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[2022] QCA 103
appellant. For each of the six counts, the appeal was allowed, the conviction quashed and a retrial ordered. The application for leave to appeal against sentence was dismissed ([21]–[22], [135]).
The Court of Appeal set aside Ben Jayaweera’s six fraud convictions because the jury was not properly told what state of mind the prosecution said made his conduct dishonest. It was not enough to tell the jury to apply ordinary standards of honesty. The jury also needed to decide whether Jayaweera had the particular knowledge, belief or intent alleged for the conduct underlying each count. The appeal court could not safely decide that the error made no difference by reassessing the trial record, so it ordered a retrial. Callaghan J gave additional reasons, finding serious failures by trial counsel in obtaining instructions and presenting the defence.
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2,594 words · generated 08/10/2026
R v Jayaweera [2022] QCA 103 concerned six convictions for fraud under s 408C(1)(e) of the (Qld). The appellant, Ben Jayaweera, had been a director of a financial planning agency. The Crown alleged that, through 28 transactions involving six groups of investors, he dishonestly caused pecuniary detriment exceeding $30,000 on each count ([2], [8]–[10]).
1 cited instrument linked from this judgment.
The prosecution case involved two broad kinds of conduct. In the first, Jayaweera allegedly made representations about the Australian Diversified Sector Income Fund (ADSIF), including that it was diversified, leading investors to transfer funds that were in substance put into companies associated with an abalone farming project. In the second, he allegedly caused transfers from clients’ accounts without their authority ([10], [24]). The investors’ evidence, as summarised by Callaghan J, was that they had not been told their funds would be invested solely in an abalone project, and that some investors said they would not have invested had they known that ([34]–[46]).
The trial focused on dishonesty. The prosecutor described it as “the sole issue” and argued that the jury could infer dishonesty from the circumstances, including what investors were not told ([60]–[61]). The trial judge told the jury to decide whether the conduct was dishonest by the standards of ordinary honest people. The judge also referred to the possibility that concealing the true nature of a scheme might be dishonest ([63], [65]).
The appeal court concluded that those directions did not go far enough. The jury was not told what particular knowledge, belief or intent the Crown said made the conduct dishonest, nor directed to decide whether Jayaweera had that state of mind when carrying out the acts relied on for each count ([14]–[18]). Fraser and Bond JJA allowed the appeals on that basis. Callaghan J agreed with the result and also found serious failures in trial counsel’s preparation and conduct ([90]–[106]).
The orders were that all six convictions be quashed and a retrial ordered on each count. The application for leave to appeal against sentence was dismissed ([21]–[22]).
The Court’s central concern was the difference between conduct that causes financial loss and conduct that is dishonest. A person may make a misrepresentation innocently or negligently. An agent may exceed authority without acting dishonestly. The court said that an additional element is needed: the accused must have the relevant state of knowledge, belief or intent, and the conduct must be dishonest by ordinary honest standards ([11]).
For the first class of transactions, the Crown later said its case was that Jayaweera knowingly made false representations about ADSIF. For the second, it said he knew he lacked authority to make the transfers ([14]). But the prosecution had not framed its case that way at trial, and the summing-up did not identify the particular state of mind alleged. It was not sufficient to tell the jury generally to apply ordinary honest standards ([14]).
The governing direction required the judge to identify the knowledge, belief or intent said to make the conduct dishonest, and instruct the jury to decide whether the accused had it. If so, the jury then had to decide whether the act was dishonest on that account ([13], citing Peters v The Queen). The judgment adopted the recent statement in R v Mirotsos of that approach ([13]). The required directions were especially important here because six counts involved different groups and multiple transactions. The question of dishonest causative conduct had to be considered separately for each count ([15]–[17]).
The Crown’s presentation made the omission more significant. Evidence was admitted on all counts without a restriction on use. Although the Crown identified evidence relevant to particular counts, it also relied on similarities between the appellant’s conduct across the counts. The jury was not told what circumstances could permit evidence about one complainant to assist in considering another count, or warned against propensity reasoning ([16]–[17]). The problem was not simply that the jury heard evidence about multiple investors. It was that they were not given a sufficiently specific framework for deciding the essential mental element count by count.
The Crown also relied on the proviso in s 668E. The court explained that applying it would require the appellate court to assess for itself whether the properly admitted evidence established guilt to the criminal standard ([19]). The court could not do that reliably. The direction error concerned the contested element of dishonesty, so the verdicts could not be treated as a valid independent resolution of the whole record. The global presentation of evidence and the limits of appellate review from a written record further prevented a reliable assessment ([20]). The proviso therefore could not save the convictions.
Callaghan J gave a distinct additional analysis of trial counsel’s conduct. He found that counsel had strongly advised Jayaweera not to give evidence before having received or examined all prosecution material, and had not obtained a detailed written proof of evidence ([30]–[31]). At trial, counsel did not put Jayaweera’s account about explaining the abalone project to the investor witnesses, although Jayaweera later swore that he had given that information ([48], [74]–[76]). Callaghan J considered that adequate instructions could have provided a basis for cross-examination and could have informed advice about whether Jayaweera should give evidence ([91]–[95], [101]–[106]).
That analysis must be kept distinct from the basis on which Fraser and Bond JJA allowed the appeal. They considered it unnecessary to decide the counsel ground once the dishonesty-direction ground succeeded ([6]). Callaghan J nevertheless concluded that counsel’s conduct caused an outcome-based miscarriage and, exceptionally, a process-based miscarriage ([90], [106]).
The judgment applies, rather than announces a wholly new test for dishonesty directions. The direction rule is stated through Peters v The Queen: when the jury must decide whether an act was dishonest, the judge must identify the knowledge, belief or intent said to make it dishonest, and direct the jury to determine whether the accused had that state of mind and whether the act was dishonest on that basis ([13], [111]–[112]). The Court of Appeal also relied on the formulation in R v Mirotsos ([13]).
The decision’s practical contribution is its application of that rule to a complex financial-fraud trial with several counts and transaction types. It emphasises that a general instruction to apply ordinary honest standards does not necessarily suffice. Where the prosecution case depends on a particular state of mind, that alleged state of mind must be explained to the jury. Here the direction also needed to focus the jury on the relevant conduct and state of mind for each count ([14]–[18]).
On the appellate proviso, the judgment applies Orreal v The Queen. It states that an appellate court must assess guilt for itself where the proviso is invoked, but recognises that the nature of an error can prevent that exercise, including where a wrong direction concerns an element of liability ([19]–[20]). The decision demonstrates that an appellate court’s inability to conduct that assessment may arise from the combination of a defective direction, a contested element and the way evidence was presented across counts.
Callaghan J’s separate reasoning addresses incompetent representation. He drew on the High Court authorities concerning outcome-based and process-based miscarriage. An outcome-based miscarriage may arise if counsel’s conduct deprived the accused of a fairly open chance of acquittal. A process-based miscarriage may arise, exceptionally, where counsel’s conduct was so deficient that the accused did not receive a fair trial according to law ([82]–[90]). His Honour treated the absence of proper instructions as particularly serious in a complex case where dishonesty depended on what had been said and understood in individual investor dealings ([101]–[106]).
The judgment does not establish that every failure to create a written proof, or every unsuccessful tactical decision, will require a conviction to be set aside. Callaghan J’s analysis repeatedly ties the conclusion to the circumstances of this trial: the volume and complexity of the case, the centrality of dishonesty, the failure to investigate the appellant’s account and the resulting inability to test the investors’ evidence ([93], [101]–[106]). The judgment’s holdings should therefore be read against its stated facts and reasoning.
At [11], Fraser and Bond JJA said that misrepresentations and unauthorised transfers do not necessarily prove dishonesty. In plain English, proving that a client lost money or that an agent acted outside authority does not itself answer whether the accused acted dishonestly.
At [12], they stressed that the prosecution must state clearly what it says made the conduct dishonest. The practical point is that the jury should not be left to conduct an undefined inquiry into dishonesty. The Crown must identify the state of mind it relies on, even where it says that state of mind must be inferred from circumstances.
At [13], the judgment set out the direction required: identify the accused’s alleged knowledge, belief or intent; ask whether the accused had it; and, if so, ask whether the conduct was dishonest by ordinary honest standards. In everyday terms, the jury must know both the particular mental element alleged and the ordinary honesty standard it must apply.
At [17]–[18], the Court connected the missing direction to the structure of the trial. Multiple complainants and transactions meant the jury needed to focus on the state of mind associated with the conduct said to support each count. The omission caused a miscarriage of justice.
At [20], Fraser and Bond JJA explained why the proviso could not apply. The appellate court could not simply accept the jury’s verdicts and then say the evidence was strong. The jury’s reasoning had been affected by a direction error on an element of liability, and the appellate court could not reconstruct a reliable assessment from the record.
At [93]–[95], Callaghan J explained the consequences of failing to obtain proper instructions. Without a detailed account from the accused, counsel could not properly advise on options, decide what to put to witnesses or make an informed decision about whether the accused should testify. His Honour also noted that the appeal affidavits were admitted without cross-examination, so the appellate court had to take their contents at face value for the purpose of the appeal, while recognising their limitations ([94]–[95]).
At [112], Callaghan J said the summing-up had to meet the Peters requirements explicitly. Put simply, the judge could not expect the jury to assemble the required legal direction from scattered passages elsewhere in the summing-up.
The core direction principle is engaged where dishonesty is an element and the prosecution’s case depends on a particular state of the accused’s knowledge, belief or intent. It is especially relevant where the conduct could, in isolation, have been innocent or merely negligent. Examples identified in the judgment include a representation alleged to have been made with knowledge that it was false, or a transfer alleged to have been made with knowledge that the accused lacked authority ([11]–[14]).
The case also highlights multi-count trials where the alleged dishonest acts differ between counts or involve multiple transactions. In that setting, a jury direction may need to identify the relevant alleged state of mind in relation to the acts supporting each count, rather than describe dishonesty only in general terms ([15]–[18]). The decision is particularly pertinent where evidence is admitted across counts and the prosecution relies on similarities between alleged conduct. The majority considered that such a presentation makes count-by-count focus more important ([16]–[17]).
For the proviso, the decision is relevant where the error concerns an element the jury had to decide and the appellate court cannot independently evaluate guilt reliably from the record. The reasons identify a wrong direction on an element of liability as a type of error that may prevent the required appellate assessment ([19]–[20]).
Callaghan J’s additional analysis may be relevant where an appeal challenges counsel’s representation and the alleged failures prevented the accused’s factual account from being investigated, put to witnesses or presented to the jury. But the judgment does not make the absence of a written proof alone a universal basis for setting aside a conviction. His Honour’s findings depended on the surrounding facts and the way the preparation failures affected this defence ([93]–[106]).
The decision also flags potential concerns where a single count combines several transactions or alleged acts. Callaghan J discussed uncertainty about which detriment and dishonest act the jury had unanimously found, but did not decide that issue as a separate ground because of how the appeal ground was framed ([117]–[123]).
The judgment text does not provide decisions issued after R v Jayaweera that considered or applied it. On the material available here, it is therefore not possible to describe how later courts have treated this case.
The judgment itself identifies the authorities it relied on. It followed the dishonesty-direction approach in R v Mirotsos, which drew on Peters v The Queen, R v Dillon; Ex parte Attorney-General (Qld), R v Lyons and R v Davidson ([13]). It relied on Orreal v The Queen when explaining the appellate task under the proviso ([19]–[20]). On incompetent representation, Callaghan J discussed the High Court authorities including TKWJ v The Queen, Ali v The Queen and Nudd v The Queen ([82]–[89]).
Those citations show the doctrinal sources used by this Court, not how later courts have treated Jayaweera. The extract does not establish whether later cases followed, distinguished or limited its reasoning.
The judgment leaves several matters unresolved. First, Fraser and Bond JJA did not decide the abandoned similar-fact ground. They observed that there may have been something to be said for it because the jury was not told when evidence about one complainant could support an inference about another, or warned against propensity reasoning ([16]–[17]). Callaghan J later expressed concern that a direction was required, but the appeal had already succeeded on other grounds ([126]–[131]). The judgment therefore identifies the issue without finally determining the precise directions required in every such trial.
Second, the appeal court did not resolve the separate ground concerning the structure of counts and verdicts. Callaghan J explained how counts combining several detriments and methods could make the verdict’s meaning and jury unanimity uncertain. He noted the potential relevance of separate, alternative or special verdicts, but concluded that the point could not be decided as an appeal ground in the form presented ([117]–[123]).
Third, the judgment does not prescribe a complete model summing-up for dishonesty in every fraud case. It states the required elements of the direction and explains why the directions here failed. The precise wording will depend on the Crown’s case, the alleged transactions and the evidence at any retrial ([11]–[18], [112]).
Fourth, Callaghan J’s process-based miscarriage analysis was expressly exceptional. The judgment does not define a comprehensive boundary for when incompetent representation alone deprives an accused of a fair trial, beyond discussing the established authorities and the circumstances before the Court ([85]–[90], [96]–[106]).
Finally, the Court did not decide the appellant’s factual account about what he told investors. Callaghan J said the appeal affidavits had not been tested by cross-examination and that the appellant’s account was “bald and two-dimensional”, while also concluding that it could not be discounted for a legitimate forensic reason on the appeal record ([94]–[95]). The retrial, rather than the appeal, was the setting in which disputed evidence could be tested.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Jayaweera [2022] QCA 103
PARTIES: R / v / JAYAWEERA, Ben / (appellant/applicant)
FILE NO/S: CA No 301 of 2019 / DC No 493 of 2019
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 16 October 2019; Date of Sentence: 17 October 2019 (Richards DCJ)
DELIVERED ON: 10 June 2022
DELIVERED AT: Brisbane
HEARING DATE: 19 November 2021
JUDGES: Fraser and Bond JJA and Callaghan J
ORDERS: For each of the six counts on which the appellant was convicted: appeal allowed;conviction quashed; andretrial ordered.Application for leave to appeal against sentence dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty by a jury of six counts of fraud under s 408C(1)(e) of the Criminal Code – where the appellant was convicted of dishonestly causing a person a pecuniary detriment – where the impugned conduct involved 28 particular money transfer transactions – where the evidence tendered at trial was admitted in relation to all of the counts, without any restriction as to its use – whether the jury was adequately instructed about the mental element of dishonesty – whether the trial judge erred in failing to identify the knowledge, belief or intent which was said by the Crown to render the relevant act dishonest and whether the trial judge failed to instruct the jury to decide whether the appellant had that knowledge, belief or intent – whether a miscarriage of justice occurred / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – APPLICATION OF PROVISO TO PARTICULAR CASES – where the appellant was found guilty by a jury of six counts of fraud under s 408C(1)(e) of the Criminal Code – where the trial judge did not adequately instruct the jury on the mental element of dishonesty – where the Crown invited the Court to form the view that no substantial miscarriage of justice had occurred – whether the Court could assess for itself that the evidence properly admitted at trial was able to establish guilt to the requisite criminal standard – whether the nature of the error prevented the Court from being able to conduct that assessment – whether the proviso could be applied / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was found guilty by a jury of six counts of fraud under s 408C(1)(e) of the Criminal Code – where the trial counsel took a direct brief – where the trial counsel did not take written instructions from the appellant – where the trial counsel advised the appellant not to give evidence prior to receiving all prosecution material – whether the incompetence of trial counsel amounted to a miscarriage of justice / Criminal Code (Qld), s 229B(4)(c), s 408C(1)(e), s 567(3), s 568(3), s 624, s 668E / Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited / Browne v Dunn (1893) 6 R 67, cited / BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47, cited / Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59, cited / Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited / Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, followed / Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7, cited / R v Davidson [2022] QCA 22, cited / R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56; [2015] QCA 155, cited / R v Lyons [2021] QCA 136, cited / R v Mirotsos [2022] QCA 76, followed / R v W [1998] QCA 90, cited / TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited / Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
COUNSEL: J A Cahill for the appellant/applicant / P McDonald SC, with W R Ness, for the respondent
SOLICITORS: O'Sullivans Law Firm for the appellant/applicant / Director of Public Prosecutions (Commonwealth) for the respondent
FRASER and BOND JJA: We have had the advantage of reading in draft the reasons for judgment of Callaghan J. His Honour’s reasons enable us to express our views in a more abbreviated way than might otherwise have been possible.
The appellant, who was the director of a financial planning agency, was convicted, after a trial, of six counts of dishonestly causing a person a pecuniary detriment contrary to s 408C(1)(e) of the Criminal Code 1899 (Qld), each with the circumstance of aggravation that the detriment concerned was more than $30,000.
The following four grounds of appeal were identified by the appellant in an amended notice of appeal filed before this appeal came on for argument the second time:
“1.The trial miscarried as a result of the conduct of the appellant's counsel at trial. This conduct amounted to 'flagrant incompetence' and thereby gave rise to a miscarriage of justice in which the appellant was deprived of a fair trial according to law on the basis that the case of the appellant was run in the absence of a written proof.
2.The learned trial judge erred in failing to direct the jury as to what the alleged dishonesty was, in so far as the summing up included a direction that there was no direct evidence before the Court, as to the state of mind of the appellant when he made the alleged misrepresentations. This amounted to a miscarriage of justice.
3.The verdict is unsafe and unsatisfactory on the basis that the jury were not directed on similar fact evidence.
4.The verdict is unsafe and unsatisfactory on the basis that counts 1 to 6 on the indictment were not particularised and the jury were not given a direction pursuant to this particularisation.”
At the commencement of oral argument counsel for the appellant withdrew any reliance on ground 3.
Counsel for the appellant also confirmed that despite the use of the words “unsafe and unsatisfactory”, the intention of ground 4 was to identify a failure of process which occasioned a miscarriage of justice. He did not intend to advance the ground of appeal usually advanced by the use of the words “unsafe and unsatisfactory” (namely that the verdict was unreasonable and not supported having regard to the evidence) and confirmed that the Court was not required to perform the task which it would be required had such a ground been advanced (namely to do an independent assessment of the evidence to determine whether the evidence was capable of supporting a verdict).
It remains unclear what failure of process occasioning a miscarriage of justice the appellant sought to raise by ground 4, but it is unnecessary to resolve that question, or indeed – although there is much to criticise about the way in which the appellant’s counsel ran the trial – the questions raised by ground 1, because, for reasons which follow, the appellant had an unanswerable case that a miscarriage of justice was occasioned by the inadequacy of the directions given to the jury on the element of dishonesty. Despite the infelicitous wording of the appeal ground, that was the evident basis of the appellant’s case on ground 2.
In order to prove offending contrary to s 408C(1)(e), the Crown was required to prove that (1) a person had suffered a pecuniary detriment; (2) that it was the defendant who caused that to occur; and (3) that he did so dishonestly.
As Callaghan J has explained, the Crown sought to discharge its burden by evidence addressing 28 particular money transfer transactions conducted in relation to each couple and the involvement which the appellant had in those transfers coming about. Specifically:(a)Count 1 concerned Neil and Karen Kirby and involved transfer transactions 1, 8, 9 and 13.(b)Count 2 concerned Lesley Kraemer and Brian McKirdy and involved transfer transactions 2, 3, 10, 16, 17, 18 and 21.(c)Count 3 concerned Raymond Whitta and Susan Whitta and involved transfer transactions 4, 5, 6, 11, 14 and 15.(d)Count 4 concerned Craig Zalewski and Julie Zalewski and involved transfer transactions 7, 19, 20, 22, 23, 24, 25, and 26.(e)Count 5 concerned Malcolm Culverhouse and Robyn Culverhouse and involved transfer transaction 12.(f)Count 6 concerned Steven Gager and Rebecca Gager and involved transfer transactions 27 and 28.
The transfers were those identified in the tables referable to each count set out in the reasons for judgment of Callaghan J with reference to each couple. Although the tables there set out do not set out the transaction numbers, they were sequentially those identified above.
The 28 transactions fell within two broad classes. The first class of transactions (namely transactions 1-9, 11, 13, 14-17, and 19-21) involved the appellant allegedly causing the detriment by making particular misrepresentations to the couples concerned, which had the result that the couples transferred monies out of their accounts and into accounts controlled by the appellant who used the monies in various ways (e.g investing in an abalone venture, paying expenses, paying interest to other investors) which led ultimately to the monies being lost. The second class of transactions (namely transactions 10, 12, 18 and 22-28) involved the appellant allegedly causing the detriment by making unauthorised transfers out of the accounts of the couples concerned and into an account controlled by him and, in similar fashion, to the monies being lost.
“Yet the law is clear that in a case of this nature, the Crown must articulate clearly the relevant aspect of the accused’s knowledge, belief or intent which, on the Crown case, rendered the accused’s conduct dishonest and the trial judge must:
(a)identify for the jury the knowledge, belief or intent of the accused which was said to render the impugned conduct by the accused dishonest; and
(b)instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the conduct was dishonest by the standards of ordinary honest people.”
Before this Court, the Crown argued that its case concerning dishonesty was that for the first class of transactions, the appellant had knowingly made false representations as to the circumstances of the Australian Diversified Sector Income Fund into which he was encouraging the investors to put their money. And for the second class of transactions, the Crown said its case was that the appellant knew that he was not authorised to make the impugned transfers. The problem was, however, that the Crown did not frame its case that way at trial and the trial judge, although directing the jury as to the need to find conduct dishonest by the standards of ordinary honest people,3 did not give directions to the jury in the manner articulated at [13] above, or with any particular reference at all to the need to reach any particular conclusion as to the appellant’s state of knowledge, belief or intent at the time he did the acts which were said to be causative of the pecuniary detriment suffered by the complainants.
Moreover, and as indicated above, there were six counts involving six different groups of complainants and multiple transactions in relation to each group. Evidence as to the representations which were made and the authority which was given was in some respects similar, but the question whether there was dishonest causative conduct had to be considered separately for each count.
Yet all the evidence tendered was admitted in relation to all of the counts, without any restriction as to its use. Even though the Crown did make some attempt to identify the evidence which was particularly relevant to each count,4 no attempt was made by submission or direction to constrain the jury against having regard to any other evidence. Indeed, the Crown explicitly relied on similarities as between the conduct of the appellant in relation to each count in its opening5 and in its closing.6 Yet no direction was given identifying the considerations which, if established, might permit the jury to use one complainant’s evidence in support of accepting the truthfulness and reliability of another complainant. Nor was any direction given seeking to constrain the jury from relying on propensity reasoning.
For that reason, there may well have been something to be said in favour of the abandoned, though ill-formulated, ground of appeal which proposed complaining about the use of similar fact evidence, but it is not necessary to express a view on that question. Nor is it appropriate, as the ground was not addressed in argument. The present point is that the global approach which was taken to the evidence relating to the dishonesty element of the offences rendered it all the more important that the jury be directed to focus, on a count by count basis, upon whether the appellant had the state of knowledge, belief or intent which the Crown alleged he had, in relation to the conduct which was said, for the particular count concerned, to constitute the dishonest acts which were causative of the pecuniary detriment suffered by the complainants concerned in that count. That did not happen.
“1.The defendant was the director of a financial planning agency; Growth Plus. He was also the director of several companies involved with an abalone farming operation in South Australia. The offences were committed using two different methods over a two year period;
He advised Growth Plus clients to set-up self-managed super funds and then had them unwittingly assign authority to him to transact on their account. He would then transfer the clients' super funds into the companies related to the abalone project without their knowledge, or;
He advised clients to restructure their current investments or superannuation to enable them to invest in a "diversified fund" named; The Australian Diversified Sector Income Fund (ADSIF). He produced promotional material and 'investor updates' to give the impression of a safe, diversified and successful investment. The fund however was not diversified. It solely invested funds into the companies related to the abalone project. His clients relied on his representations and advice when they agreed to invest; had they known that the fund invested solely in an abalone project they would not have invested.
[…]
3.The abalone project eventually became financially distressed and could no longer continue operation.
4.The six counts on the indictment relate to 28 transactions where 12 clients have collectively lost $5,958,870.04.” (emphasis added)
There is no detailed history of the litigation in the record, but the appellant’s trial was listed to commence in the District Court on 23 September 2019.10
The appellant originally enjoyed legal representation provided by Legal Aid Queensland. Counsel was instructed. However, in August 2019 the appellant became unsatisfied and dispensed with their services.11 He made contact with a barrister who had acted for his ex-wife in an unrelated matter.12
This barrister (hereafter, “trial counsel”) advised that he had the capacity to represent the appellant “on a direct brief”13 – that is, without assistance from an instructing solicitor.
On 5 September 2019, trial counsel sent to the appellant a 17-page document, the stated purpose of which was to provide “disclosure under s 309(2) of the Legal Profession Act 2007”, and the barrister’s offer to enter into a costs agreement under s 322(1)(c) of that Act.14 Indeed, the basis for his financial remuneration was explained at length.
This document included a description of the trial counsel’s advocacy experience, which was provided in these terms:15
“12.I was first admitted as a barrister in 1986. My advocacy experience has been concentrated over the years 2004 - 2019. I have appeared in uncontested and contested applications, trials and appeals, and advised concerning these types of legal matters, in courts and tribunals as follows:
High Court of Australia
Federal Court of Australia (trials and appeals)
Family Court of Australia (trials and appeals)
Federal Magistrates Court of Australia
Federal Circuit Court of Australia
Administrative Appeals Tribunal
Australian Industrial Relations Commission
Queensland Court of Appeal
Supreme Court of Queensland
District Court of Queensland
Magistrates Court of Queensland
Industrial Magistrates Court of Queensland
Queensland Industrial Relations Commission
Industrial Court of Queensland
Commercial and Consumer Tribunal (Queensland)
Nursing Tribunal (Queensland)
Queensland Civil and Administrative Tribunal
Retail Shop Leases Tribunal (Queensland)
Australian Capital Territory Civil and Administrative Tribunal
Supreme Court of Victoria
Court of Appeal of the Supreme Court of New South Wales
Supreme Court of New South Wales
Supreme Court of South Australia
Magistrates Court of Tasmania
Supreme Court of Tasmania.
13.I perform principally commercial and corporate legal work, together with family law, taxation law and criminal law.”
“27.I confirm my advice given to you by email and in conference that on my preliminary assessment of the evidence, the Crown case against you is quite strong, and that there is a significant risk that you may be determined to be guilty at trial. Depending as to which charges of the 6 charges preferred against you a jury might find you guilty on to the relevant standard (beyond reasonable doubt) against you, there is a significant risk that you will be sentenced to an actual term of imprisonment if a guilty verdict is returned by the jury.
28.You need to appreciate that no matter what you say about your innocence (and your instructions are that you are innocent and that you did not have any dishonest intent to cause detriment to your clients), a jury could disregard your protestations of innocence and convict you at trial. You are at liberty at any time between now and the conclusion of your trial to change your not guilty plea to a guilty plea, and this may be a favourable consideration in a reduced or discounted sentence. The earlier you plead guilty, the more likely it is that a court will take your guilty plea into account and adjudicate a lesser sentence for you. I also inform you that, ethically speaking, if you tell me at any stage that you are guilty of any of the 6 offences with which you are charged, I cannot then proceed to conduct your defence and assert that you are innocent if you in fact have told me that you are guilty of any of the 6 charges. If that were to apply, then you would have to either instruct me to plead guilty on your behalf, or discharge me (or I discharge myself) as your Counsel and you find another barrister or solicitor to conduct your defence on your behalf.
29.Please understand that any decision about you giving evidence personally at trial in your own defence will depend upon the strength of the Crown case against you. It is my strong advice to you at the moment that you do not give evidence at trial. This is because no matter what you think about your innocence, a competent Crown prosecutor will invariably inflict some damage on you in cross-examination which may not be repairable by me in re-examination, and which may be significant in the eyes of the jury and which could persuade the jury to convict you of any of the 6 charges. I recommend you go up to the District Court, and sit through 1 or 2 criminal trials before you participate in your own.” (emphasis in original)
Course of the trial
Prosecution opening address
Prosecution evidence
Count 1 – Investors: Mr and Mrs Kirby; Total loss: $1,633,041.73
Date Transferred from Transferred to Amount ($)
5/09/2013 K A Kirby & N R Kirby Growth Plus 200,000
2/05/2014 N & K Kirby as trustees for the Kirby Private Pension Fund GP No 3 680,000
2/06/2014 N & K Kirby as trustees for the Kirby Private Pension Fund GP No 3 275,000
23/09/2014 N & K Kirby – Equity Lending account GP No 3 478,041.73
Count 2 – Investors: Ms Kraemer & Mr McKirdy; Total loss: $1,226,865.43
Date Transferred from Transferred to Amount ($)
11/10/2013 B McKirdy Growth Plus 40,000
16/10/2013 L A Kraemer Growth Plus 40,000
13/08/2014 B McKirdy & L Kraemer as trustees for The Brian McKirdy & Lesley Kraemer Private Pension Fund GP No 3 219,000
25/09/2014 B McKirdy as the account holder of Equity Lending account GP No 3 101,227.84
25/09/2014 Lesley Kraemer as the account holder of Equity Lending GP No 3 186,637.59
21/10/2014 B McKirdy & L Kraemer as trustees for The Brian McKirdy & Lesley Kraemer Private Pension Fund GP No 3 540,000
2/03/2015 L A Kraemer & B McKirdy GP No 3 100,000
Count 3 – Investors: Mr & Mrs Whitta; Total loss: $1,456,4005.15
Date Transferred from Transferred to Amount ($)
14/11/2013 R & S Whitta as trustees for the Whitta Private Pension Fund GP No 4 900,000
13/12/2013 R & S Whitta as trustees for the Whitta Private Pension Fund GP No 3 170,000
20/12/2013 R & S Whitta GP No 3 120,000
19/08/2014 R & S Whitta as trustees for the Whitta Private Pension Fund GP No 3 50,000
24/09/2014 R J Whitta Equity Lending GP No 3 98,744.41
24/09/2014 S P Whitta Equity GP No 3 117,660.74
Count 4 – Investors: Mr & Mrs Zalewski; Total loss: $1,190,557.73
Date Transferred from Transferred to Amount ($)
23/12/2013 J A Zalewski & C D Zalewski GP No 3 50,000
9/12/2014 J A Zalewski Equity Lending GP No 3 25,000
18/02/2015 J A Zalewski Equity Lending GP No 3 65,557.73
5/03/2015 J A & C D Zalewski atf J & C Zalewski GP No 3 175,000
10/03/2015 J A & C D Zalewski atf J & C Zalewski GP No 3 230,000
14/05/2015 J A & C D Zalewski atf J & C Zalewski GP No 3 595,000
23/06/2015 J A Zalewski & C D Zalewski GP No 3 40,000
17/07/2015 J A & C D Zalewski atf J & C Zalewski Growth Plus [Quay] 10,000
Count 5 – Investors: Mr & Mrs Culverhouse; Total loss: $205,000
Date Transferred from Transferred to Amount ($)
3/09/2014 M Culverhouse & R Culverhouse Private Pension Fund GP No 3 205,000
Count 6 – Investors: Mr & Mrs Gager; Total loss: $247,000
Date Transferred from Transferred to Amount ($)
19/10/2015 S J & R E Gager atf S&R Gager Self-Managed Super Fund ADSIF 200,000
26/10/2015 S J & R E Gager atf S&R Gager Self-Managed Super Fund ADSIF 47,000
Other evidence
The Crown also tendered, as part of its case, a “voluntary interview” that was conducted between investigators from the Australian Securities and Investments Commission (ASIC) and the appellant. The appellant was not, in this interview, asked about anything that might have been relevant to counts 2, 3 or 5. In respect of the dealings which were the subject of other counts, the appellant did claim that “most (of the investors) knew there was an abalone project”47 and, in effect, that they “would have” been told about the assets to which the fund was lending.48
Although the substance of these claims had the potential to be relevant to counts 1, 4 and 6, it was not raised by trial counsel during his cross-examination of the investor witnesses who gave evidence that substantiated these counts. In no case did trial counsel – who, as noted, did not have an instructional statement from his client – challenge any of the witnesses about any of the evidence that they gave concerning conversations they had with the appellant. In no case did he suggest to any investor that the appellant had, for example, explicitly referred to the fact that the monies were being invested into a fund that was lending money to aquaculture projects – specifically projects that involved abalone, which had a high market value.49
Rather than do any of those things (the potential relevance of which is made clear below), the focus of trial counsel during cross-examination was, in large part, on certain documents such as the ADSIF Information Memorandum.50 It contained the following information describing the nature of ADSIF’s investments:51
“The constitution (i.e. the governing rules) of [ADSIF] has no restrictions on what [it] can invest in. The principal investments will however be existing projects that are related to Australian shares, Australian Property, Aquaculture and Agriculture based in the Australian primary industry. [ADSIF] will hold cash up to 15% or less at any given time which will allow the funds to pay consistence distributions to the investors. [ADSIF] may also invest in structured investments that may or may not be listed in the Australian Stock Exchange.”
“[ADSIF] will identify potential investments in Diversified Aqua Culture, Agriculture, Property and Cash investments which satisfy [our] criteria and will investigate the viability and sustainability of these projects to medium to long term.”53
“There’s a heading on the top left-handside of the page Steps to Proceed:
Read this statement of advice carefully.
Did you do that, Mr Whitta? -- We [meaning Mr Whitta and his wife] went through it. Yes.
[…]
And when you say you went through it, was that in a meeting with Mr Jayaweera or elsewhere? – Possibly both.
[…] So… you say in your evidence… that you may have gone through it at least twice? – Possibly.
[…] And the second bullet point is:
Please, discuss with us any issues or concerns before proceeding.
Did you raise any issues with Mr Jayaweera about this SOA? – I’ve – I made a few notes through it. […] And I can’t recall what the – you know, there would have been discussion, but I can’t recall what the outcomes were.”
“Now do you remember reading that when you went through this document with your husband? – Yes.
You do remember reading it? – Yes.
All right. And you accept it’s directing your attention to the possibility of investments in Australian aquaculture, agriculture and property? –And shares.
And shares, yes. But I’m just asking you in particular about Australian aquaculture, agriculture and property? – It [says], “Such as”.
All right. Okay. So but you accept that it’s pointing you to the possibility of investments in Australian aquaculture, agriculture and property? – Yes.”
Some documents referenced were dated between September 2012 and March 2014. As a strategy calculated to expose investors’ awareness, however, it could never succeed. It was not until between June 2014 and January 2016 – well after the investors had joined ADSIF – that they were provided with various “investor updates”, and eventually with an Information Memorandum containing detailed references to the abalone farms in which their money was being invested.56
In sum, there was in the evidence no support for the proposition that investors were told that all of their money would be invested in aquaculture, still less that their money would be invested specifically in abalone farming. It was therefore not, and could never have been, open to defend the charges in this manner. If the prosecution case about dishonesty was to be damaged, it was necessary for there to be some basis on which to challenge the investors’ claims to have been kept in the dark about the abalone farm. This need was particularly obvious in the case of counts 2, 3 and 5. It is now known that the appellant was able and willing to give evidence which could have met that need.
The prospect that he might do that clearly troubled the learned trial judge, who raised with trial counsel her concern about whether he was complying with the rule in Browne v Dunn.57 Her Honour indicated that if it was necessary for further matters to be put to witnesses, they could be recalled for that purpose.58 After an overnight adjournment, counsel indicated that he did not require witnesses to be recalled.59
Consistent with the advice he had received, the appellant neither gave nor called evidence. His counsel had, however, tendered evidence in the course of the trial. The forensic value of this move was questionable, but it meant that he was required to address the jury first.
Defence closing address
In the course of his address, trial counsel acknowledged that the Crown would remind the jury that the investors had given evidence that they would not have put their money into an abalone farm, and that it had not been mentioned to them by the appellant.60 He submitted that this was the “wrong question”.61
Rather, he submitted, the jury should resolve the case on the basis that the investors had assumed a risk in order to get a reward.62 The fact that they had lost their money was unfortunate, but did not amount to proof of the charge. Trial counsel asserted that since the application forms for the cash management accounts63 – which the investors had all signed – gave the appellant the authority to operate the accounts,64 the appellant was, when dealing with their money, doing no more than exercising that authority.
Trial counsel also submitted that the available documents did reveal that aquaculture was a possible investment.65 It is apparent that the same cannot be said about abalone as a possible investment.66
Crown closing address
In the course of her address, the Crown prosecutor told the jury that, “really, the sole issue in this case is dishonesty”.67 As noted, it had already been explained that dishonesty would be established in a “circumstantial case” and the jury was reminded of the analogy with a jigsaw puzzle.68
Importantly, the fact of the appellant’s “not telling anybody it was an abalone farm” was said to be one of the pieces of that puzzle.69 Dishonesty was said to have been proven by, amongst other things, what the investors were not told.70 The jury was asked, rhetorically, “[h]ow is it portrayed that it was going to operate? How did it actually operate in substance?”.71 The effect of the submission was to highlight the alleged omission to inform investors about abalone.
The summing up
“Of course, during that interview, the accused did, essentially, in a roundabout way, claim that he was not acting dishonestly, that he was authorised to act in the way that he did in relation to his clients. If you accept that he made statements along that line, of that nature, and if you accept them as true, it’s up to you what weight you give to them and what you think they prove. If there’s answers that he gave which you might view as indicating his innocence, you’re entitled to have regard to those answers if you accept them and to give them whatever weight you think appropriate, bearing in mind that they haven’t been tested by cross-examination. In relation to both the answers upon which the prosecution relies and those which might point to innocence, it’s entirely up to you what use you make of them and what weight, if any, you give to them.”
“[T]he Crown has to prove that the accused caused a detriment, pecuniary or otherwise, to the person named in each of the charges or the people named in the charges. And in this case, the detriment is said to be a financial loss. Then the next thing the Crown has to prove is that the action of the accused was done dishonestly. Now, to prove that the accused acted dishonestly, the prosecution must prove that what the accused did was dishonest by the standards of ordinary, honest people. So, for the purposes of this, we’re assuming that you’re ordinary, honest people. So, really, you, as the jury, have to decide whether what he did was dishonest by that standard.
So dishonest is just a common English word, untrustworthy, deceptive. You apply what you understand the word dishonesty to mean and if the prosecutor has satisfied you beyond reasonable doubt that what he did was cause the financial loss by dishonesty, applying the standards of ordinary, honest people, then they have proved that part or that element of the offence.”
“In relation to the authority to proceed and signing of the authority to proceed and statements of advice, remember the authorisation must be made with knowledge of what you are proceeding with. They relied on what they had been told when they signed the authority to proceed.”
“The Crown says that the accused was dishonest in his dealings with the complainants because he either did not disclose that the fund was being directed to the abalone project, which was not income producing; that the fund was not diverse, that the fund was not secure because the farm was not income producing or that the funds were not going into a bank account with Adelaide Bank but had already been diverted to the ADSIF fund.
[…]
Investing in a scheme that doesn’t work doesn’t make you dishonest. But hiding from the investors the true scheme or the true nature of the scheme might.” (emphasis added)
Verdict and sentence
The Appeal
The appellant lodged a Notice of Appeal that contained grounds which are meaningless for current purposes.77 When the matter first came before this Court, an Outline of Submissions asserted that the trial counsel had conducted the trial in a manner that demonstrated “flagrant incompetence” and that a miscarriage of justice was the result.78 In support of that contention, the appellant filed an affidavit to which his trial counsel responded in a later affidavit.79
Not long after the hearing before this Court began on 3 June 2021, it emerged that the Notice of Appeal, Outline of Submissions and affidavit material were inadequate for the purposes of an appeal that involved a review of the way in which defence counsel had conducted the trial.80 The hearing of the appeal was adjourned until 19 November 2021.
Upon resumption, the Court was provided with further affidavits from the appellant and his trial counsel. An Amended Notice of Appeal included these grounds:
“1.The trial miscarried as a result of the conduct of the appellant’s counsel at trial. This conduct amounted to “flagrant incompetence” and thereby gave rise to a miscarriage of justice in which the appellant was deprived of a fair trial according to law on the basis that the case of the appellant was run in the absence of a written proof.
2.The learned trial judge erred in failing to direct the jury as to what the alleged dishonesty was, in so far as the summing up included a direction that there was no direct evidence before the Court, as to the state of mind of the appellant when he made the alleged misrepresentations. This amounts to a miscarriage of justice.
3.The verdict is unsafe and unsatisfactory on the basis that the jury were not directed on similar fact evidence.
4.The verdict is unsafe and unsatisfactory on the basis that counts 1 to 6 on the indictment were not particularised and the jury were not given a direction pursuant to this particularisation.”
Ground 1
Evidence in the appeal
The appellant’s two affidavits were received into evidence on the appeal without objection and without any requirement for cross-examination.84 The first, prepared before the abbreviated hearing on 3 June 2021, identified inadequacies in the conduct of his trial counsel,85 but said nothing about the evidence the appellant might have given in answer to the charges.
He did that in his second affidavit, in which he swore that he had advised all investors about the investments in aquaculture, specifically abalone, when they were originally introduced to the possibility of investing in ADSIF.86 He said that in every meeting and conversation that he had with the investors, he had referred to “the sea farm, land farm and then the processing plant”.87 He said that he explained the high market value of abalone and the commercial value it could obtain.88
He complained that “[w]ith all the documentary evidence available to my Counsel at trial, none of it was used to test or contest the complainant's evidence regarding their lack of knowledge of how their money was being invested.”89
He also swore as follows:90
“[36] When conferencing with Counsel at the beginning of the matter, I asked [trial counsel] how he was going to run the case. [Trial counsel] informed me that his approach to the trial would involve running an argument that the investors took risk by investing in the fund in order to achieve a higher return.
[37] I recall asking [trial counsel] how his approach would prove my honesty, as I was aware that the charge against me involved 'dishonestly causing pecuniary damage to investors'. [Trial counsel], as I recall, responded with words to the effect of "the jury will be shown that you did not receive any benefits."
[38] During the trial it became apparent to me that the evidence given by the complainants was contrary to my instructions and recount of events. I approached [trial counsel] regarding this issue and I was told that this could be addressed later. To the best of my knowledge it was never addressed.
[39] From the beginning of the trial I instructed my Counsel that I wished to give evidence and have the opportunity to tell the jury my version of events. My Counsel told me I would not be giving evidence and that it was the Crown's responsibility to prove my guilt. Although I continued willing, able and wanting to give evidence, I accepted and trusted [trial counsel’s] advice.
[40] At no point was I ever provided with the following from my Counsel:
(a)written advice; and/or
(b)instructions to sign.
[41] Some 3 years before the trial in August 2016, I participated in a record of interview with ASIC, regarding this matter. This interview was tendered by the Crown as evidence at the tria1. To the best of my knowledge [trial counsel] never discussed the contents of the interview with me, nor did he take any instructions from me regarding the interview.
[42] [Trial counsel] told me he had reviewed the documents himself and he never questioned me in any detail about the matter. I say that at no point did [trial counsel] go through the statement of facts with me, or take my instructions in relation to the statement of facts.” (emphasis in original)
Two affidavits were received also from the trial counsel. The second one addressed those parts of the appellant’s second affidavit reproduced above.
Trial counsel responded to [36] of the appellant’s second affidavit by recording the date upon which he had received various materials and some information about the way in which he had prepared for the trial.91 He stated that he did not recall specifically what was discussed at the pre-trial conferences other than discussion of the Crown evidence and witness statements,92 but did not take issue with the exchange as remembered by the appellant.
He accepted that something like the exchange recorded by the appellant in [37] of his second affidavit had occurred.93
His response to [38] to [42] was as follows:94
“12. Paragraph 38: I cannot recall an approach from the Applicant to me regarding the issue stated. If a particular matter was raised with me by a client in the course of trial, and I thought it was material and of forensic assistance, then my normal practice is that I would cross-examine the relevant witness about that matter.
Paragraph 39: I agree that the Applicant said to me that he wished to give evidence, and I said that was my very strong view and believe that he should not do so. I refer to and rely upon paragraph 29 of my 5 September 2019 Retainer where I strongly advised the Applicant not to give evidence at trial.
Paragraph 40: I disagree with the assertion from the Applicant. My 5 September 2019 Retainer95 provided written advice from me to the Applicant and constituted his instructions to me. I did not receive any further written instructions from the Applicant during the course of the trial. I did receive various oral instructions from the Applicant during the course of trial relating to matters such as, but I cannot now recall the detail of what these instructions were at the time, and I did not commit these instructions to writing, nor ask the Applicant to confirm any such instructions in writing to me.
Paragraphs 41 and 42: I do not have any recollection of any detailed discussion with the Applicant about the contents of the ASIC record of interview with the Applicant. I do recall a conversation with the Applicant where the ASIC record of interview was discussed in general terms. I specifically recall the Applicant saying to me (words to the effect) as to why he participated in the interview, and he said to me that he had nothing to hide and that he was trying to be cooperative with the ASIC investigators when he participated in that interview. That was the extent of the verbal instructions the Applicant gave me in relation to the ASIC record of interview.
I do not recall any other conversations I had with the Applicant regarding his ASIC record of interview.”
“20. Instructions during trial: I received various oral instructions from the Applicant during trial, sometimes during adjournments, and sometimes during the hearing of evidence. I did not reduce any of these instructions to writing. I remember the Applicant gave me written notes and occasionally some sticky post-its with pointers about questions to ask Crown witnesses, but I do not have these documents in my possession any longer.”
Applicable principles
In a “trilogy” of cases,98 the High Court considered the principles that apply when criminal defendants, convicted after a trial, appeal that conviction on the basis that their legal representatives were incompetent. In such a case, although the alleged incompetence will be scrutinised by the Court of Appeal, the “relevant rubric”99 is whether there has been a miscarriage of justice.100
There are different ways in which that can happen. Counsel may have done something for which there is no rational explanation, and that act or omission may have had an effect on the outcome of the trial.101 If the appellant has, as a result, lost a fairly open chance of an acquittal, there will have been a miscarriage of justice.102
The application of this “consequentialist approach is clear enough”.103 As a matter of principle, an argument made under this heading may be defeated by reference to the strength of the Crown case.104 This is because if a conviction was inevitable, then irrespective of the way in which counsel conducted the trial, it will not be open to aver that a miscarriage of justice has occurred – the outcome would have been the same.
Another potential source of miscarriage was identified by McHugh J in TKWJ v The Queen.105 His Honour observed that the conduct of counsel, of itself, might be such as to deprive an accused of a fair trial according to law.106 Without limiting the circumstances in which this might happen, his Honour gave examples of the way in which counsel’s conduct might deprive an accused of the trial to which he or she was entitled.107 In such a case, it:108
“cannot be right to insist that the appeal can succeed only if the court thinks that Counsel’s conduct might have affected the verdict… No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, whether the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.”
That is, a miscarriage of justice does not necessarily need to be demonstrated to the outcome of a trial, it may be sourced to the trial process itself.
The distinction between an “outcome-based” and “process-based” miscarriage was considered by Gleeson CJ in Nudd v The Queen.109 His Honour allowed that “a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case”.110 His Honour endorsed the view that normally the focus of appellate review will be on the impact which the errors of counsel may have had on the trial, but allowed that “there may be rare cases in which counsel’s misbehaviour or ineptitude is so extreme as to constitute a denial of due process to the client”.111
Kirby J endorsed the opinion of McHugh J that, "for a criminal appeal to succeed on an argument of incompetent representation at trial, it is not a universal requirement that the accused must establish that the conduct complained of might have affected the result".112 His Honour wrote that, "[s]ometimes, rarely, the misbehaviour, errors or incompetence in the legal representation of an accused at trial may be so egregious, frequent or obvious as, without more, to amount to a miscarriage of justice".113
The other judgments delivered in Nudd v The Queen were concerned with the specific facts of that case; they did not deny the existence of this category of miscarriage.
In the appellant’s case, the conduct of the trial counsel occasioned an “outcome-based” miscarriage of justice. The convictions may have been obtained on a basis that the appellant could have been able to dispute, had he been represented adequately. The appeal should succeed on that basis. I am also prepared to hold that this is one of those exceptional cases in which the conduct of counsel fell so far short of that which is required of lawyers who practise in Queensland that a “process-based” miscarriage of justice has occurred.
“Outcome-based”
As revealed in the analysis performed above,114 the Crown encouraged the jury to focus their deliberations on the “sole issue” of dishonesty. They were encouraged to conclude that dishonesty was established in alternative ways. One of those was by reaching a conclusion that the appellant had not, in his dealings with the investors, ever mentioned even the concept of abalone,115 when the sole use to which their money was being put involved the production of just that mollusc. Alternative paths to a conclusion of guilt may have been available,116 but since the jury’s reasoning is undiscoverable, it has to be allowed that it is at least possible that the jury convicted on this basis. In fact, it is more than likely that they did – they explicitly were in effect invited to do so, and this method of proof involved following an easily accessible and unobstructed path. There was in reality no rational basis upon which the jury could have entertained any doubt about this issue – the investors’ evidence was unchallenged and uncontradicted.
It is now known that, had even rudimentary instructions been taken from the appellant, trial counsel would have had at least a basis upon which to challenge the witnesses when they asserted an absence of reference to abalone.117 Even if there was no contradictory evidence on the issue, it was at least theoretically possible that cross-examination about it might have sown some seeds of doubt. Properly advised by counsel who had taken instructions and understood the nature of the case being made against his client, the appellant could also have given evidence contradicting the investors on this point. Depending upon the jury’s assessment of this, it might have created a relevant and reasonable doubt.
The appellant did not, however, have any realistic opportunity to present a defence, and his counsel was the reason for that. There was no rational basis upon which any lawyer could have conducted this trial without first taking detailed instructions from their client. That process might have presented a challenge for a barrister taking a direct brief,118 but to do so remained, unmistakably, his obligation. Without doing so, there was no proper way in which the appellant could have been advised about his options. There was no way in which witnesses could have been subjected to relevant cross-examination. There was no way in which the appellant could have been called, even if he had wanted to give evidence, as he now – his willingness unchallenged – swears that he wished to do.
“Process-based”
The criminal trial is a “moving practical exercise”.123 Within that exercise, there is infinite potential for distraction, complication and aggravation. As a vessel for human behaviour, it is a crucible in which extreme temperatures may be reached. The “exercise” demands choices from all involved. Options may not present in black or white; they can involve many shades of grey. Working through those options can be exhausting. The demands are searching, and the most experienced of judges and lawyers can make quite unfathomable mistakes. Examples can be located in even a cursory review of appellate decisions from any era.
In the modern era, when anyone can access – from their home, or even from a prison – more legal information than was ever housed in a single library building, disaffected litigants form an increasingly burdensome aspect of legal practice. They can be expected to revisit their cases with energy of the kind generated by a perception of injustice. This translates into a high level of scrutiny accompanied by a readiness to identify the existence of options other than those exercised, and a willingness to conclude that the course in fact taken was the cause of a conviction.
Acceptance of these realities underpins the jurisprudence which has developed in this context.
It explains the reason for insistence that a miscarriage will be difficult to establish if the impugned conduct is, when viewed objectively, a rational choice made out of a number of reasonable options.
However, both that principle and the proposition that, “[a]s a general rule, counsel’s decisions bind the client”,124 are underpinned by the assumption that lawyers have met accreditation requirements that impose basic standards of professional competence.125 Everything written in the “trilogy” and the associated jurisprudence is predicated on the supposition that every qualified legal practitioner must be expected at least to meet those basic standards. They were not met in this case.
It is not accepted practice at the Queensland Bar, when acting for a client charged with a serious criminal offence, to conduct a trial without first obtaining a proper statement from the person accused. The great dangers in omitting to do so were identified in Nudd v The Queen:126
“This is because only in the detailed understanding of the evidence may a defence, based on fact or law, appear to the trained eye of diligent legal representatives.”
It may be possible to contemplate a situation in which a trial might be conducted without such a statement,127 but this trial was not such a case. As noted above, it involved a vast amount of material and a multi-dimensional prosecution case. That case demanded proof of dishonesty, which means that meaningful advice about defending the charges could have been given only if the actual behaviour of the appellant was documented with precision.
The trial counsel’s failure to discharge this elementary duty is likely to have informed:(a)his failure properly to understand, and advise the appellant about the nature of the case that was being made against him;(b)his conduct of the defence on the “risk and reward” basis, which was never going to be an answer to the prosecution case as run, particularly when “the sole issue” was said to be dishonesty;(c)his failure to cross-examine witnesses in a way that might have raised doubt about at least some aspects of the Crown case;128 and(d)his failure at least to revisit the advice that the appellant should not give evidence, which was advice given prior even to knowing what that evidence might have been.
The case against the appellant appears very strong. It seems to present minimal opportunity for any counsel to score a forensic triumph.129 However, the appellant was entitled to defend it and, having retained a barrister, to do so on the basis of meaningful legal advice and without the encumbrance of the failures identified in [103] (a) – (d) above.
This trial was always going to be lengthy and difficult. Instead of obtaining a meaningful proof of evidence, a directly briefed counsel took his client’s instructions on Post-it notes that were then discarded.130 I would expect that any institution charged with the responsibility of enforcing accreditation requirements would refuse to bestow a legal qualification on a candidate who even suggested that it was permissible to accept payment for conducting a trial in this way. Counsel for the respondent, whilst not explicitly conceding a “process-based” miscarriage, agreed that the absence of a written proof of evidence was, in the circumstances, evidence of incompetence.131 Ms McDonald SC also allowed that someone in the position of the appellant was entitled to receive the sort of legal advice that he did not get.
Ground 2
“The trial judge's summing up failed to identify the relevant aspects of the appellant's knowledge on which the prosecution case on dishonesty was based. It is submitted that neither the prosecutor nor Counsel for the appellant sought such a direction.”
“[u]ltimately… an error occurred wherein the trial judge did not identify and instruct the jury about the relevant aspects of the appellant's knowledge belief or intent on which the prosecution case of dishonesty was based.”
It can be inferred that the appellant was endeavouring to formulate a ground arising from exchanges that occurred in the hearing on 3 June 2021. There is a concern that the directions given to the jury did not explain adequately that which was necessary for the jury to find before they could reach the requisite conclusion about the appellant’s dishonesty.
The direction given about the nature of the offences themselves is reproduced at [63]–[65] above.
It was accurate as far as it goes, but it did not go far enough. It was modelled on a direction contained in the Bench Book, but nothing relieves a trial judge from the obligation identified in Peters v The Queen (‘Peters**’**),136 namely that:137
“In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest.” (footnotes omitted)
Clearly that did not happen in the passage quoted. Since the appeal must succeed, and there must be a retrial at which the evidence may not be identical, no useful purpose is now achieved by providing a prescriptive analysis of the way in which the summing up fell short of that which was required in the circumstances. Nor is it necessary to consider in detail the respondent’s argument to the effect that, by stringing together an assortment of passages picked and chosen from different parts of the summing up, the requisite effect was accomplished. It is sufficient to observe that in a case like this, the summing up must meet explicitly the requirements identified in Peters. That means any explanation of the Crown case by the trial judge must involve addressing the accused’s state of mind – specifically, the knowledge, intention or belief said to be dishonest – as at the time of each act that is a particular of each count.138
However, given the way in which it was drafted, I did not feel it was appropriate to allow the appeal on this ground. However, I agreed with all that was written by Bond JA in R v Mirotsos139 and in broad terms agree with the further observations made by Fraser and Bond JJA at [16] – [17].
Ground 4
In the course of argument before us, the appellant’s counsel adopted140 Fraser JA’s interpretation of this ground as meaning “that in the absence of the appropriate particulars [and a direction] upon which… Counts 1 to 6 were put to the jury… there was a failure in the process… [meaning the] Court is not required to do an independent assessment of the evidence to determine whether the evidence is capable of supporting a verdict”.141
Again, no oral argument was advanced in support of this ground.142 In writing, it was submitted that:143
“…given that the jury were to make a finding of guilt pertaining to the evidence before the Court, it seems that it would be impossible to have found the appellant guilty on each count when the counts comprised of multiple transactions, based on separate evidence.”
As drafted, the ground is unarguable, and the assertion contained in it is incorrect. The concepts raised in the written argument are, however, problematic for the Crown.
Counts 1 to 4, whilst each prosecuted as a single charge, each averred a compendium of more than one “detriment” to more than one person. These detriments were caused by more than one type of “dishonesty” – as noted,144 they were alleged to have been committed by “two different methods”. That is, each of these counts was in fact made up by a number of separate offences.
Section 568(3) of the Criminal Code authorises the drafting of an indictment in that form and it is not “impossible” for a verdict of guilty to be returned on such a count. However, s 568(3) says nothing that would otherwise removes the reasons which underpin the basic requirement in a given case that each offence should be charged in a separate count.145 Those reasons include the needs for an accused to be informed as to the precise meaning of a verdict,146 for certainty about jury unanimity, and for sentencing to proceed upon a basis about which there can be no debate.
Sometimes those ends can be achieved by reference to the content of the summing up and the unmistakable effect of the verdicts. Sometimes it may assist, if necessary to achieve those ends, for alternative verdicts to be left open, or for special verdicts to be taken.147 None of that happened in this case.
In fact, when the verdicts were taken, the short form of each count on the indictment was read out by the associate.148 For example:149
“ASSOCIATE: Do you find the accused, Ben Jayaweera, guilty or not guilty of count 1, fraud of more than $30,000?
SPEAKER: Guilty.
ASSOCIATE: Guilty, your Honour. So says your speaker, so say you all.
JURY: Yes.”
That is, the jury was asked only if they were satisfied that the appellant was guilty of an offence of fraud involving more than $30,000.
It follows that in all cases, except count 5, it is not possible150 from the verdicts to know whether the jury was unanimous about either the detriment (which could have been caused by one or more of the transactions that went to make up each count) or the dishonesty that caused it. For example, the verdict (as read) on count 1 might have meant that the jury were satisfied that there had been dishonest application of $200,000, $680,000, $275,000 or $478,041.73,151 some combination of those transactions, or all of them. In the absence of a statutory provision such as s 229B(4)(c) of the Criminal Code, this is problematic. The precise meaning of these verdicts is therefore unascertainable.
These problems may well have provided another basis on which the appeal should have been allowed. Once again, however, given the way in which the ground has been drafted, it is not open to give effect to that concern.
Inability to apply the proviso in s 668E of the Criminal Code
Section 668E of the Criminal Code provides that an appeal can be dismissed even if a ground of appeal is made out, if the Court “considers that no substantial miscarriage of justice has actually occurred”.152 As already noted, the case against the appellant appears strong. However, the statutory proviso cannot be engaged.
I have already recorded my view regarding the shortcomings in counsel’s conduct of the trial. He failed to take proper instructions from his client and to cross-examine witnesses. That means that it is impossible to assess the real strength of the Crown case. The “process based” defect went to the root of the proceedings, which lessens the relevance of any suggestion that the result might have been inevitable.153 The trial was defective in ways that deny the application of the proviso.154
It would also be inappropriate to dismiss the appeal on this basis when, so it seems, the trial was afflicted by other defects which present on the face of the record. One of those was the problem at which the abandoned Ground 3 hinted.
As noted at [33] above, the Crown asserted similarity between the offences charged, but allowed that there were some differences.
Her Honour then instructed the jury that:155
“Remember, there are separate charges here. You must consider there are separate charges here. You must consider each of those charges separately, evaluat[ing] the evidence relating to that particular charge to decide whether you’re satisfied beyond reasonable doubt that the prosecution has proved its essential elements. You must return separate verdicts for each of the charges.
The evidence in relation to the separate offences is different so your verdicts need not be the same. You must reach… a verdict on the evidence and only on the evidence.”
This was the extent of the directions given about the relationship between the counts. The jury were not told anything about the way in which evidence admissible to prove one count might be used in proof of another. They were not warned that it was only if certain criteria were met that a conclusion of guilt on one count could be used to conclude guilt about others, nor that it would be impermissible to engage in any form of propensity reasoning.
In the circumstances, I am of the view that some direction along these lines was required.156 Specifically, there is a concern that the jury may have used a forbidden chain of reasoning in reaching its verdict. As McHugh J observed in BRS v The Queen,157 criminal courts take it as axiomatic that, where the evidence reveals the criminal convictions or propensity of the accused, there is a real risk that the jury will reason towards guilt by using the conviction or propensity.158 There was need for a clear direction to the jury as to the use that they could make of a conclusion about guilt on one count, or, given the way the charges were drafted, on even a component of a count.
They had to be told that they could not, on the basis of that finding, conclude that the appellant was the type of person who was likely to commit offences of the kind with which he was charged, and short circuit their deliberations by the application of any such reasoning.
Another problem is reflected in a direction which might have affected the way in which the jury viewed such exculpatory evidence as was placed before them. This concern relates to the way in which the jury were instructed about the use to be made of the appellant’s “voluntary interview”.
The relevant direction appears at [62] above.159 It was apt to mislead. The jury did not have to “accept” the things said by the appellant, nor was their attention to be confined to answers which indicated his “innocence”. An instruction that reflected the onus of proof would have directed the jury to consider whether there was anything in the interview that suggested a reasonable doubt about the appellant’s guilt.
To my mind, it is possible that the inadequacy of these directions might, in combination with the concerns raised in [118]–[123] above, have compelled a conclusion that there has been a substantial miscarriage of justice. At the very least, they confirm that it is impossible in the circumstances to certify, even when allowing the apparent strength of the Crown case, that there has not. These therefore amount to additional reasons why the proviso cannot apply, as do the observations made by Fraser and Bond JJA at [19] – [20]. Since there must be a retrial, it is not necessary to give any consideration to the application for leave to appeal against sentence, which should be dismissed.
Proposed Orders
For each of the six counts on which the appellant was convicted: appeal allowed;conviction quashed; andretrial ordered.
Application for leave to appeal against sentence dismissed.
Obviously, there could be many other ways in which a case of dishonesty could be presented. ↩
R v Mirotsos [2022] QCA 76 per Bond JA at [29] (Sofronoff P and Callaghan J agreeing). ↩
Representative passages appeared at Appeal Record (AR) at 120.45-121.15, 123.41-124.17 and 127.4-128.2. It is unnecessary to set them out because what was critical was what was missing from the directions. ↩
Exhibit 51. ↩
AR at 18.29-34, 19.3, 19.32-40, 20.45-47, 21.11-21 and 37.26-38.19. ↩
AR at 65.12-66.7, 78.11-15, 80.33-39 and 113.40-114.35. ↩
Orreal v The Queen (2021) 96 ALJR 78 per Kiefel CJ and Keane J at [20] and per Gordon, Steward and Gleeson JJ at [41]. ↩
Ibid*.* ↩
Affidavit of B P Satiu, filed 10 November 2021, Exhibit BPS-1 at 1. ↩
Affidavit of B Jayaweera, filed 3 June 2021, at 3 [12]. ↩
Ibid at 3 [9]-[10]. ↩
Ibid at 3 [11]-[12]. ↩
R
Jayaweera [2022] QCA 103
(2005) 79 ALJR 662
(1997) 191 CLR 275
(1955) 93 CLR 493
(2006) 80 ALJR 614
(2021) 96 ALJR 78
(1998) 192 CLR 493
(2002) 212 CLR 124
(2005) 224 CLR 300
(2006) 225 ALR 161
(2005) 214 ALR 1
(2005) 223 ALR 662
For each of the six counts, the appeal was allowed, the conviction quashed and a retrial ordered. The application for leave to appeal against sentence was dismissed ([21]–[22], [135]).
It does not follow from the fact that someone makes a misrepresentation to another person which causes them to suffer a pecuniary detriment that the person making the misrepresentation has been dishonest. It is a truism that misrepresentations can be made innocently or negligently, but not necessarily dishonestly. Nor does it follow from the fact that an agent has made an unauthorised transfer from a principal’s account, that the agent has done so dishonestly. It is also a truism that agents may honestly exceed the bounds of their authority. An additional ingredient is required to show that conduct which might have been done honestly was in fact done dishonestly. In a case of the present nature, that which could make the conduct dishonest is that when the accused did the acts which were said to be causative of the pecuniary detriment (namely when he made the misrepresentations or made the unauthorised transfers):(a)he had a particular state of knowledge, belief or intent (for example, that he knew of the falsity of a fact that he had represented or that he knew that he was not authorised to invest monies in a particular way1); and(b)because he conducted himself with that state of knowledge, belief or intent, his conduct was dishonest by the standards of ordinary honest people.
It is not uncommon in cases of this nature, and it was the case here, that there was no direct evidence of the relevant state of the accused’s knowledge, belief or intent, and the Crown had to invite the jury to reach the requisite conclusion by an inference from all the circumstances that it proved, that inference being reached according to the criminal standard. But it is critical that the Crown states clearly what its case is in that respect so that the trial judge may direct the jury according to the law, and not leave the jury in the position of making some sort of inquiry at large as to what it was that made conduct dishonest.
Thus, in R v Mirotsos,2 the Court of Appeal recently observed (citing Peters v The Queen (1998) 192 CLR 493 at [15]–[18]; R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56 at [48]; R v Lyons [2021] QCA 136 at [5]–[6], [19] and [136]; and R v Davidson [2022] QCA 22 at [11]–[14]):
For those reasons, the directions which the trial judge gave on the element of dishonesty were inadequate and occasioned a miscarriage of justice.
The Crown invoked reliance on the proviso. By reference to a detailed evidence matrix, the Crown invited this Court to form the view that no substantial miscarriage of justice had actually occurred. But in order to reach that view this Court would have to be able to assess for itself that the evidence properly admitted at trial established guilt to the requisite standard, as was recently re-emphasised by the High Court in Orreal v The Queen.7
The High Court also made clear in Orreal v The Queen that there are cases where the nature of the errors made would prevent an appellate court from being able to conduct that assessment, including cases which turn on issues of contested credibility and cases in which a wrong direction has been given on an element of liability in issue.8 This was such a case. The inadequate directions were given on an element of liability in issue, namely that of dishonesty. The fact that the jury returned guilty verdicts would have to be discarded from the appellate court's assessment of the whole record of trial, because of that fact, and also because of the global approach which the Crown took to the presentation of the evidence in the case. Then, the natural limitations which exist in the case of an appellate proceeding conducted wholly on the record would prevent this Court from carrying out the relevant assessment.
For each of the six counts on which the appellant was convicted, the orders which should be made are:(a)appeal allowed;(b)conviction quashed; and(c)retrial ordered.
In light of those orders, the application for leave to appeal against the sentences imposed should be dismissed.
CALLAGHAN J: The appellant was convicted, after a trial, of six offences against s 408C(1)(e) of the Criminal Code 1899 (Qld). He appeals against his conviction on grounds that are best considered after reviewing the course of proceedings.
The respondent Crown proposed the following “executive summary” of the case against the appellant:9
In these circumstances, a conclusion that there has been an “outcome-based” miscarriage of justice is inevitable. It is reached with some misgivings. That is because the appellant’s account of events, as revealed in the affidavit placed before us, is bald and two-dimensional. There is nothing which suggests that it will translate into convincing evidence.
However, the appellant’s affidavits were admitted into evidence before us without objection and he was not required for cross-examination.121 It is easy to contemplate the difficulty he might have encountered had he been subjected to that process, but in its absence his material must be taken at face value. This means that the court does not have “the capacity justly to assess the strength of the case against the appellant”,122 since the prosecution’s case against him has at least in part now been answered in a way that we are unable to discount for any legitimate forensic reason. In these circumstances, and notwithstanding the fact that the prosecution case may prove to be overwhelming, it cannot at present be denied that a miscarriage of justice occurred.
This finding as to miscarriage is not affected by the notion that counsel has a discretion about the way in which a case can be conducted – the course adopted was, simply, not an acceptable option. In the particular circumstances of this case, I am of the view that the conduct of the appellant’s case was inconsistent with the notion of a fair trial according to law, and for that reason there has been a miscarriage of justice.
Ibid at 3 [11]. ↩
Affidavit of trial counsel, filed 28 May 2021, Exhibit SCF – 3 at [5]. ↩
Ibid at [12]-[13]. ↩
Transcript of the Hearing on 19 November 2021 at 1-9 to 1-11. The barrister had received some documents from the appellant in February 2019 during a conference, however there was no itemisation of the documents produced: see Transcript of the Hearing on 19 November 2021 at 1-17. ↩
Affidavit of trial counsel, filed 28 May 2021, Exhibit SCF – 3 at [27]-[29]. ↩
Ibid Exhibit SCF–3. ↩
AR volume 1 at 18. ↩
Ibid 37. ↩
Ibid 38. ↩
AR volume 3 at 754. ↩
AR volume 4 at 1218. ↩
AR volume 3 at 754, 755. ↩
Ibid 755-767, 776. ↩
Ibid 780-781. ↩
AR volume 2 at 489, 645, 735-736. ↩
Ibid 498. See also AR volume 2 at 662-664. ↩
Ibid 491, 505, 510, 514, 520, 651, 678, 684. ↩
Ibid 528, 651, 685, 690. ↩
Ibid 223-224. ↩
Ibid 224. ↩
Ibid 305. ↩
Ibid 234, 238. ↩
Ibid 381. ↩
Ibid 387. ↩
Ibid 378-379. See also Mr Zalewski’s evidence at AR volume 2 at 476. ↩
AR volume 2 at 379. ↩
Ibid 599-600. ↩
Ibid 601-602. ↩
Ibid 593-594, 602. ↩
Ibid 600. ↩
AR volume 3 at 828-829, 926-928. ↩
Ibid 830, 929. ↩
Ibid 842, 939-940. ↩
Ibid 844. ↩
AR volume 22 at 11,728. ↩
Ibid 11,730, 11,779. ↩
The only questions about aquaculture projects asked by the trial counsel were regarding whether the investors had read the information memorandum and statement of advice provided by the appellant that referred to potential investment in such projects. The trial counsel did not explicitly put the version of facts now sworn by the appellant to the investors. ↩
AR volume 2 at 281, 285, 287, 342, 346, 605; AR volume 3 at 805-806, 809. As discussed in AR volume 1 at 47-49, 56-58, 63. ↩
AR volume 4 at 1454. See also AR volume 4 at 1417. ↩
AR volume 4 at 1560. See also AR volume 4 at pges 1218, 1349, 1579; AR volume 5 at 1772. Similar information at AR volume 5 at 2027, 2066. ↩
This paragraph was included in an email from the appellant to an investor in order to “promote” the fund to overseas investors. See AR volume 4 at 1570. ↩
AR volume 2 at 282. ↩
AR volume 2 at 345-346. ↩
AR volume 5 at 1800, 1805; AR volume 6 at 2349-2350, 2538, 2545, 2597, 2599-2603. ↩
(1893) 6 R 67 at 70, 76. See AR volume 2 at 328-330. ↩
AR volume 2 at 329. ↩
Ibid 332-333. ↩
AR volume 1 at 44. ↩
Ibid. ↩
Ibid 48-53, 56, 58. ↩
These accounts were where the investors’ funds were initially invested, after which they would be moved to the self-managed superannuation funds. See AR volume 5 at 1774. ↩
AR volume 1 at 64. ↩
AR volume 4 at 1349, 1454-1463, 1559-1560, 1570, 1579-1580. ↩
AR volume 4 at 1349, 1454-1463, 1559-1560, 1570, 1579-1580. See discussion in Transcript of the Hearing on 19 November 2021 at 1-25. ↩
Ibid 91. ↩
Ibid 113. ↩
Ibid 114. ↩
Ibid 65. ↩
Ibid. ↩
Ibid 120 (emphasis added). ↩
Ibid at 120-121. ↩
AR volume 1 at 140. See also Transcript of the Hearing on 19 November 2021 at 1-25 to 1-26. ↩
AR volume 1 at 123. ↩
Ibid 140. ↩
The notice included an application for leave to appeal against sentence; in light of the orders which should be made, no consideration has been given to this application. ↩
Outline of Argument of the Applicant, filed 10 May 2021. ↩
Affidavit of trial counsel, filed 8 October 2021. See also Affidavit of trial counsel, filed 28 May 2021. ↩
Transcript of the Hearing on 3 June 2021. ↩
See below at [103]–[105]. ↩
Transcript of the Hearing on 19 November 2021 at 1-4. ↩
Amended Notice of Appeal, filed 24 September 2021, at 3. ↩
Transcript of the Hearing on 19 November 2021 at 1-6 to 1-7. ↩
Affidavit of B Jayaweera, filed 3 June 2021, at 4-5 [14]-[19]. ↩
Affidavit of B Jayaweera, filed 24 September 2021, at 6 [33]. ↩
Ibid 10 [52]. ↩
Ibid. ↩
Ibid 16 [92]. ↩
Ibid 8-9 [36]-[42]. ↩
Affidavit of trial counsel, filed 11 October 2021, at 2-3 [5]-[9]. The appellant’s counsel indicated that consideration had been given to whether the trial should be adjourned, but after consulting with the appellant – who wished for the trial to proceed – he had concluded that the two weeks before the scheduled commencement would be sufficient time for him to prepare for the trial (Affidavit of trial counsel, filed 11 October 2021, at 4 [18]). ↩
Affidavit of trial counsel, filed 11 October 2021, at 2 [6]. ↩
Ibid 3 [11], referring to Affidavit of trial counsel, filed 28 May 2021, at 6-7 [29]-[31]. ↩
Affidavit of trial counsel, filed 11 October 2021, at 3-4 [12]-[16]. ↩
See [8] above. ↩
Affidavit of trial counsel, filed 11 October 2021, at 4 [17]. ↩
Ibid 4 [20]. ↩
Kirby J in Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at 173 [39], referring to TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1; Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161. ↩
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at 166 [12] (Gleeson CJ). ↩
Criminal Code (Qld) s 668E; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at 134 [31] (Gaudron J) and 144 [75]-[76] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 at 6 [18] (Hayne J); Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at 166 [12] (Gleeson CJ). ↩
Ibid 169 [19] (Gleeson CJ). ↩
Ibid 163 [6] (Gleeson CJ), citing Mraz v The Queen (1955) 93 CLR 493 at 514 (Fullagar J). ↩
Ibid 184 [86] (Kirby J). ↩
Ibid 163 [6] (Gleeson CJ). ↩
[2002] HCA 46; (2002) 212 CLR 124. ↩
Ibid 148 [76] (McHugh J). ↩
Ibid. ↩
Ibid. ↩
[2006] HCA 9; (2006) 225 ALR 161 at 162-165 [3]-[9] (Gleeson CJ). ↩
Ibid 163 [6] (Gleeson CJ). ↩
Ibid 169 [19] (Gleeson CJ). ↩
Ibid 185 [87] (Kirby J). ↩
Ibid 187 [100] (Kirby J). ↩
See above at [33] and [60]. ↩
AR volume 1 at 65, 70. ↩
Ibid 87-89, 114. ↩
See discussion above at [49]–[54]. ↩
The case serves as an illustration of the folly that might be involved in counsel accepting a brief of any complexity on such a basis. ↩
Transcript of the Hearing on 19 November 2021 at 1-7. ↩
Affidavit of Ben Jayaweera, filed 23 September 2021, at 8 [39]. See [76] above. ↩
Transcript of the Hearing on 19 November 2021 at 1-7. ↩
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at 163 [6]. ↩
R v W [1998] QCA 90 at [584] (Thomas J). ↩
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at 164 [9] (Gleeson CJ). ↩
Ibid 166 [11]. ↩
[2006] HCA 9; (2006) 225 ALR 161 at 176 [50] (Kirby J). ↩
In any case where a positive defence might be mounted, it does not seem conceivable. Even in a case where the instructions are to put the Crown to proof, observance of “basic standards” will mandate recording the making of that decision. ↩
See discussion above at [91]-[95]. ↩
Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 at 7 [25] (Hayne J) and 19 [85] (Callinan & Heydon JJ). ↩
Affidavit of trial counsel, filed 11 October 2021, at 4 [20]. See [81] above. ↩
Transcript of the Hearing on 3 June 2021 at 1-19. See also Transcript of the Hearing on 19 November 2021 at 1-22. ↩
Transcript of the Hearing on 19 November 2021 at 1-20. ↩
Transcript of the Hearing on 19 November 2021 at 1-14. ↩
Applicant’s Outline of Argument, filed 26 October 2021, at 6 [20]. ↩
Ibid 7 [25]. ↩
[1998] HCA 7; (1998) 192 CLR 493. ↩
Ibid 504 [18] (Toohey and Gaudron JJ). ↩
Ibid. ↩
R v Mirotsos [2022] QCA 76. ↩
With apparent gratitude. ↩
Transcript of the Hearing on 19 November 2021 at 1-5. ↩
Ibid 1-14. ↩
Applicant’s Outline of Argument, filed 26 October 2021, at 8 [32]. ↩
See [24] above. ↩
Criminal Code 1899 (Qld) s 567(3). ↩
So as to avoid any subsequent suggestion of autrefois convict or acquit. ↩
Criminal Code 1899 (Qld) s 624. ↩
AR volume 3 at 1090-1091. ↩
Ibid 1090. ↩
As it may have been even if the associate had read the whole of the charge itself, including the sum defrauded. ↩
Respondent’s Evidence Matrix filed 19 November 2021, at 1. ↩
Criminal Code 1899 (Qld) s 668E(1A). ↩
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at 185 [87]. Cf Weiss v The Queen [2005] HCA 81; (2005) 223 ALR 662 at 675 [45]. ↩
Weiss v The Queen [2005] HCA 81; (2005) 223 ALR 662 at 675 [45]. ↩
AR volume 1 at 116. ↩
Queensland Supreme and District Court Benchbook No. 34 may have provided some guidance as to the form of direction given. ↩
[1997] HCA 47; (1997) 191 CLR 275. ↩
Ibid 308. ↩
See also AR volume 1 at 120. The direction given was taken from the Benchbook. ↩