct may, particularly in a circumstantial evidence case, be capable of possessing considerable evidentiary force. It is at the end of the day a matter for the jury to determine whether the particular facts concerning particular threads or pieces forming the pattern destroy it or confirm it.

A particular event may not take on much meaning or give rise to inferences standing in isolation. However, when events preceding it and/or post dating it form part of the picture the probative force of the first piece of evidence may become the greater. In earlier stages of these proceedings a reference has been made to the observations of Brennan J in Sutton v R [1984] HCA 5; 152 CLR 528, I consider it appropriate to restate those observations.

Brennan J in Sutton v R (supra) at 550 also emphasised the need to assess evidence in its overall context:

I have again had regard to the necessary line of inquiry in determining the admissibility of co-incidence evidence as set out at [141] of my Judgment delivered on 17 August 2011.

Additionally, relevant principles to be applied, as stated by Simpson J in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 must be considered. Those principles are reproduced at paragraph 144 of the Judgment delivered earlier in these proceedings on 17 August 2011.

Mr Game submitted that evidence may not be capable of being used on a particular subject but that directions will not be able to cure the very risk of improper use by the jury because the Crown has pitched its case at such a high level both as to particulars and the use of evidence: Written Submissions at 30 March 2012 at [16].

Mr Dhanji SC made a similar submission and I have given close consideration to the matters raised in Written Submissions for Stromer at [16-20].

On behalf of the accused Joffe it was further submitted that the multiplicity of discreet facts, even if admitted in the form of summaries and the multiplicity of inferences said to require answer is ‘oppressive’ to the defendant with the indictment in its current form. Mr Dhanji, on behalf of Stromer, referred to the size of the task required of the jury and that the brief of evidence is very large. It was contended that there is a substantial risk that the nature, volume and complexity of the evidence will create difficulties for the jury in the individual consideration of each of the Counts.

The assignment of such a task, it was submitted, even with careful directions, carries a possibility of prejudice which is not outweighed by the probative value of the evidence.

The submission was that the GAS Count diverges from the pattern contended for by the Crown and does so to an extent that it does not have substantial probative value as co-incidence evidence in relation to the other Counts. Similarly it was argued that the other Counts do not have substantial probative value as evidence with respect to it.

In the Written Submissions at paragraph [22] it was submitted:

I have had specific regard to the particular considerations concerning GAS as set out in the written submissions at [21] – [22]. It is true that many of the matters referred to represent what has been termed “diversions from the pattern”. The threads or pieces of evidence constituting a pattern may be uniform although variations may occur and yet a pattern still remains. The fact that the GAS transaction was first in time means only that it may be the initial step in a course of conduct or, as the Crown contends, a joint venture. The fact that the acquisition was made by a relative may, but may not, constitute fact which destroys the pattern of trading.

I have previously considered the facts concerning GasNet. I have, in particular, considered the possibility that the transaction the subject of the GAS count has an innocent explanation. However, I do not consider that, taken in context, that the variations or “divergences”, referred to of themselves are of sufficient weight to deprive the evidence concerning the GAS count of its significant capacity as co-incidence evidence.

The evidence which the Crown seeks to rely upon in establishing its case does not depend only upon co-incidence evidence to establish the elements of the offences the subject of the 10 Counts against Joffe and the 10 Counts against Stromer.

The evidence which the Crown seeks to rely upon falls into two categories. The first is circumstantial evidence constituted by a number of pieces of evidence. It is commonplace that the elements of an offence may be established other than by direct evidence. Proof of a number of facts may provide the foundation for establishing, by process of inference, other facts by which elements of an offence are proved: Edwards v The Queen (supra) at 201.

In the present case the Crown relies upon individual pieces of evidence to establish a basis for inference fact finding, the drawing of inferences, of course, being part of the process of finding material facts: Edwards v The Queen (supra) at 202.

Accordingly the Crown case seeks to rely both upon facts from which other facts relevant to the facts in issue may be inferred, and additionally to rely upon co-incidence evidence to strengthen its case in that respect.

Many of the submissions made for both accused focussed upon the proposition that the Crown seeks to essentially rely upon co-incidence evidence to establish the elements of possession and communication. That, of course, is not the case. The Crown seeks to erect the superstructure of its case based upon both circumstantial evidence constituted by primary facts as well as co-incidence evidence in support of its case as to the existence of a ‘system’ or ‘joint venture’ with respect to insider trading.

The co-incidence evidence the Crown seeks to rely upon does, in my assessment, have significant probative value for the purpose of s.98. In arriving at the conclusion which I have expressed in that respect, I have sought to test the strength of the co-incidence evidence by assuming the possibilities to which I have referred do exist, but that notwithstanding, I have, in my assessment, concluded that such possibilities do not substantially alter the capacity for cogency which the co-incidence evidence possesses.

On a consideration of the evidence which the Crown seeks to rely upon I do not consider in the assessment or evaluation required by s.98 that it strongly either supports or gives rise to the alternative explanations or inferences raised by the accused Joffe or Stromer and/ or as identified for consideration in the judgment of Whealy JA. In any event the capacity of the co-incidence evidence remains, in my assessment, strong and cogent even if it be assumed that the alternatives are open on that evidence.

I have considered the application of s.101 of the Evidence Act to the facts of this case. Given the number of Counts to be tried in the one trial and having regard to the submissions that have been made on behalf of both accused to which I have referred as to “prejudice” arising from a joint hearing considered, I consider that it is prudent to further inquire into the way in which the Crown intends to proceed at hearing, so that I will be in a fully informed position to evaluate submissions that have been made on behalf of each accused. It is my intention, following a further hearing on that matter, to then make a ruling as to whether the co-incidence evidence can be used in accordance with the provisions of s.101 of the Evidence Act.

I confirm the order I have made to the effect that the co-incidence evidence is admissible pursuant to s.98 of the Evidence Act.