R v Mirotsos [2022] QCA 76

COUNSEL: M J Copley QC for the appellant/applicant / S J Farnden and E J Coker for the respondent

SOLICITORS: Russo Lawyers for the appellant/applicant / Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P: I agree with the reasons of Bond JA and the orders proposed by his Honour.

2. BOND JA:

Introduction

3. In March 2021, the appellant faced a jury trial in the District Court on an indictment which contained 36 counts of fraud.

4. The charges arose out of the activities of a private property development company called Koolmoon Developments Pty Ltd (Koolmoon) in 2014 to 2016. Although the appellant was a solicitor in private practice, he was also both a director and shareholder of Koolmoon and heavily involved in the conduct of its business. Mr Cassell and Mr White were, for much of the time, also shareholders and directors of Koolmoon.

5. The Crown case at trial was that in the course of conducting the business of Koolmoon the appellant, as director, dishonestly applied company money to his own use or dishonestly gained or attempted to gain company money for himself.

6. At trial 14 of the 36 counts fell away, as follows:

(a)during the opening address the prosecutor announced that he did not intend to proceed further on counts 29, 31, 34 and 36 and the appellant was discharged on those counts;

(b)on the seventh day of the trial the prosecutor decided not to proceed further on counts 19, 22 to 28 and 35 and the appellant was discharged on those counts; and

(c)the jury was directed to return a verdict of not guilty on count 30 and did so.

7. The jury rendered verdicts of not guilty in 11 counts (namely counts 5, 9 to 12, 14 to 18 and 21), each of which was a count of fraud as a director with a circumstance of aggravation.

8. The jury rendered verdicts of guilty in the remaining 11 counts as follows:

(a)counts 2, 4, 6 and 8, which were each counts of fraud with the circumstances of aggravation of being a director and where the value of the property exceeded $30,000;

(bcounts 1, 3, 7, 13, 20 and 33, which were each counts of fraud as a director; and

(c)count 32, which was a count of attempted fraud as a director where the value exceeded $30,000.

9. The appellant appealed against the convictions, advancing these three grounds of appeal:

(a)A miscarriage of justice occurred because the jury was not adequately instructed about the element of dishonesty.

(b)A miscarriage of justice occurred because the jury was erroneously directed that the evidence of Mr Cassell and Mr White was relevant to all the counts.

(c)The verdicts were unreasonable and cannot be supported having regard to the evidence.

10. Appeal ground 1 was advanced in relation to all of the counts. Essentially, the appellant contended in relation to each count that the trial judge had erred in failing to identify the knowledge, belief or intent which was said by the Crown to render the relevant impugned act dishonest and then in failing 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. For reasons which follow, that ground must be upheld in respect of all counts. At the least, the appellant would be entitled to orders that the convictions on those counts be set aside and that there be a new trial.

11. Appeal ground 2 was advanced in relation to count 33, in respect of which the appellant contended that the evidence of the two named witnesses was irrelevant to that count. For reasons which follow, that appeal ground fails.

12. Appeal ground 3 was advanced in relation to all of the counts except for counts 2 and 33. For reasons which follow, that appeal ground must be upheld in relation to counts 4 and 20, but fails in relation to the remaining counts.

13. The orders which should be made are:

(a)For counts 4 and 20: appeals allowed; convictions quashed; verdicts of acquittal entered.

(b)For counts 1, 2, 3, 6, 7, 8, 13, 32 and 33: appeals allowed; convictions quashed; retrials ordered.

14. The appellant also sought leave to appeal against the sentences, the lengthiest of which were for terms of four and a half years imprisonment suspended after 27 months served. The appellant suggested, and the respondent agreed, that the application for leave to appeal against the sentences would only be pursued in the event that the outcome of the appeal was that the Court allowed the appeal on ground 3 either wholly or in part. If that occurred, the appellant proposed that written submissions could be made about the appropriate sentences for counts 2 and 33 as the sentence of four and a half years imposed on count 2 was imposed in the context of convictions for all the other counts. However, because no guilty verdict will stand after those orders, it will not become necessary to receive argument in respect of the application for leave to appeal against the sentences.

The Crown case as particularised

15. The table below identifies each count on which a guilty verdict was obtained and the particulars which the Crown provided in respect of that count. I have identified by shading the way in which the Crown framed its case concerning dishonesty on each count.

Count Particulars

Count 1: Fraud, as a director / Section 408C(1)(a)(i) & (2)(a) Criminal Code / On the fourth day of July, 2014 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly applied to his own use a sum of money belonging to Koolmoon Developments Pty Ltd. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. On 4 July 2014 the defendant dishonestly used money belonging to the complainant company to pay an amount owing on a credit card account held by the defendant. He did this by transferring $10,000 held on trust for the complainant company in the Omega Lawyers Trust Account to the Mirotsos Platinum Credit Card Account. / This money was held on trust for the complainant company pursuant to an oral direction given by James Cassell to the defendant prior to the money being held on trust. / This was dishonest because the expenditure was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / (In relation to all counts in which this particular was advanced: “authorised by the complainant company” meant “authorised by express consent or implied consent through conduct”, and “a legitimate purpose of the complainant company” was “any one or more of the purchase of real property by and for the complainant company; the improvement and/or development of real property owned by the complainant company in any way, including but not limited to construction; the sale of real property owned by the complainant company; and the management and leasing of real property owned by the complainant company.”) / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud.

Count 2: Fraud, as a director, to the value of $30,000 or more / Section 408C(1)(a)(i) & (2)(a) & (2)(d) Criminal Code / On the fourteenth day of July, 2014 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly applied to his own use a sum of money belonging to Koolmoon Developments Pty Ltd. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. / And the property was of a value of more than $30,000, namely $40,000. On 14 July 2014 the defendant dishonestly used money belonging to the complainant company to facilitate payment to a client of Omega Lawyers, Jian Wei Sun. This client and payment were unrelated to the complainant company. He did this by transferring $40,000 from the Koolmoon Developments General Account to the Omega Lawyers Trust Account. / Jian Wei Sun had no involvement in, knowledge of or relationship with the complainant company. / This was dishonest because the expenditure was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud. / The value of the property exceeded $30,000.

Count 3: Fraud, as a director / Section 408C(1)(d) & (2)(a) Criminal Code / On the fourteenth day of July, 2014 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly gained a sum of money for himself. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. On 14 July 2014 the defendant dishonestly gained money belonging to the complainant company. He did this by transferring $5,000 from the Koolmoon Developments General Account to the Mirotsos Complete Access Account. / This was dishonest because the defendant was not entitled to this money because the transfer was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud.

Count 4: Fraud, as a director, to the value of $30,000 or more / 408C(1)(d) & (2)(a) & (2)(d) Criminal Code / On the seventh day of August, 2014 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly gained a sum of money for himself. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. / And the property was of a value of more than $30,000, namely $45,000. On 7 August 2014 the defendant dishonestly gained money belonging to the complainant company. He did this by transferring $45,000 from the Koolmoon Developments General Account to the Mirotsos Viridian Line of Credit Account. / This was dishonest because the defendant was not entitled to this money because the transfer was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud. / The value of the property exceeded $30,000.

Count 6: Fraud, as a director, to the value of $30,000 or more On 18 December 2014 the defendant dishonestly used money belonging to the complainant company to pay the balance of a novated lease. He did this by transferring $32,730.23 from the Koolmoon

Section 408C(1)(a)(i) & (2)(a) & (2)(d) Criminal Code / On the eighteenth day of December, 2014 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly applied to his own use a sum of money belonging to Koolmoon Developments Pty Ltd. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. / And the property was of a value of more than $30,000, namely $32,730.23. Developments General Account to the novated lease account with Macquarie Leasing. / This was dishonest because the expenditure was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud. / The value of the property exceeded $30,000.

Count 7: Fraud, as a director / Section 408C(1)(a)(i) & (2)(a) Criminal Code / On the seventh day of January, 2015 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly applied to his own use a sum of money belonging to Koolmoon Developments Pty Ltd. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. On 7 January 2015 the defendant dishonestly used money belonging to the complainant company to pay an amount owing on a home loan. He did this by transferring $13,000 from the Koolmoon Developments General Account to the Mirotsos Home Loan Account number 540065702. / This was dishonest because the expenditure was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud.

Count 8: Fraud, as a director, to the value of $30,000 or more / Section 408C(1)(d) & (2)(a) & (2)(d) Criminal Code / On the seventh day of January, 2015 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly gained a sum of money for himself. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. / And the property was of a value of more than $30,000, namely $50,000. On 7 January 2015 the defendant dishonestly gained money belonging to the complainant company. He did this by transferring $50,000 from the Koolmoon Developments General Account to the Mirotsos Smart Access Account. / This was dishonest because the defendant was not entitled to this money because the transfer was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud. / The value of the property exceeded $30,000.

Count 13: Fraud, as a director / Section 408C(1)(a)(i) & (2)(a) Criminal Code / On the twentieth day of May, 2015 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly applied to his own use a sum of money belonging to Koolmoon Developments Pty Ltd And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. On 20 May 2015 the defendant dishonestly used money belonging to the complainant company to pay for construction work performed at his house by a third party, RBF Corporation Pty Ltd trading as F&P Interiors. He did this by transferring $5,875 from the Koolmoon Developments General Account to the third party's account. / This was dishonest because the expenditure was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud.

Count 20: Fraud, as a director / Section 408C(1)(d) & (2)(a) Criminal Code / On the twentieth day of July, 2015 at Cairns in the State of Queensland, Anthony George Mirotsos dishonestly gained a sum of money for himself. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. On 20 July 2015 the defendant dishonestly gained money belonging to the complainant company. He did this by transferring $2,000 from the Koolmoon Developments General Account to the Mirotsos Viridian Line of Credit Account. / This was dishonest because the defendant was not entitled to this money because the transfer was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company. / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud.

Count 32: Attempted fraud, as a director, to the value of $30,000 or more / Section 408C(1)(c) & (2)(a) & (2)(d), 535, 536 Criminal Code / Between the tenth day of April, 2016 and the twenty-seventh day of April, 2016 at Cairns and elsewhere in the State of Queensland, Anthony George Mirotsos attempted to dishonestly induce MacGregor O'Reilly Solicitors to deliver a sum of money to him. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. / And the property was of a value of more than $30,000, namely $95,592.40. Between 10 April 2016 and 27 April 2016 the defendant dishonestly attempted to induce MacGregor O'Reilly Solicitors to deliver a sum of money to him. The total sum the defendant attempted to induce the transfer of was $95,592.40. / He did this by communicating to MacGregor O'Reilly Solicitors, directly and/or through Lee Cooper, that he was entitled to the sum of money and they were required to deliver it to him. / Any one or more of the following specific acts or omissions are relied upon by the Crown: / This document was headed “RE: Loan Breakdown”. The defendant provided this correspondence to another party, or had another person provide this correspondence. / This document was headed “RE: Creditor Payments”. The defendant provided this correspondence to another party, or had another person provide this correspondence. / The document was headed “RE: Payment Instructions”. The defendant provided this correspondence to another party, or had another person provide this correspondence. / In relation to any of the above emails, if the defendant directed Lee Cooper to send the email such direction was given orally shortly before the email was sent. / This was dishonest because the defendant was not entitled to the money he requested them to deliver, and he misrepresented to them, directly and/or through others, that he was so entitled. / At the time of the offence the defendant was a director of the complainant company and the money the defendant was attempting to have delivered to him had been loaned to the complainant company, who would have remained liable to repayment of that money. / The value of the property the defendant attempted to have delivered to him exceeded $30,000.

Count 33: Fraud, as a director / Section 408C(1)(d) & (2)(a) Criminal Code / Between the fifth day of May, 2016 and the first day of July, 2016 at Cairns and elsewhere in the State of Queensland, Anthony George Mirotsos dishonestly gained a sum of money for himself. / And Anthony George Mirotsos was a director of Koolmoon Developments Pty Ltd. Between 5 May 2016 and 1 July 2016 the defendant dishonestly gained money belonging to the complainant company. The total amount gained was $8,090. He did this by arranging for a third party, Rodney Wilson, to overcharge the complainant company for services provided and/or charge them for services not provided. The defendant was paid by Rodney Wilson an amount of the overpayment in cash. / Rodney Wilson prepared a handwritten itemised invoice addressed to Koolmoon Developments. The total amount on this invoice was $46,491. The final four entries on this invoice were added at the defendant s direction and represent the amount overcharged. The total combined amount for these entries is $14,146. / Rodney Wilson paid the defendant an amount of the overpayment on two occasions. The first occasion was on 18 May 2016. The defendant directed Wilson to make this payment on 13 May 2016. The defendant received $4,000 on this occasion. The second occasion was on or about 30 June 2016. The defendant directed Wilson to make this payment on or about 19 June 2016. The defendant received $4,090 on this occasion. / This was dishonest because the defendant knew the complainant company was being overcharged for r goods and services and/or charged for goods and services which weren't provided and arranged fo them to be paid on behalf of the complainant company in order to receive the overpayment / At the time of the offence the defendant was a director of the complainant company and the complainant company was the victim of the fraud.

Preliminary observations concerning authorisation and purpose

16. The evidence revealed that: (a)The date of commencement of the registration of Koolmoon as a company under the Corporations Act 2001 was 30 May 2014. (b)As at the date of registration, the share capital of Koolmoon was divided into 120 fully paid ordinary shares. Mr Cassell and Mr White each held 40 of those shares. Velos Family Investments Pty Ltd, which was a corporate vehicle controlled by the appellant, held the other 40 shares. (c)That state of ownership continued until about 1 July 2016, when Mr Cassell’s father acquired Mr White’s shares and also those held by the appellant’s corporate vehicle. Mr Cassell’s father paid the appellant $110,000 for the shares. He gave evidence that the price paid to Mr White was notionally the same, but reduced to $75,000 because Mr White had previously received some monies. (d)During the period from 30 May 2014 to 14 July 2015 (when Mr White ceased to be a director), the three directors of Koolmoon were the appellant, Mr Cassell and Mr White. This is the period applicable to counts 1, 2, 3, 4, 6, 7, 8, and 13. (e)During the period from 14 July 2015 to 30 November 2015 (when Mr Cassell ceased to be a director), the two directors of Koolmoon were the appellant and Mr Cassell. This is the period applicable to count 20. (f)During the period from 30 November 2015 to 1 July 2016 (when the appellant ceased to be a director and was replaced by Mr Cassell’s father) the appellant was the sole director of Koolmoon. This is the period applicable to counts 32 and 33.

17. It is evident from the particulars that it loomed large on the Crown case to establish that particular conduct by the appellant was not authorised by Koolmoon “by express consent or implied consent through conduct”¹, and, further or alternatively that that particular conduct by the appellant could not be regarded as for a legitimate purpose of Koolmoon, because it was not conduct for one or more of four specified purposes.

18. But Koolmoon was a company registered under the Corporations Act, not a natural person. The appellant was one of its directors. Important matters of company law govern how a company may either confer authority on or constrain the authority of one of its directors to deal with company funds. No directions were given to the jury on these matters.

19. As a matter of law, Koolmoon had the legal capacity and all the powers of an individual: s 124(1) of the Corporations Act. If Koolmoon had a constitution, the constitution could have contained an express restriction or a prohibition of the company’s exercise of any of its powers: s 125 of the Corporations Act. However, the Crown did not seek to prove that Koolmoon had ever adopted a constitution in one of the ways provided in s 136 of the Corporations Act, or at all.² Absent such evidence, the requisite assumption was that Koolmoon had the legal capacity and all the powers of an individual, and that its ability to exercise power was not the subject of any constraint that power be exercised only towards a particular purpose or object (whether the four purposes mentioned in the particulars or any others).

20. As a matter of law, the internal management of Koolmoon could have been governed by the provisions of the Corporations Act which applied to it as replaceable rules, or by a constitution or by a combination of both: s 134 of the Corporations Act. As there was no evidence of the content of any constitution adopted by Koolmoon, there was there no evidence that the replaceable rules had been displaced or modified pursuant to s 135 of the Corporations Act. Absent such evidence, the requisite assumption was that the internal management of Koolmoon was governed by the replaceable rules without any particular constraint imposed by a constitution.

21. On that basis, the powers of the directors of Koolmoon were governed by the replaceable rule specified in s 198A of the Corporations Act, with the result that the business of the company was to be managed by or under the direction of the directors and the directors could exercise all of the powers of the company except any which were required to be exercised by the company in general meeting. It is unnecessary to explore the breadth of that exception. On that basis, the powers of the directors of Koolmoon to manage the business of the company were not the subject of any constraint that they be exercised only towards a particular purpose or object (whether the four purposes mentioned in the particulars or any others).

22. But that power or authority is given to the directors as a whole. It does not follow that each director may by himself exercise the powers given to the directors as a whole. More would be required for an individual director to have such power. Pursuant to s 198D of the Corporations Act: (a)unless the constitution provides otherwise, the directors of a company may delegate any of their powers to a committee of directors; one director; a company employee; or any other person; (b)the delegate must exercise the powers delegated in accordance with any directions of the directors; and (c)the exercise of power by the delegate is as effective as if the directors had exercised it.

23. It follows that, by delegation, the directors of Koolmoon as a whole could have authorised one of their number (for example, the appellant) to deal with the management of the business of the company, and the delegate would have been obliged to do so in accordance with any directions of the directors, including any limitations placed on that authority. The powers of the directors as a whole could not be exercised by one director on his own unless the director was the sole director or unless the directors as a whole had expressly or impliedly authorised him so to do.

24. Even though, in the absence of a constitution, the powers of Koolmoon (and the powers of the directors as a whole) might be regarded as not the subject of any constraint that power be exercised only towards a particular purpose or object, the directors could have imposed such a constraint on their delegate. They could, for example, have expressly or impliedly limited the authority conferred on their delegate in some way, for example, by requiring that their delegate only expend company monies on particular purposes (for example, the four purposes mentioned in the particulars).

25. It follows that, where the particulars refer to conduct of the appellant not being authorised by Koolmoon by its express consent or its implied consent through conduct, they must be referring to conduct of Koolmoon by its directors and must be suggesting either Koolmoon by its directors had made no express or implied delegation of power to the appellant at all, or that the appellant’s conduct was outside the bounds of such express or implied delegation as had been made. And when the particulars suggest that a particular exercise of power was not for a legitimate purpose of Koolmoon because it was not for one or more of the four specified purposes, they must be suggesting that in some way a purpose constraint was introduced to govern what might otherwise have been an authorised exercise of power.

Appeal Ground 1

26. Appeal ground 1 was advanced in relation to all counts, but as appears from the ways in which the dishonesty case was particularised, it is necessary to consider it separately in relation to:

(a)counts 1, 2, 3, 4, 6, 7, 8, 13 and 20;

(b)count 32; and

(c)count 33.

Counts 1, 2, 3, 4, 6, 7, 8, 13 and 20

27. The bases on which dishonesty was advanced for counts 1, 2, 3, 4, 6, 7, 8, 13 and 20 were in essentially the same form. Having regard to the definitions set out in the particulars, the case advanced was that the relevant expenditure or transfer of money by the appellant was dishonest because: (a)it was not authorised by Koolmoon by express consent or implied consent through conduct; and/or (b)it was not for a legitimate purpose because it was not for any one or more of the following purposes: the purchase of real property by and for Koolmoon; the improvement and/or development of real property owned by Koolmoon in any way, including but not limited to construction; the sale of real property owned by Koolmoon; and the management and leasing of real property owned by Koolmoon.

28. Before this Court, the Crown argued that its case concerning dishonesty was that the appellant knew that the transactions were either unauthorised or that they were not for a legitimate purpose of the company. However, the Crown did not frame its case in that way at trial. The particulars did not suggest that it formed part of the Crown case at trial to suggest that dishonesty was established by reference to what the Crown alleged and proved was the appellant’s state of knowledge, belief or intent as to whether the expenditure was authorised by Koolmon or as to the legitimacy of the purpose of the expenditure. No such suggestion was made when the case was opened by the Crown. Nor was any such suggestion made in closing argument by the Crown.

29. 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.³

30. The critical general direction on dishonesty was advanced in a way as to be applicable to counts 1, 2, 3, 4, 6, 7, 8, 13 and 20. It was in these terms:⁴

“The second thing, and what I think is going to be the real issue for you, is that the Prosecution must prove that the action that the defendant performed was done dishonestly. To prove that the defendant acted dishonestly, the Prosecution must prove that what he did was dishonest by the standards of ordinary honest people. Remember I said to you a few minutes ago, your task here is not just to decide what happened – to decide the facts. Largely the facts are not in dispute about the essential ingredients about whether money was applied or obtained, or a benefit was gained. But you must make a judgment whether that is dishonest, and this is the test for it. The Prosecution must prove that what the defendant did was dishonest by the standards of ordinary honest people.

That means you are applying that standard. I do not suggest that any of you is not an ordinary honest person, but just to be clear, it is not about applying your own personal view about what is honest and dishonest. It is applying your collective understanding of what is honest by the standards of ordinary honest people. Okay. I only say that in case an argument develops where one of you thinks, well, that is not dishonest, and the other one of you thinks it is. It is not just about what you personally think. It is about you, on behalf of the community, applying a test to the facts as you find them. Usually what that will require is understanding or finding what facts or belief, or circumstances, the defendant was aware of. Once you have established for yourselves what the defendant was aware of, then you apply the test. Well, if he was aware of that and he did this, is that dishonest according to the standards of ordinary honest people? That is really the formulation. That is why I said to you, you have to find certain facts, and then you also have to exercise a judgment.”

31. That direction refers only in a general way to the need for the jury to understand or to find what facts or belief or circumstances the defendant was aware of, and having done that, to apply the test of whether the defendant was dishonest according to the standards of ordinary honest people. But that was inadequate. It was for the Crown to articulate its case on that subject matter and to prove that case beyond reasonable doubt. Then it was for the trial judge to direct the jury in the manner referred to at [29](a) and [29](b) above. It was not for the jury to be left in a state of making some sort of inquiry at large on the issue of the appellant’s state of knowledge, belief or intent.

32. Further, in this case the appellant did give evidence and did articulate an answer to each charge, which explained why he thought what he was doing was proper, according to the exigencies which existed at the time of the conduct in question. In its closing argument the Crown invited the jury to evaluate the evidence, first, by considering and then rejecting the appellant’s evidence, and, second, by looking at all the other evidence to reach the conclusion that guilt had been proven beyond reasonable doubt. It is notable that it did not form part of the Crown case to suggest that the appellant had told lies which could be relied on as showing that he was guilty. Given that the appellant’s evidence was the only direct evidence as to his state of mind, and the judge had not directed the jury in the manner referred to at [29](a) and [29](b) above, there was a significant risk that the jury might reject the appellant’s evidence and then return to the assessment of the evidence they did accept without asking themselves whether that evidence proved the requisite dishonest state of mind to the criminal standard. In my view the inadequate directions about the element of dishonesty meant that this risk was not properly addressed.

33. Three passages of the directions should be referenced.

34. First, the general direction not to leap from a rejection of the appellant’s evidence to a conclusion of guilt in these terms:⁵

“So where, as here, the defendant has given evidence, one of three possibilities can follow. You might think the Defence is – the Defence evidence is credible and reliable, and it is a good answer to all of the charges, in which case you would find him not guilty. You might think that although the Defence evidence is not entirely convincing, it leaves you in a state of reasonable doubt about what the true position was for any particular transaction. If so, your verdict is likely to be not guilty, because you will be in a state of reasonable doubt. And also, finally, you might think that the defendant’s evidence should be not accepted. [B]ut even if you think that, be careful not to jump from that view to an automatic conclusion of guilt.

If you do not accept the defendant’s evidence, you go back to the Prosecution material and ask yourself whether, on such material in there as you do accept, are you satisfied beyond reasonable doubt of guilt. That is especially so in a case like this one, because members of the jury, your exercise is a little different from some other jury trials, because it is – requires you to find facts to work out what happened in each particular case, but also to exercise a judgment, and that is what I am going to talk to you about now. Because as I said to right at the start of the trial, and it seems to me, that the real issue in each charge is going to be whether the accused acted dishonestly.”

35. Second, the direction about the approach to be taken to a circumstantial case concerning dishonesty:⁶

“Now, there is evidence primarily, as I understand it, from Mr Mirotsos, that things change, and before you could be satisfied beyond a reasonable doubt that Mr Mirotsos acted dishonestly on a particular occasion, where the Crown says the dishonesty was because money was used for a purpose that was not a legitimate company purpose, or where it was used without authorisation, you would have to first be satisfied – excuse me – about what was a legitimate company purpose at that stage, or what were the means of authorisation. But another way to put that is what I said to you earlier. You look at: what did the accused understand or believe, what was he aware of at the time. There is direct evidence about what was a company purpose and who was to be paid from Prosecution witnesses. The Crown relies on that as a foundation for the charges. But if, in your considerations, you reach a point where you think, well, things have changed by now, we have to decide whether the accused was dishonest according to, perhaps, changed rules.

Well, that does add another layer, because it requires you to really infer what was a legitimate company purpose, or a method or authorisation. Although, the accused – this really comes from Mr Mirotsos’ evidence – and the Prosecution has broadly conceded, as I will come to, that if you do not reject his evidence, you are likely to have to acquit him. Anyway, the point I am getting to is this: [i]n the sense that I have just tried to describe, you may come to the view that the Prosecution case about what was a legitimate purpose or a method of authorisation is a circumstantial case, in the sense that things have changed, and you now have to infer what was the position. As a matter of logic, you have to understand what the position was before you could decide whether Mr Mirotsos did something dishonest, compared to the position.

And so, in relation to legitimate purpose and authorisation, if it is a circumstantial case, you would have to, as I said, be satisfied not only that guilt is a rational inference, but that it is the only rational inference that could be drawn from the circumstances, and that any reasonable possibility consistent with innocence would lead you to find that the Prosecution cannot exclude would lead you to find the accused not guilty.”

36. Finally, the concluding and clarifying further direction concerning circumstantial evidence:⁷

“I gave you a direction before about circumstantial evidence, and drawing an inference as to matters like the legitimate purposes of the company and what arrangements there might be for authorising payments. I think a better way to approach that is if you take up your copy of the particulars document, if you brought it in with you, and on the front page, you will see that there are some definitions. ‘Authorised by the complainant company’ means authorised by the complainant company – sorry – means authorised by express consent or implied consent through conduct.

And legitimate purposes, at the bottom of the first page – to include any one or more of four things: purchase of real property by and for the company; improvement and/or development of any real property by and for the company – sorry – owned by the complainant company in any way, including but not limited to construction; sale of real property owned by the complainant company; and management and leasing of real property owned by the complainant company. So you understand that the proposition that the Crown puts to you is that the dishonesty involved in each charge is that the use of the money or the gaining of the benefit, etcetera, was dishonest, because the use was not for a legitimate company purpose, or was not unauthorised.

So I would like to clarify that the process of authorisation or the legitimate purposes are set out in this document, and in order for you to understand what was the process of authorisation or a legitimate purpose, you need to infer from all of the evidence what they were from all of the facts – from all of the evidence, including evidence of discussions and any other evidence that gives rise to an inference about what were the arrangements – what were the arrangements for authority of payment, and what were the legitimate purposes of the company. So it is in that setting that I remind you of the direction I gave you about circumstantial evidence. The finding that you would need to make to convict the defendant of a charge where this is a relevant consideration, is that his use of the money or his gaining of the money was not authorised by, as it says, express consent or implied consent through conduct, or was not a legitimate purpose of the company.

So you have to make that finding that it was not authorised and not a legitimate purpose, beyond reasonable doubt, before you could convict, because you must make that finding by way of inference. It is necessary to keep in mind that guilt – that conclusion, that inference, should not only be a rational inference, but it should be the only rational inference to be drawn from the circumstances, so that if there remains a possibility – reasonable possibility consistent with innocence, you would find the accused not guilty.”

37. The directions cannot be faulted insofar as they made very plain that if the jury rejected the appellant’s evidence, their duty was to set it aside and go back and evaluate the evidence which they did accept. But in my view, the failure to explain to the jury that the Crown had to prove beyond reasonable doubt that the appellant had a particular identified state of mind in relation to the impugned conduct, left unaddressed the risk to which I have referred at [32] above. The jury might have thought that all it had to be satisfied of was that, objectively, the conduct concerned was not authorised or not for one of the four specified purposes. That would have been insufficient. This provides further support for the conclusion that the inadequate directions on the element of dishonesty occasioned a miscarriage of justice.

38. For the foregoing reasons, I am satisfied that a miscarriage of justice occurred in relation to counts 1, 2, 3, 4, 6, 7, 8, 13 and 20 because the jury was not adequately instructed about the element of dishonesty.

Count 32

39. The element of dishonesty was advanced in a different way in relation to count 32. Notably at the time concerned, the appellant was the sole director of Koolmoon.

40. A solicitors’ firm was acting for a lender to Koolmoon and was holding money on trust to be provided to Koolmoon in accordance with the terms of the lending arrangement between the firm’s client and Koolmoon. The count concerned an alleged attempt by the appellant to dishonestly persuade that firm to transfer $95,592.40 of that money to the appellant. This was said to be dishonest because the defendant was not entitled to the money he requested the firm to deliver, and he misrepresented to the firm, directly and/or through others, that he was so entitled. Obviously neither proposition necessarily carried with it an allegation that the appellant had a particular state of knowledge, information or belief concerning the impugned conduct.

41. The relevant specific direction given by the trial judge was:⁸

“Here, particularly taking into account Mr Mirotsos’ evidence himself, it is a matter for you, but it seems clear that Mr Mirotsos intended to induce the payment to himself of the amount of money. He was asking for the money and asserting the reason why he should be paid. But two issues might arise: first, did he do an overt act to carry out his intention? He only admits sending one of the emails himself – writing it himself. And second, and the real issue, I think, is, did he intend to commit an offence? The issue becomes, did he intend to act dishonestly? The defendant’s intent is a central issue in this charge. And no one can look inside his head. He has given you direct evidence about what he intended, which was to have money that he says he was entitled to returned to him. So his direct evidence is not consistent with an intent to act dishonestly.

You will need to examine the evidence and ask yourselves whether it is proved beyond reasonable doubt that the defendant intended to dishonestly induce the delivery of money. As I said, he says he believed the company owed him money, and as to the amount, he took advice from the bookkeeper. He was therefore without any dishonest intent, and he is not guilty. The Prosecution says he was himself the source – the ultimate source of the MYOB record, and he was aware it was inaccurate. And, in fact, I will come back to it later, but Mr Coker points to a specific amount, which he argues the defendant must have been aware was inaccurate if counted as an amount that the company owed him. So the argument goes, his intention was dishonest and he acted in an overt way, but he failed. The money was not paid, and that is why the charge is an ‘attempt’. The Prosecution must prove its case beyond reasonable doubt. The defendant does not have to prove that he is not guilty, and if the evidence leaves you in a state of reasonable doubt, you will find him not guilty.”

42. Counsel for the appellant contended, and I agree, that although there is some reference to the jury needing to consider something about the appellant’s intent, the directions do not comply with both of the requirements referred to in [29] above. The result of the direction quoted at [30] was that the jury was left to make some sort of inquiry at large on the issue of the appellant’s state of mind. And quite apart from that, the point made at [32] to [37] above applies equally in relation to count 32. Accordingly, I reach the same conclusion concerning miscarriage of justice.

Count 33

43. Count 33 concerned an alleged kickback arrangement said to have been struck between the appellant and Mr Wilson. As was the case in relation to count 32, at the time concerned the appellant was the sole director of Koolmoon.

44. The Crown case was that the appellant had arranged for Mr Wilson to overcharge Koolmoon for goods and services and/or charge for goods and services which weren’t provided and arranged for Mr Wilson to pay him an amount of the overpayment in cash. The total amount said to have been overcharged was $14,146 out of a total amount of $46,491 invoiced by Mr Wilson on 6 May 2016. The Crown case was that the appellant arranged for Mr Wilson to pay to him in cash $8,090 of the overpayment.

45. At first blush, this count fell into a different category to previous counts against which appeal ground 1 has been raised. The Crown case as particularised did specifically assert a specific state of knowledge, information or belief concerning the impugned conduct, namely that the appellant knew Koolmoon was being overcharged for goods and services and/or charged for goods and services which weren't provided and arranged for them to be paid on behalf of Koolmoon in order to receive the overpayment. Indeed, when the case was opened, counsel for the Crown stated that:

“It was agreed between the defendant and Wilson, when they were doing this, that upon receipt of payment, that is, upon Wilson receiving payment, he would pay the defendant the money quoted for the extra work that wasn’t actually going to happen, the overpayment, those four items at the end of the invoice that weren’t actually needed.”

46. However, the Crown evidence did not come out in the way particularised or as opened. Critically, the invoice was not an invoice at all, it was a quotation. And the evidence did not support the suggestion that the items which constituted the overcharged items were not actually needed for the job.

47. Mr Wilson said that during discussions with the appellant in 2016 in which he quoted his rates for doing various types of work, he put together a quote for work on a scrap piece of paper. He then put what was on the scrap paper into final form by preparing a handwritten invoice dated 6 May 2016 for “supplying [and] apply[ing] tiling and waterproofing” for a total amount of $46,491 and giving that to the appellant. That document was exhibit 8. The discussions with the appellant had been a week or two before the document was produced.

48. Mr Wilson’s evidence was that thirteen of sixteen items in the invoice were for his labour for waterproofing various roof, balcony and wet areas; bedding wet area floors; tiling wet area floors and walls; tilling wet area skirting; and sealing internal and external control joints. The other three items were for items of supply totalling $8,626, namely supply wall and floor tiles ($7,106), supply skirting tiles ($320) and all-terrain lift hire ($1200). He said that he normally didn’t supply tiles. But he said that the appellant asked him to allow for those three items and told him what amount to allow for them.

49. Mr Wilson said that at the time of making the arrangement there was discussion with the appellant about how he would be paid. It was that he would be paid in stages, not in one lump sum for the full amount of the quote. He said that was what he would expect. He was happy with that because he expected that he would be given some money as a deposit and he could use that to buy materials to start the job. At that time the arrangement was made, there were no other discussions with him about what would happen after he was paid. When later asked by the trial judge to explain the arrangement, he said that but for events which happened after the arrangement was made, his expectation would have been that he would have to take care of the supply items, because they had been allowed for in the job.

50. Mr Wilson’s evidence was that he received two payments in respect of the work the subject of the invoice, which did not total the full amount of the invoice. He was not sure how much he was paid in total, but the total figure of $30,000 came to mind. He thought the first payment might have been a couple of weeks after the date of the quote. Bank documentation was roughly confirmatory of that evidence because it showed that two cheques each for $15,497 were paid to him, the first on 13 May 2016 and the second on 21 June 2016.

51. Within a day or two of Mr Wilson receiving the first payment, he had a conversation with the appellant about giving the appellant a portion of that first payment (which Mr Wilson referred to as a deposit). That was the first time that subject matter was discussed. He said the appellant just told him to give him three or four thousand out of the payment. He was not sure of the amounts, but believed the amount requested was around the $4,000 mark out of a total first payment of around the $15,000 mark. He gave the appellant the money because he assumed that the appellant was going to use the money for the supply items (Mr Wilson referred to them as “extras”) which the appellant had asked him to allow for on the quotation. He gave the appellant the money in cash within a day or two of when he had received the first payment.

52. He received a second payment of roughly the same amount of money. He could not remember when he received the second payment. He said on that second occasion he gave the appellant “Exact figure, 4200 and something, I think, was the figure I was asked to give, less $150 that I was asked to give to the plasterer out of that.” He did not recall how the second occasion came about, but he said his understanding was the appellant would use the money for the extras. He did recall that:

“The second time, my brother drove me up to the top of Kuranda. Sorry. I met [the appellant] on the Kuranda Range, if that’s what it’s called. From memory, you go through the [indistinct] and you get up the top. My brother drove me there in his car. I hopped out of the car and I gave it to him in an envelope.”

53. He received some documentation from the appellant after he gave the appellant the first payment, in the form of a tax invoice from Koolmoon addressed to him dated 18 May 2016, for “Consulting services” in the amount of $3,636.36, plus GST claiming a balance due of $4,000. He said he had not received consulting services from Koolmoon and the first payment was not for that purpose. He said that the second payment which he made to the appellant was not for consulting services from Koolmoon.

54. The evidence was not clear as to what part of the quoted work was actually performed by Mr Wilson, although it was clear that some part had been performed by him. His evidence supported the conclusion that some of the supply items were supplied albeit not by him because he acknowledged that the appellant provided him with material for joint sealing and he accepted that the all-terrain lift was on site. However, he said no wall or floor tiles or skirting tiles were on site, so it would seem to follow that he could not have performed that part of the work which had quoted for tiling.

55. Two directions were given specifically in relation to that count 33: (a)First:⁹

“Count 33 is one of dishonestly gaining money belonging to the company. The amount is $8,090, the Prosecution case being that he did this by arranging for Mr Wilson to overcharge the complainant company and then get that money back from Wilson. And the – Mr Mirotsos’ evidence about that is that he had lent Wilson money and also paid him for work that he was doing on the site, and paid another worker who was doing work with him; also that he had paid for waterproofing products and for the hire of the scissor lift, and on that basis was owed money back by Mr Wilson.”

(b)Second, in the course of summarising the Crown argument:¹⁰

“As to count 33, you were referred to the ANZ trace documents. You were shown two cheques that were paid in identical amounts, but on different days: $15,497 paid on the 13th of May and on the 21st of June 2016 to Mr Wilson by the solicitor, MacGregor O'Reilly, who at this stage, were administering the loan funds. You would accept, it was argued, that Wilson was a fair and reliable witness. He was never going to supply the extras. His evidence was, he thought the defendant must be purchasing them with this money that he was giving the defendant back. There was, from his point of view, no other explanation for why he was giving this money back.

There was, of course, no evidence of tiles being purchased, and I think, in fact, Mr Mirotsos said, no, that stage had not been reached. I have taken you through Mr Mirostsos’ answer to this anyway. The Prosecution argument is that you would be satisfied beyond reasonable doubt that Mr Mirotsos had Wilson add items to Wilson’s document so that he could get money out – so that that amount in the invoice would be paid by MacGregor O'Reilly. And that way, that Mr Mirotsos could dishonestly get back money, which was not – which he was not entitled to, and use it for his own use, and so you would be confident to convict of count 33.”

56. These directions were not adequate. Although the document on which the Crown relied looked like it was an invoice for goods and services already supplied, the Crown evidence was that Mr Wilson at least intended it would operate as a quotation. It was given before Mr Wilson had provided the goods or services mentioned in it. On Mr Wilson’s evidence, the arrangement contemplated that Mr Wilson would be paid at least to some extent in advance, so that he could be put in funds to obtain requisite materials for the purpose of his work. The fact that the arrangement looked to future performance rendered it necessary to focus on the appellant’s knowledge, belief or intent as at the time the arrangement was struck concerning whether the three supply items were intended to be provided in the future by anyone at all and also on what was the appellant’s purpose in arranging payment in advance to Mr Wilson and arranging for a return to him of some of those monies. Was it for the purpose of the appellant being placed in funds for paying for some of the supply items mentioned on the quote, or for some other but dishonest purpose?

57. Accordingly, it was just as important for this count as it was for other counts, that the trial judge direct the jury in the manner referred to at [29](a) and [29](b) above and not leave the jury in a state of making some sort of inquiry at large on the issue of the appellant’s state of mind. And quite apart from that, the point made at [32] to [37] above applies equally in relation to count 33. Accordingly, I reach the same conclusion concerning miscarriage of justice.

Application of the proviso

58. The respondent advanced a submission that even if the Court was persuaded that there was an error in the directions given as to dishonesty, this would be an appropriate case to apply the proviso.

59. I reject that submission. An appellate court must be able to assess for itself that the evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred.¹¹ In this case, the critical issue was whether the Crown had excluded all reasonable hypotheses inconsistent with guilt, and those hypotheses all concerned something about the appellant’s state of mind. Moreover, the credibility and reliability of the evidence concerning discussions between the directors and of the explanations posited by the appellant were vital issues for the jury in this case. But this Court has the disadvantage of not having heard the evidence of the witnesses touching upon those subjects. Not having done so, and particularly where the critical issue involved an assessment of whether the Crown had proved to the criminal standard the appellant’s state of knowledge about particular facts, I form the view that I would be unable to discharge that task.¹²

Appeal ground 2

60. This appeal ground related only to count 33. The trial judge had directed the jury that the evidence of Mr Cassell and Mr White was relevant to all the counts. The appellant alleged that the direction was erroneous and occasioned a miscarriage of justice.

61. As the quashing of the conviction and ordering a retrial in relation to count 33 is justified having regard to appeal ground 1, it is unnecessary to consider this ground further. However out of an abundance of caution, I will deal with it.

62. The impugned direction was in these terms:¹³

“When I said some of the evidence is relevant to all counts, I am thinking of the evidence of – for example, Mr Cassell and Mr White – as to – this is my term – as to what ground rules were for the arrangement. The Prosecution relies on their evidence as to, in effect, an agreement among the directors about who would do what and whether anyone would be paid, and on what basis, because it is against that that the Crown asks you to assess each act. So in that sense, there is some evidence relevant to all charges. But, of course – I am telling you things that are obvious – each charge is based on a different transaction, and the charges are not all the same. There are some different types of charge. One relates to paying out a car’s lease. The other, count 32, which we have just discussed, is the attempt to get money back from the – from a loan. Count 33 is a different sort of charge, too, relating to the dealings with Mr Wilson. So there is any number of reasons why I say you must look at the evidence on each charge and decide whether you are satisfied of guilt for that charge, and your verdicts might be different.”

63. The evidence on the Crown case concerning the dealings with Mr Wilson in relation to count 33 is identified at [43] to [54] above. The evidence of Messrs Cassell and White as to the ground rules for the “arrangement” is summarised at [83] to [94] below.

64. The appellant argued that count 33 depended on the evidence of Mr Wilson and the dealings between he and the appellant in 2016. At that time the appellant was the only director of Koolmoon. The argument was that if the appellant’s conduct was dishonest, it had nothing to do with the ground rules struck between Mr Cassell, Mr White and the appellant in 2014. It was then said that the misdirection may have affected the verdict on count 33 because the jury may have been more inclined to accept Mr Wilson’s evidence if they thought it was supported by the evidence of Mr Cassell and Mr White.

65. The respondent noted that at trial the Crown had accepted that the evidence of Mr Cassell and Mr White “really” applied to every count except count 32 and 33.¹⁴ The respondent submitted, and I agree, that the effect of the concession was to convey the fact that circumstances changed in the company over the period of offending. However, that did not mean that the specific evidence referred to by his Honour was not relevant to all charges to frame the context under which the later offences occurred. The effect of the respondent’s argument was that, assessed in context, the trial judge was only directing the jury that the evidence of Mr Cassell and Mr White was relevant to frame the context under which the later offences occurred and involved no error.

66. In my view the respondent’s submissions must be accepted. It was obvious from the terms of the direction that, so far as it related to count 33, the direction was that the evidence of Mr Cassell and Mr White was merely background against which to assess subsequent conduct. Even in the impugned direction the trial judge told the jury that count 33 was a different sort of charge and related to the dealings with Mr Wilson. I reject the submission that the direction was erroneous.

Appeal ground 3

67. The appellant contended that, except for counts 2 and 33, the verdicts were unreasonable and could not be supported having regard to the evidence. Although my reasons in relation to appeal ground 1 would justify orders for retrial in relation to all counts in relation to which appeal ground 3 is advanced, it is necessary to consider this ground separately because it would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction.¹⁵ Success on appeal ground 3 in relation to any count would lead to an order quashing the conviction on the count and entering a verdict of acquittal.

The principles to be applied

68. The principles governing this ground of appeal may be summarised as follows:¹⁶ It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported: see M v The Queen (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ; Zaburoni v The Queen (2016) 256 CLR 482 at [56] per Gageler J; and GAX v The Queen (2017) 91 ALJR 698 at [25] per Bell, Gageler, Nettle and Gordon JJ.An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand: see M v The Queen at 492–493; and SKA v The Queen (2011) 243 CLR 400 at [14] per French CJ, Gummow and Kiefel JJ.The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of act to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence): see SKA v The Queen at [22] and [24].An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open: see Fennell v The Queen (2019) 93 ALJR 1219 at [82] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ; and Coughlan v The Queen (2020) 267 CLR 654 at [55] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ.The appellate court’s task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction: see Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ; M v The Queen at 492–493; and SKA v The Queen at [20].The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, “must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations”: M v The Queen at 493.

At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case where the jury has been subjected to the seductive effects of a species of identification evidence¹⁷ that has in the past led to miscarriages of justice: see Fennell v The Queen at [81].

If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act to set aside a verdict based upon that evidence: see M v The Queen at 494, quoted with approval in MFA v The Queen (2002) 213 CLR 606 at [56]; R v Nguyen (2010) 242 CLR 491 at [33]; and Filippou v The Queen (2015) 256 CLR 47 at [12].

The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen at 494–495. See also R v Hillier (2007) 228 CLR 618 at [20] per Gummow, Hayne and Crennan JJ; Fitzgerald v The Queen (2014) 88 ALJR 779 at [5] per Hayne, Crennan, Kiefel, Bell and Gageler JJ; and R v Baden-Clay (2016) 258 CLR 308 at [66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.

The setting aside of a tribunal of fact’s verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact: see R v BadenClay at [65]–[66].

The appellate court’s reasons must disclose its assessment of the capacity of the evidence to support the verdict: see SKA v The Queen at [22]–[24]; BCM v The Queen (2013) 88 ALJR 101 at [31] per Hayne, Crennan, Kiefel, Bell and Keane JJ; and GAX v The Queen at [25].

The nature and extent of the appellate court’s task, in a particular case, will be informed by: the elements of the offence;the accused’s defence;the issues in contest at the trial;the manner in which the trial was conducted;whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); andthe particulars of and the submissions made in support of the ground of appeal.

69. There was no dispute at trial that the relevant expenditures or transfers of money the subject of the various counts had in fact occurred. The contest was whether the Crown had proved its dishonesty case. The question whether, on the whole of the evidence, it was open to the jury to find that dishonesty had been proved to the criminal standard needs to be considered separately by reference to each count, although some evidence was applicable to multiple counts.

The scope of the Crown evidence addressing authority

70. Before this Court, the Crown argued that appeal ground 3 should fail because upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that (1) the appellant knew that the transactions were either unauthorised or that they were not for a legitimate purpose of the company,¹⁸ and (2) on that account, the conduct was dishonest by the standards or ordinary honest people.

71. Two matters are worth recapitulating.

72. First, the case concerning lack of authority and knowledge of lack of legitimacy of purpose was confined by the particulars. Having regard to the particulars, the Crown’s case must be that it was open to the jury to be satisfied beyond reasonable doubt that: (a)the appellant knew that relevant expenditure or transfer of money by him was not authorised by Koolmoon by express consent or implied consent through conduct; and/or (b)the appellant knew that relevant expenditure or transfer of money by him was not for a legitimate purpose because it was not for any one or more of the following purposes: the purchase of real property by and for Koolmoon; the improvement and/or development of real property owned by Koolmoon in any way, including but not limited to construction; the sale of real property owned by Koolmoon; the management and leasing of real property owned by Koolmoon, and, on that account, the conduct was dishonest by the standards or ordinary honest people.

73. Second, for the reasons set out at [16] to [24] above, where the particulars refer to conduct of the appellant not being authorised by Koolmoon by its express consent or its implied consent through conduct, they must be referring to conduct of Koolmoon by its directors and suggesting either Koolmoon by its directors had made no express or implied delegation of power to the appellant at all, or that the appellant’s conduct was outside the bounds of such express or implied delegation as had been made. And when the particulars suggest that a particular exercise of power was not for a legitimate purpose of Koolmoon because it was not for one or more of the four specified purposes, they must be suggesting that in some way a purpose constraint was introduced to govern what might otherwise have been an authorised exercise of power.

74. The Crown outlined in its opening before the jury the way it sought to prove what was the authority of the appellant: (a)The Crown stated that Koolmoon was created on 30 May 2014 and was then owned by three equal shareholders: Mr Cassell, Mr White and the appellant’s company, Velos. It said that all three were directors at the outset. (b)It suggested that the genesis of Koolmoon had been in discussions between Mr Cassell and the appellant concerning business ventures and in particular the purchase of land at Smithfield which could have a commercial building on it which could then be sold and the owners could split the profit. It suggested that Mr White was referred to as part of those initial discussions, and that he was going to be the builder. He would do the work not for free but for less than commercial rates. (c)Those three and a fourth man, Mr Young, signed a heads of agreement document on 27 May 2014, a few days before Koolmoon came into existence, and that document outlined in writing the role that each person would play and the purpose of the agreement. Mr Cassell would finance the project. Mr White would do the building and construction and the appellant would do the project management and legal work. The fourth man, Mr Young, had signed the document, but never became a shareholder and had no further involvement. (d)It was implicit in the Crown’s case as opened that the heads of agreement was thought to be part of the evidence demonstrating the Crown case as to the appellant’s lack of authority in relation to Koolmoon.

75. It remains to note that the Crown accepted at trial and also before this Court that it did not contend that it would be dishonest for the appellant to use company funds to reimburse himself for a company expense which he had personally paid.

The heads of agreement

76. The heads of agreement was a document dated 27 May 2014. It took the form of a contract between the appellant, Mr Cassell, Mr White and Mr Young. It had apparently been signed by each party. Koolmoon, not yet having been incorporated, was not a party.

77. Its recitals made clear that the parties contemplated that a series of formal contracts, including a shareholders’ agreement, would be entered into between them at some later stage but that until then the heads of agreement would prevail as a contract between them.

78. Clause 1 of the operative terms provided:

“1 HEADS OF AGREEMENT

(a)These Heads of Agreement constitutes an agreement in principle between the parties. This document is a binding contract, and is intended to be superseded by other formal contracts.

(b)In consideration for doing so, the parties agree that the costs and any disbursements of the preparation of the Contract will be borne equally by the parties to this Heads of Agreement out of the funds forming part of the Agreement.

(c)The Contract will include the terms set out below. It will also contain additional terms, but they will not be unusual or unreasonable.”

79. Clause 2 of the operative terms provided:

“2 TERMS OF CONTRACT

(a)[The appellant] will incorporate a company and unit trust, Koolmoon Property Development Pty Ltd ATF Koolmoon Investments Unit Trust, for the Parties for the purpose of purchasing land in Smithfield which will be zoned either commercial or industrial (Landholding Company) and / or for any other land development purpose including residential development;

(b)[The appellant] will incorporate another company and unit trust, names to be determined, for an operating business to lease from the Landholding Company (Operating Company), and will be entitled to occupy and operate a commercial business from the upstairs of the premises in Smithfield to give effect to the continuing operation of the Operating Company;

(c)The Parties agree that they will each be 25% shareholders in the Landholding Company and Operating Company and each will perform specific tasks, on terms to be agreed in the future, in recognition of their shareholding;

(d)The Parties agree that their shareholding can only be sold or transferred to the other Parties to this Agreement and not to any third party;

(e)[Mr Cassell] will fund all costs for the purchasing and development, including disbursements, and will receive for his security a mortgage on agreed terms to ensure that all costs James contributes are repaid by the development, income generated or from profits from either the business or the land. All costs subject to the mortgage will be Annexed from time to time, but must be signed by all Parties to have effect;

(f)[The appellant] will be responsible for all project management, regulatory requirements, ongoing commercial consultation and advice, including but not limited to legal representation through his firm Omega Lawyers Pty Ltd;

(g)[Mr White] will be responsible for the the building and construction of any development of the land and will co-ordinate the building and development through his companies Diehard Constructions Pty Ltd and Kurrimine Beach Concreting Services. All building costs incurred by Alf will be at discounted commercial rates to give effect to his 25% shareholding;

(h)The terms of this Agreement will remain strictly confidential and not to be [disclosed] to any third party except by operation of law.”

80. It may be observed of the heads of agreement that: (a)The reference to “the Contract” in cl 1 was a reference to the contemplated further formal contract or contracts between the parties. It would contain the terms in cl 2 and other terms, subject to the limitation that they not be unusual or unreasonable. (b)Clause 2 contemplated the appellant would incorporate of two companies and two unit trusts. (c)The first company as trustee for the first unit trust would be formed for “the purpose of purchasing land in Smithfield which will be zoned either commercial or industrial … and / or for any other land development purpose including residential development”. (d)The second company and unit trust would be an operating business which would lease premises from the first company to operate an unspecified commercial business from those premises. (e)Clause 2 contemplated the parties to the heads of agreement would be the shareholders of each company, each having a 25% share. Clause 2(c) provided that each of the parties would “perform specific tasks, on terms to be agreed in the future, in recognition of their shareholding”. (f)The role of Mr Cassell was to provide the finance. But cl 2 contemplated that the provision of the finance would be treated as a loan secured by a mortgage “on agreed terms”. The agreement on terms was something which the parties must be taken to have postponed to be dealt with in the contemplated formal future “Contract”, albeit that they had specified that that future contract would not contain unusual or unreasonable terms. Notably, there was no statement that Mr Cassell would be providing the money at no cost to the company (in terms of there being no obligation on the company to pay Mr Cassell interest on the monies provided). And, conversely, there was no statement that Mr Cassell would be entitled to interest. (g)The role of the appellant was set out in cl 2(f). But, as with Mr Cassell, the agreement did not specify that the appellant would perform that role at no cost to the company (in terms of there being no entitlement to his or his firm being paid anything for his or his firm’s time or costs). And, conversely, the agreement did not specify that the appellant would perform that role for payment. Given cl 2(c), the parties must be taken to have postponed the question of such remuneration to the contemplated “terms to be agreed in the future”, albeit that they had specified that their contemplated formal future “Contract” would not contain unusual or unreasonable terms. It must be noted, however, that the terms of the heads of agreement are not consistent with there having been an existing agreement between the parties that the appellant would be paid for the work he did. (h)It articulated what Mr White would do. But, unlike Mr Cassell and the appellant, it did specify that he would be paid building costs at discounted commercial rates.

81. I comment that in order for a pre-incorporation document of the nature of the heads of agreement to have any relevance to the way in which Koolmoon, by its directors, delegated power to the appellant there would have to be evidence connecting the heads of agreement up with the manner by which Koolmoon did in fact confer authority on (or confine the authority of) the appellant.

82. I comment also that the evidence was that the heads of agreement was not implemented strictly according to its terms: (a)Koolmoon was incorporated a few days after the heads of agreement, but it had a different name to the name of the first company which the heads of agreement contemplated. (b)There was no evidence that the Koolmoon Investments Unit Trust was ever created or that Koolmoon was ever appointed trustee of a unit trust. (c)Koolmoon had three shareholders each holding 33⅓ per cent of the issued share capital of the company, not four shareholders each holding 25 per cent of the issued share capital. Mr Young had no involvement. (d)There was no evidence of the incorporation of the contemplated operating company or of the creation of the unit trust which was to be associated with the operating company. (e)There was no evidence of the creation of the contemplated mortgage securing the terms on which Mr Cassell would be repaid the monies which he advanced. (f)There was no evidence that the parties ever produced the contemplated further “Contract”.

The evidence of Mr Cassell

83. The Crown called Mr Cassell.

84. The relevant parts of his evidence in chief were as follows: (a)He first met the appellant in the context of needing a lawyer to resolve his family law matter concerning his ex-wife. (b)The appellant solicited his involvement in an investment proposal “out at Smithfield in Koolmoon Street”. (c)He agreed to use the appellant for his family law matter, but initially advised he was not interested in the investment proposal. (d)The appellant kept pressing him to invest and after about a month of the appellant pressing him, he agreed to invest in the appellant’s project in late February, early March 2014. (e)He then identified what he recalled about the deal as at the time he agreed to invest in this passage of the transcript:

“All right. When you agreed to invest, up to that point had there been any discussion about – or any conversation with the defendant about the detail of what would happen with this investment?---That the building would be built at cost. There’d be no payment – there’d be a small payment to Alf White for beer money, as such, to cover him for costs, to – for living expenses during every week. Anthony was to do the paperwork, and that once the building was complete and sold at the end, then we would split up the profits.

All right?---But no – yeah.

No, sorry, what were you going to say?---At no time – at all times that the investment was to be in my name.

All right. What was your role proposed to be?---To invest the money.

All right. Did Mr Mirotsos say anything about what his role would be?--To do all the lawyer work, the paperwork.

And - - -?--- - - - involved with the - - - Did - - -?--- - - - setting up of the business.

And did Mr Mirotsos say anything about what Alf White’s – Alfred White’s role would be?---To build the building. At cost.

Beyond – something you just mentioned, you just mentioned for the proposal to split the profits after the building had been built?---Yes.

Was there any other discussion, apart from that, about – and I should say, you also mentioned Alf White getting paid beer money [indistinct] was the term you used?---Yep.

Beside the splitting of profits and beer money for Alf White, do you remember if there was any discussion with Mr Mirotsos about anyone else involved in this investment being paid?---Absolutely not. No one else was to be paid.”

(f)He was asked whether there was ever a written agreement about the investment and his answer was that he had asked the appellant for a written agreement but he never saw one. He said he asked for such an agreement a few times and the appellant would change the subject and tell him he didn’t have to worry about anything.

(g)He said he contributed $2.8 million to the project by making more than one payment. The first payment was in early 2014 in the amount of $750,000 paid via telegraphic transfer to the trust account of the appellant’s law firm. He had instructed the appellant over the phone that $500,000 was to be paid to his ex-wife as a first instalment; $200,000 was to go towards the investment; and $50,000 was a capped fee for his divorce instalment. Otherwise, he sent regular payments down by depositing into the law firm trust account; the appellant’s personal account; and the company account as instructed by the appellant.

(h)He did not recall signing any documents before the date Koolmoon was incorporated on 30 May 2014. He said that he, the appellant and Mr White had lunches on a regular basis at which the appellant would produce documents to be signed, but he acknowledged he could not tell the Court what those documents were for or about, because he was “careless in that”. He did not know how many documents he signed.

(i)He was asked whether he was involved in the day-to-day running of Koolmoon and answered:

“No, I wasn’t. I spent most of my time working away, or when I was here in Cairns, quite depressed, not being involved in any decisions.”

(j)He was asked whether he remembered any discussions with the defendant about the use of Koolmoon’s money and said:

“Yes, it was all to be spent on the building of the building. But that’s it.”

(k)He was asked whether there was more than one discussion about the use of company money and said:

“There – no, there was only one discussion. Happened in early 2014, and it was – everything was to be invested, was to be spent on the building – building of the building, and that’s – there was never any money to be used personally by any of the directors.”

(l)Towards the end of 2014 he started to get suspicious about the building not being advanced to the state it was supposed to be and started asking the appellant for the records, but the appellant would never produce any to him. At the start of 2015 he sought legal advice and later in that year a law firm negotiated a deal by which he and his father would buy the shares in Koolmoon which had been owned by the appellant and by Mr White.

(m)After that sale had gone through his lawyers engaged a forensic accountant to go through the financial records; he sought advice about making a complaint to the police; and ultimately a complaint was made to the police.

85. The relevant parts of his cross-examination were these:

(a)He repeated that he wanted a written agreement, but conceded that during lunches the appellant would produce documents and he would sign them without reading every document. He did so because the appellant told him that the things he signed were just day-to-day running stuff.

(b)He repeated that the investment would be all in his name.

(c)It became apparent that had no real understanding about corporations or the role of directors. He did not know that companies could be legal entities in their own right. He did know that Koolmoon was officially registered on 30 May 2014.

(d)Mr Cassell said he did understand that he was a director of Koolmoon at one stage. But his understanding of his role as a director of Koolmoon was that he was just to take advice from the appellant and sign whatever documents the appellant told him to. He did not see himself as the boss. He saw himself as the investor. The appellant took charge of organising everything. The appellant controlled the money right down to the last cent.

(e)His understanding was that money in the Koolmoon account was to be used for the building project on the land. He acknowledged that there were a few occasions when he had caused money to be deposited into accounts as directed by the appellant some of which was to be used for Koolmoon and some of which was to be available for Mr Cassell’s personal use. He thought that occurred no more than three times in amounts of $8000. He was later cross-examined by reference to bank statements of Koolmoon’s account, and accepted they showed monies from Koolmoon’s account transferred to him as follows, but was unable to explain further because he could never remember previously going through Koolmoon’s accounts:

(i)17 November 2014 $46,000;

(ii)3 December 2014 $50,000;

(iii)10 April 2015 $10,000.

(f)He was cross-examined about the total $2.8 million referred to in chief, but acknowledged that of that sum about $1million went to his ex-wife. He explained that the appellant had not spent the first instalment as directed but had spent money on purchasing the block of land for investment at 5 Koolmoon Street. He was upset that the money had not gone to his ex-wife as he had directed, but, nevertheless, he sent another $550,000 down for that purpose. When challenged as to why he had done that he said “I just completely trusted [the appellant]. He told me he was good at juggling money and to leave it to him.”

(g)Later counsel revisited with him what he understood the rules of the company to be. His answer was that he did not know. He said he did not remember signing a heads of agreement. When it was put to him that he had signed a heads of agreement about the way the company was to be structured he said:

“I – I remember the structure of the company was to be 33 per cent each, but everything was to be held in my name until the company profited to – came to be ready for sale and then the investment that I put in would be paid back to me and the – any profit would be split three ways.”

(h)He was then cross examined by reference to the heads of agreement signed by him which contained the provisions identified at [78] and [79] above. He said:

(i)He couldn’t remember signing it, but he signed a lot of stuff without reading it.

(ii)He first acknowledged he may have signed it but then said it must have been to do with a nightclub and he was told that at the time.

(i)He acknowledged that the appellant made all the decisions by himself for the company and that he was ok with that because he trusted the appellant completely. He acknowledged that the appellant would run everything. Nevertheless, he insisted that he was only ratifying or giving the appellant implied consent to make decisions for the company on the building on the block and on purchasing the block and on nothing else. He said there was always a verbal agreement discussed at lunches with the appellant that: The appellant was not to pay himself, except for a bookkeeper who was to be paid. The appellant would never take any money from the company. He would “profiteer” at the end when the building was sold. But the appellant would never be paid until the end.

(j)He agreed that if the appellant had paid a deposit for the company with his own money, then the appellant would be entitled to the deposit amount back from the Koolmoon accounts.

86. Mr Cassell’s evidence as to the nature of discussions which were had with the appellant either before or after the incorporation of Koolmoon was of a low quality. He was not asked if he could say who said what to whom. Nor was he even asked to relate the gist of any particular discussion. Instead, he was permitted – without objection – simply to say what the discussion was by asserting a conclusion or opinion about the discussion. Nevertheless, his evidence as to the discussions, poor as it was, did support the conclusion that the directors had expressly or impliedly constrained the appellant from spending company money for personal purposes (including paying himself for work done for the company), unless it was for reimbursement for a company expense paid personally by the appellant. His evidence did support the conclusion that the directors of Koolmoon had otherwise impliedly delegated to the appellant all of the powers of the directors of Koolmoon to manage the business of the company. His evidence did not support the conclusion that the directors impliedly agreed that the heads of agreement should operate as a constraint on the powers so delegated to the appellant.

The evidence of Mr White

87. The Crown called Mr White.

88. Mr White recalled signing “something for opening a business”, which was probably a reference to the heads of agreement. He understood that his job was to build the building, but his only other understanding of the document was gleaned from discussions with the appellant. His evidence of those discussions shed no significant light on the nature of the appellant’s authority, or any constraints imposed on the appellant:

“What was the effect of those discussions? What was talked about?---What was my title of the business. Like, to build a building. Anthony’s supposed to do all the lawyer stuff. James supposed to put the money up front, start the building. That was mostly it.

All right. Are you able to give any more detail about what was said about your role building the building?---Yeah. It was [indistinct] yeah. Just to make it happen. Just organise engineers, cut the block. Anthony’s supposed to the lawyer stuff for the council. Once it’s passed, start developing. Pouring it.

Right. Was there any discussion during these – did anyone talk about payment to you during these?---Well, the payment – Anthony had to organise with James. He put in the trust fund or something and I passed bills on him and the bills were paid. That’s it.

All right. So that was – I just want to be clear about this. That was discussed before construction started, before you did any work?---Yeah.

All right?---It took a while to start, you know? We had to go to the engineers, councils.

All right. Are you aware of a company called Koolmoon Developments Proprietary Limited?---Yes.

How did you become aware of that company?---Because when we signed the paperwork we opened the company up. Three-way share, you know.

All right. A three-way share?---So once James puts his money in and then sold the building, he got his money back and then after the profit of the building was split three ways after that.”

89. He gave general evidence of what he did in relation to building the building. He said that he issued invoices to Koolmoon for his work, using the name “Die Hard Constructions”. He was taken to some of those invoices indicating which was paid, which was not and which he could not remember whether the invoice was paid. He said that some of the invoices were for wages which he had paid his labourers and the invoices then were for him to be reimbursed for so doing.

90. He gave evidence that he knew he was a shareholder of Koolmoon, but was not aware that he was a director when the company started. He said he became aware of that fact later, but could not remember when that was. He said he had no knowledge at all of the responsibilities and role of a director of a company. He said he did not remember having any discussions at any time in relation to whether the appellant or Mr Cassell were being paid money by Koolmoon. However, he answered in the negative the question whether he ever approved or agreed to either of them being paid money from the company.

91. He acknowledged in cross-examination that he had signed a number of documents at the time Koolmoon was incorporated, but said that he did not read the documents before signing them. He thought that one of the documents was a document that said he was a director but when asked why he didn’t know he was a director if he knew that he had signed such a document he said that he’s not “real smart”. He thought that one of the documents he signed was a constitution of the company.

92. He said that there were “verbal statements” made that he would be paid $1,600 or $1,650 a week. The cross-examiner suggested that the agreement was for the appellant to be paid something for the work that he would do. Initially Mr White said that he couldn’t tell the cross-examiner “about that one”, but then acknowledged that the agreement probably would have been that because the appellant “wouldn’t do it for nothing”.

93. He agreed that the appellant was heavily involved in the general running of the company.

94. Mr White’s evidence did not significantly assist an understanding of the nature of the appellant’s authority to manage the business of the company and whether there were any constraints on that authority. It was consistent with the conclusion that the directors of Koolmoon had impliedly delegated to the appellant all of the powers of the directors of Koolmoon to manage the business of the company. His evidence did not give support to the conclusion that the directors impliedly agreed that the heads of agreement should operate as a constraint on the powers so delegated to the appellant. Insofar as he said he had not ever approved or agreed to either of Mr Cassell or the appellant being paid money from the company, his evidence gave some support to Mr Cassell’s on the same point. However his evidence that the appellant “wouldn’t do it for nothing” contradicted Mr Cassell’s evidence that the appellant was not entitled to any payment out of company funds for the work he did.

The evidence of Mr Young

95. The Crown called Mr Young.

96. He gave evidence of discussions occurring between the appellant, Mr Cassell, Mr White and himself at a golf game concerning an investment opportunity. He did not identify when those discussions took place. He said that the respective roles of each of the four of them was discussed between them. In answer to questions about what was discussed concerning each role, he said: (a)The appellant’s role was to do all the legal work at no cost. (b)Mr White’s role was to do all the building works at no cost. (c)Mr Cassell’s role was to invest all the money. (d)His role was to run the business once the building had been built. He would do that for two to three years and then they would sell the business and the land together. (e)Each party would get a 25 per cent share of the profit of the sale of the property and the land when sold together.

97. He said there was a subsequent meeting at which all four were present in which they reviewed the size of the building and the plans of the offices and the building. He said that was in 2014.

98. He recalled another meeting between the four of them at which a document was signed at the golf club. He didn’t read the document before signing it. He signed it with the other three. He identified the heads of agreement as the document he signed because he identified his signature and said he only ever signed one document.

99. He said he had no further involvement in the project after signing the document and was not made aware of the date on which the company was incorporated.

100. During cross-examination he corrected what he had earlier said about Mr White’s role. He said that the discussions were that Mr White was to do the building at cost. He also repeated that in the original discussions he was part of, there was no discussion which suggested that the appellant would be paid money for the work he was putting into the project during the project.

101. As Mr Young had no role after the incorporation of the company, his evidence shed no light on the nature of or constraints applicable to the power of the appellant to manage the business of the company. It did, however, provide some corroboration for Mr Cassell’s evidence that the appellant’s role would not involve receiving any payment from the company. Especially was that so given that he had no apparent pecuniary or other interest in what had happened as between the contracting parties after he had ceased to play a role, and might be regarded as a reliable objective witness in relation to events up to and including the heads of agreement.

The appellant’s record of interview

102. In the record of interview, the appellant explained the significance of the heads of agreement document in these terms:

“…, well um at a more advanced stage we’d ah put together the, the Heads of Agreement which um basically we signed to say that this is sort of what we would do. And um there are three sort of principal roles in that. There was another fourth fellow that was involved really to balance um so James and his friend ah Andrew would sort of be half the business and myself and Alf White would be the other half of the business. Um and so there's a, a fellow Andrew Young whose name appears in the original Heads of Agreement. James in the end thought that well he didn't really have much utility so he asked that Andrew sort of not be involved ah going forward. So when the company was actually put together, it was myself, James and Alf. And there is the Heads of Agreement which basically says in very simple terms what our roles would be.”

103. This evidence was the high point of the evidence connecting the heads of agreement with the on-going conduct of the business of the company. The appellant appeared to accept that the heads of agreement had a continued operation in relation to describing the roles of Mr Cassell, Mr White and the appellant going forward.

Conclusion

104. The evidence established that, as a general proposition, the directors of Koolmoon had by their conduct impliedly delegated to the appellant all of the powers of the directors of Koolmoon to manage the business of the company. However, it was open to the jury to find that the Crown had proved to the criminal standard that the general delegation was impliedly made subject to what had been said in the heads of agreement concerning roles and expressly made subject to what was discussed between the directors at informal lunch meetings. This meant that it was open to the jury to find that it had been proved to the criminal standard that the appellant was not authorised to pay himself for work he did for the company and, although he could reimburse himself for company expenses which he had paid personally, he was not otherwise authorised to use company money for personal reasons. And if, as I think it was, it was open to the jury to form that view, the evidence which justified the formation of that view also justified the formation of the view that the appellant must have known of the limitations on his authority because they derived from discussions to which he was a party.

The scope of the Crown evidence addressing the purpose of expenditure

105. The Crown called Ms Hall, who was employed by the appellant for three or four months in 2015 doing general office duties as instructed by him in connection with his law practice, Koolmoon, and Velos Family Investments Pty Ltd. Part of her day-to-day role involved managing the accounts for those entities, by the use of MYOB software.

106. She and the appellant created the MYOB file which was in place for Koolmoon. She did the data entry into the software, including by inserting relevant descriptions for the transactions recorded by the software. The entries were not always done daily – they were often done at the end of the week.

107. The sources of information which she used for that purpose were: (a)bank statements given to her by the appellant; (b)receipts, if there were any; and (c)if she thought the description needed clarification, the appellant.

108. The appellant was in and out of the office quite frequently. If she had thought something wasn’t self-explanatory, she would try to grab him when she could so that she could finalise the entry. When the appellant was the source of information, she always inserted what he asked her to put in.

109. The Crown made no attempt through the evidence of Ms Hall to identify the MYOB entries which were made by Ms Hall and in particular made no attempt to differentiate which MYOB entries were made based on her own judgment and which were based on what the appellant told her.

110. The Crown called Ms Murrell. She was employed at the appellant’s law firm as a receptionist and bookkeeper for a 6-week period. This must have been after Ms Hall. Although she worked at the premises of the law firm, her bookkeeping role was in relation to Koolmoon. She gave evidence that she maintained and continued using the existing MYOB file for Koolmoon. The data for data entry came from bank statements and receipts. She said that the appellant did not show any interest in the entries; she did not ever discuss particular entries with him; and he did not provide her with any information for the purpose of data entry beyond bank statements and receipts.

111. The Crown made no attempt through the evidence of Ms Murrell to identify the MYOB entries which were made by Ms Murrell.

112. The Crown called Ms Cooper. She commenced working for the appellant as the bookkeeper for his law firm and for Koolmoon in September 2015. She worked for him for about a year. She too did the bookkeeping for Koolmoon by using the MYOB software. She did data entry by reference to: (a)tax invoices received from suppliers through the email; (b)some invoices received from the appellant; (c)Koolmoon’s bank statements; and (d)on some occasions, further information or clarification obtained from asking the appellant what the transaction was.

113. On the occasions when she sought clarification from the appellant, she entered the information he gave her.

114. The Crown made no attempt through the evidence of Ms Cooper to identify the MYOB entries which were made by Ms Cooper and in particular made no attempt to differentiate which MYOB entries were made based on her own judgment and which were based on what the appellant told her.

115. The Crown called Ms Bennetts and tendered through her a USB which contained the MYOB records of Koolmoon. She was familiar with the MYOB program and gave some explanation as to how it worked.

116. Some further evidence addressing purpose was found in the trust account statements from the appellant’s law firm and in the descriptions appearing in trust account documentation of the destination and purpose of transfers made from the firm’s trust account. The Crown evidence in the form of the record of interview between police and the appellant was that the appellant accepted that he had both the legal responsibility for those entries and the factual day-to-day management of the account and responsibility for the inputs.¹⁹ Indeed, the respondent submitted to this Court and the appellant did not dispute that it was not in dispute in the trial, and was not disputed on appeal, that: (a)the appellant conducted each relevant transaction which necessarily included inputting the descriptions of the transactions found in the various bank account statements; and (b)the appellant made each relevant entry in relation to the Trust Account Statements of his legal practice.

Count 1

The evidence particular as to this count

117. Count 1 concerned a transfer made on 4 July 2014 of $10,000 held on trust for Koolmoon in the Omega Lawyers Trust Account to the Mirotsos Platinum Card Account to pay an amount owing on a credit card held by the appellant.

118. In the Omega Lawyers Trust Account bank statement, the transfer of money going out is recorded as “AGM payment”, and dated 4 July 2014.²⁰ The appellant’s credit card statement records funds being received the same day with no description, with the payment simply appearing as “Payment Received, Thank You”.²¹ The trust account statement contains an entry recording the reasons for the payment on the same day as “Reimbursement of penalty payment for Koolmoon in accordance with Special Conditions”.²² As previously noted, the appellant accepted that he conducted the relevant transfer and recorded the descriptions.

119. The appellant gave oral evidence that there had been a failure to meet a settlement date for the purchase of land which incurred a $10,000 penalty payment which the appellant paid on 1 July 2014.²³ He made the payment by invoicing another client for $10,000 and then transferring $10,000 out of Omega Lawyers Trust Account and into the vendor’s solicitor’s trust account. The appellant’s evidence was that transfer in question on 4 July 2014 was therefore a reimbursement for that payment made on 1 July 2014, which had been made in effect from his funds.²⁴

120. The Crown elicited evidence from the appellant that, having regard to relevant bank statements, the only transfer of $10,000 out of the Omega Lawyers Trust Account on 1 July 2014 was the one which the bank statement recorded as a transfer to the file number “14AGM047”.²⁵ The Crown established that was not the file number for the conveyance concerned, but related to some other file. It did not establish what client that file number related to or what that payment was for. However it was, self-evidently, not a transfer to the vendor’s solicitor’s trust account. The Crown elicited a concession from the appellant that having regard to the bank statements for all other accounts in his name and in the name of his firm or Koolmoon, there was no other account from which there was a $10,000 transfer on 1 July 2014.²⁶

121. The Crown called the vendor of the property, Mr Spelta, who gave evidence that he had sold the property to Koolmoon. When asked at what price, he said:²⁷

“It started off at 420 or 450, and then when it defaulted, contract time, and extensions were made, I met with my solicitor and we then added on extras, land tax and whatever, and renego – negotiated another price.”

122. He later added that the default was “Not arriving on time and on the due date” and that resulted in a negotiation which resulted in a higher price being paid than originally stated. He could not remember how much had been added to the contract price. All funds were paid on the eventual settlement date.

123. Mr Cassell gave evidence that he could not remember whether the appellant paid the $10,000 deposit for the land.²⁸

The appellant’s argument

124. The appellant argued it was not open to the jury to be satisfied beyond reasonable doubt that the expenditures or transfers concerned were not authorised by the company, given that authorisation was a matter for the directors to decide for themselves according to their own criteria. Nor was it open to the jury to be satisfied beyond reasonable doubt that the expenditures or transfers concerned were not for a legitimate purpose of Koolmoon. This argument was also advanced in relation to counts 3, 4, 6-8, 13 and 20.

125. Those funds from which the 4 July 2014 transfer was made were alleged to be held on trust for the company pursuant to an oral direction given by Mr Cassell prior to 4 July 2014. The prosecution did not elicit any evidence from Mr Cassell about any oral direction he gave about funds in Omega Lawyers Trust Account beyond his general evidence about making transfers into that trust account. Mr Cassell could not remember whether the appellant paid the $10,000 deposit for the land in circumstances where the contract had been signed and settlement was due prior to Mr Cassell transferring any funds for the purchase. Mr Cassell conceded in cross examination that if the appellant had had to pay the $10,000 deposit for the purchase of the land from his own funds then the appellant would have been entitled to obtain $10,000 out of company funds. The appellant gave evidence that he did indeed pay the $10,000 deposit.

The respondent’s argument

126. The respondent relied on the evidence to which reference has already been made for the proposition that it was open to the jury to find that it had been proved to the criminal standard that the appellant was not authorised to pay himself for work he did for the company and, although he could reimburse himself for company expenses which he had paid personally, he was not authorised to use company money for personal reasons. This argument was also advanced in relation to counts 3, 4, 6-8, 13 and 20.

127. The vendor of the property the payment purportedly related to gave evidence that due to a default on the contract there were “extras” added to the purchase price, but all funds were paid at settlement on 4 July 2014.

128. The evidence that the appellant recorded a false description for the payment was strong evidence supported by other evidence about the operation of Koolmoon, that the payment to the appellant’s personal account was not authorised or that he was not entitled to it. The obvious inference from the false description was that the appellant knew he was not authorised or entitled to the money and it was therefore dishonest.

Consideration

129. The question here is whether it was open to the jury to regard the evidence which it did accept as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the purpose of the transfer was to reimburse the appellant for a company expense (namely some form of penalty in relation to the conveyance) which he had personally paid.

130. The truth of the explanation that the $10,000 transfer made to the appellant’s credit card on 4 July 2014 was for “Reimbursement of penalty payment for Koolmoon in accordance with Special Conditions”, depended on the proposition that the appellant had in fact paid out of his own funds some form of penalty amount to the vendor because the settlement did not take place as originally scheduled.

131. The jury was entitled to reject the appellant’s evidence that he had done so. It was entitled to reject the appellant’s explanation of the mechanism by which he said he made such a payment.

132. The jury was entitled to accept the evidence of the vendor as establishing that there had been no earlier payment by the appellant and that while it was true that the delay in settling the conveyance had the result that Koolmoon had to pay an increased purchase price, that payment occurred when the increased purchase price was paid on settlement on 4 July 2014. If the jury accepted that evidence it would demonstrate the falsity of the description of the reason for the payment.

133. If the explanation was false, then the transfer must have been made for some other and unauthorised personal purpose of the appellant. And I agree with the respondent’s submission that the obvious inference from the false description would be that the appellant must have known the expenditure was not authorised and it was therefore dishonest.

134. I find that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 fails in relation to this count.

Count 3

The evidence particular as to this count

135. Count 3 concerned a transfer made on 14 July 2014 of $5,000 from the Koolmoon Developments General Account to a personal account of the appellant’s called the Mirotsos Complete Access Account. In Koolmoon’s bank statement, the transfer of money going out is recorded as “Koolmoon develop”, dated 14 July 2014.²⁹ The transfer of money coming in appears in the appellant’s bank statement on the same day with the same description.³⁰ In the company’s MYOB records, the payment is recorded as “Kurrimine Beach Concreting”, which was a business owned by Mr White.³¹

136. The appellant gave oral evidence that Mr White had failed to perform tasks relevant to the development project which led to the appellant performing those tasks. The appellant’s evidence was that he paid the $5,000 to himself as payment for that work.³²

137. The Crown case as opened was that the $5,000 did not go to Mr White or Kurrimine Beach Concreting, as the MYOB records indicated. The Crown argued that this was evidence that the appellant intended to disguise the payment.³³

The appellant’s argument

138. The appellant relied on earlier submissions concerning proof of lack of authority.

139. The appellant's evidence was that Mr White had failed to perform tasks so the appellant had to perform those tasks and he paid this sum to himself as payment for that. The prosecution could not establish what the appellant did with this sum of $5,000.

The respondent’s argument

140. The respondent relied on earlier submissions concerning proof of lack of authority.

141. The respondent argued the irresistible conclusion from the records was that the appellant intended to disguise this payment as a legitimate payment to Alfred White’s company. As a result, the jury were entitled to conclude that the payment to the appellant was not authorised or he was not otherwise entitled to it and that the appellant knew it was not authorised or that he was entitled to it and it was therefore dishonest.

Consideration

142. The evidence concerning the MYOB entry may be disregarded. It was made by a bookkeeper and there was no way of attributing the content of the particular MYOB entry to the appellant. The evidence certainly did not support an inference that the appellant formulated the entry to disguise the purpose for the transfer.

143. The result is that the evidence before the jury demonstrated a transfer of company money to the appellant described in an unremarkable way in the bank statements, combined with the appellant’s admission that the reason for the transfer was to pay himself for work which he had done for the project.

144. The question here is whether it was open to the jury to regard the evidence as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the appellant did not know that he was not authorised to use company money to pay himself for work done for the project, because he had a contrary belief. For the reasons expressed at [70] to [104] above, I think it was open to the jury to find that hypothesis to have been excluded to the criminal standard.

145. I find that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 fails in relation to this count.

Count 4

The evidence particular as to this count

146. Count 4 concerned a transfer on 7 August 2014 of $45,000 from the Koolmoon Developments General Account to the personal account of the appellant called the Mirotsos Viridian Line of Credit Account.

147. The evidence revealed the following transfers: (a)A transfer by Mr Cassell of $549,975 into the Omega Lawyers Trust Account which was recorded as “Divorce Settlement” in the trust bank statement, dated 6 August 2014.³⁴ (b)A transfer of $49,975 from the Omega Lawyers Trust Account into the Koolmoon Developments General Account, which was recorded as “Omega deposit” in the Koolmoon bank statement, dated 7 August 2014.³⁵ (c)The transfer of $45,000 going out was recorded in Koolmoon’s bank statement as “AGM payment”, dated 7 August 2014.³⁶ (d)The transfer of money coming in appeared in the Viridian Line of Credit Account bank statement on the same day with the same description.³⁷ (e)In Koolmoon’s MYOB records, the transaction was recorded as “Owners drawings/Bank Trf” and “Formwork & Building Materials”.³⁸

148. The appellant gave oral evidence that the transfer of $45,000 on 7 August 2014 was to cover his fees for acting for Mr Cassell in a family law matter.³⁹ The appellant’s evidence was that Mr Cassell transferred $549,975 into the Omega Lawyers Trust Account, $500,000 of which was to go to Mr Cassell’s ex-wife and $49,975 of which was to be his fee for acting on the matter.⁴⁰ The appellant gave evidence that the next day he transferred $49,975 from the Omega Lawyers Trust Account into the Koolmoon Developments General Account, which was recorded as “Omega deposit” in the Koolmoon bank statement, dated 7 August 2014.⁴¹ He accepted that he was the source of that description.⁴² The appellant contended that he then transferred the $45,000 in question from the Koolmoon account to himself as payment for the family law services.⁴³ He said he left $4,975 in the Koolmoon account as part repayment for a $40,000 loan he owed to the company.⁴⁴

149. The Crown case was that the $49,975 portion of Mr Cassell’s $549,975 transfer to the Omega Lawyers Trust Account on 6 August 2014 was money for Koolmoon, not a payment for the family law matter.⁴⁵ The Crown argued that the $49,975, which was the source of the $45,000 used in the impugned transfer, was money given by Mr Cassell for Koolmoon.⁴⁶ The Crown contended that Mr Cassell and Mr White had no knowledge of and did not authorise the $45,000 payment.

150. However, Mr Cassell did give oral evidence that he transferred $2.8 million to the project. He said that sometime in early 2014 he transferred $750,000 to the trust account, $500,000 of which was to be paid to his ex-wife as a first-instalment payment, $200,000 of which was to be directed towards a property investment in Smithfield, and $50,000 of which was a capped fee for the divorce settlement.⁴⁷ In cross-examination he explained that of the $2.8 million, $1 million was to go to his ex-wife as a family law settlement. He said that the first transfer he made was of $750,000, of which $500,000 was to go to his ex-wife. He complained that:⁴⁸

“Only 118,000 was sent to her lawyer and I then had to send 550,000 down about a month later to pay my ex-wife her first instalment because Anthony had put 630,000 towards a block of land when he was only supposed to put 200,000 towards a block of land.”

151. His complaint was that he had wanted the instalment payment to be made to his wife before any money was used towards the development project. He acknowledged that the arrangement was that the appellant’s fees for the family law retainer was capped at $50,000 and that he was to pay the appellant that amount at the time of the first instalment payment to his ex-wife.⁴⁹ That observation must be taken to have been applicable to the time when he “sent 550,000 down”

The appellant’s argument

152. The appellant relied on earlier submissions concerning proof of lack of authority.

153. Mr Cassell gave evidence that prior to discussions about him, the appellant and Mr White purchasing land, he had retained the appellant to act for him in a dispute with his wife in a family law matter. He was told that the appellant's fee to act for him was to be $50,000 and Mr Cassell had not provided any funds to the appellant's firm to cover that fee prior to the appellant starting work on Mr Cassell’s family law matter. Mr Cassell said that when he transferred a sum of $750,000 to the Omega Lawyers Trust Account he told the appellant that $50,000 was to be for fees for his family law matter. The appellant's evidence was that the transfer was to cover his fees for acting in Mr Cassell's family law matter.

The respondent’s argument

154. The respondent relied on earlier submissions concerning proof of lack of authority.

155. It was accepted in relation to count 4 that the appellant transferred $45,000 from the Koolmoon Developments General Account to a line of credit in his own name, containing a personal debt. Further, it was accepted that it was the appellant who recorded the descriptions of the payments as “AGM payment”. This payment was recorded in the company records as “Owners drawings/Bank Trf” and “Formwork & Building Materials.”

156. The respondent contended that Mr Cassell and Mr White had no knowledge of and did not authorise this payment. As a result, the jury were entitled to infer from the lack of authority that the descriptions given by the appellant were intended to disguise the nature of the payment and he therefore knew the payment was not authorised or that he was not entitled to it and it was therefore dishonest.

Consideration

157. The question here is whether it was open to the jury to regard the evidence as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the appellant thought he was entitled to transfer the money in payment of his family law fees.

158. The evidence concerning the MYOB entry may be disregarded for reasons earlier expressed.

159. The only evidence before the jury as to the purpose for which $549,975 had been transferred into the Omega Lawyers Trust Account was that which came from Mr Cassell. This amount must have been the payment of $550,000 referred to in his evidence. He acknowledged that the appellant was entitled to his capped fee at the time of the payment of the first instalment to Mr Cassell’s ex-wife. Mr Cassell’s evidence provided support for the inference that Mr Cassell must have accepted (and therefore be regarded to have authorised) that $50,000 of the amount transferred was an amount to which the appellant was entitled on account of his capped fee. This provided real support for the appellant’s evidence as to his belief of his entitlement to use the monies in the way he did and therefore for a reasonable hypothesis inconsistent with guilt. In my view there was no basis for the jury to find that that hypothesis had been excluded to the criminal standard.

160. I find that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 succeeds in relation to this count.

Count 6

The evidence particular as to this count

161. Count 6 concerned a transfer made on 18 December 2014 of $32,730.23 from the Koolmoon Developments General Account to a lease account with Macquarie leasing to pay the balance of novated lease for a personal vehicle. The transfer of money going out was recorded in Koolmoon’s bank statement as “MCAF”, dated 18 December 2014.⁵⁰ The company’s MYOB records refer to the payment as “Building Contractors”.⁵¹

162. The appellant gave oral evidence that the payment was a reasonable price to pay for a vehicle used to attend company business.⁵² The appellant claimed that he had discussed the payment with Mr White.⁵³

163. The Crown case was that the appellant never spoke to either Mr Cassell or Mr White about the vehicle.⁵⁴ The Crown contended that Mr White gave no evidence about having a conversation with the appellant about the vehicle. Mr Cassell gave evidence that it was his expectation that the appellant’s transport costs incurred on company business were for him to bear.⁵⁵ The Crown also pointed to the ambiguity in the description “MCAF” in the bank statement and the description “Building Contractors” in the company records as proof that the appellant intended to disguise the payment.⁵⁶ Ultimately, the Crown contended that the jury were entitled to conclude based on the terms of the heads of agreement and the evidence of Mr Cassell and Mr White that the appellant did not have authorisation or was not entitled to transfer this money.

The appellant’s argument

164. The appellant relied on earlier submissions concerning proof of lack of authority.

165. The prosecution case was that these funds were used to pay out a novated lease on a car which lease had been entered into prior to the establishment of the company. Mr Cassell said that his expectation had been that the appellant's transport costs incurred on company business were for him to bear without recourse to the company. The appellant's position was that this payment was a reasonable expense for the company to pay for the appellant's use of a vehicle to attend to company business. He claimed that he discussed this payment with Mr White.

The respondent’s argument

166. The respondent relied on earlier submissions concerning proof of lack of authority.

167. The respondent argued that it was uncontroversial that it was the appellant who conducted the transaction and entered the description for the payment as “MCAF” in the bank account. Further, the company’s records referred to this payment as “Building Contractors”.

168. The jury were entitled to conclude from the terms of the heads of agreement and the evidence of Mr Cassell and Mr White that the appellant did not have authorisation and was not entitled to transfer this money to his motor vehicle lease and that his use of the description in the company records was designed to disguise the fact of the payment to his personal use. He therefore knew he was not entitled to conduct the transfer and it was dishonest.

Consideration

169. The evidence concerning the MYOB entry may be disregarded for reasons earlier expressed.

170. The result is that the evidence before the jury demonstrated a transfer of company money for, on his admission, the payment of his personal vehicle lease.

171. The question here is whether it was open to the jury to regard the evidence as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the appellant did not know that he was not authorised to use company money to pay out his personal car lease, because he had a contrary belief based on conversations with Mr White. For the reasons expressed at [70] to [104] above, I think it was open to the jury to find that hypothesis to have been excluded to the criminal standard.

172. I find that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 fails in relation to this count.

Count 7

The evidence particular as to this count

173. Count 7 concerned a transfer on 7 January 2015 of $13,000 from the Koolmoon Developments General Account to the Mirotsos Home Loan Account to pay an amount owing on a home loan. The transfer of money going out was recorded in Koolmoon’s bank statement as “ReimbAM Concrete”, dated 7 January 2015.⁵⁷ The transaction was recorded in the company’s MYOB records as “Hanson Construction”.⁵⁸

174. The appellant gave oral evidence that this transfer was payment for work he had performed for Koolmoon due to Mr White’s non-performance.⁵⁹ He was unable to explain why he had recorded in the narration in the bank statement reference to reimbursement.

175. The Crown case was that that the only reasonable inference that could be drawn from the descriptions of the payment was that the appellant intended to disguise the nature of the payment to himself and he did so because he knew he was not authorised or entitled to conduct the transfer.

The appellant’s argument

176. The appellant relied on earlier submissions concerning proof of lack of authority.

177. The appellant argued that this sum represented the value of work he had performed for the company due to Mr White's inability to do the work required of him.

The respondent’s argument

178. The respondent relied on earlier submissions concerning proof of lack of authority.

179. The only reasonable conclusion from the descriptions and all the evidence was that the appellant intended to disguise the nature of the payment to himself and he did so as he knew he was not authorised or entitled to conduct the transaction. The only inference from that state of knowledge was that the transaction was dishonest.

Consideration

180. The question here is whether it was open to the jury to regard the evidence as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the appellant did not know that he was not authorised to use company money to pay his own personal debts, because he had a contrary belief that he was entitled to be paid for work he had done on the project. For the reasons expressed at [70] to [104] above, I think it was open to the jury to find that hypothesis to have been excluded to the criminal standard. That conclusion was also supported by the fact that the jury was entitled to regard the erroneous description in the bank statement in the way in which the Crown had submitted it should.

181. I find that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 fails in relation to this count.

Count 8

The evidence particular as to this count

182. Count 8 concerned the transfer on 7 January 2015 of $50,000 from the Koolmoon Developments General Account to the Mirotsos Smart Access Account, which was one of the appellant’s personal accounts. The transfer of money going out was recorded in Koolmoon’s bank statement as “SH repay”, dated 7 January 2015.⁶⁰ The transfer of money coming in is recorded with the same description in the Mirotsos Smart Access Account bank statement, dated 7 January 2015.⁶¹ In the company MYOB records, the transaction is recorded as “Anthony Mirotsos”.⁶²

183. The appellant gave oral evidence that the $50,000 transfer was a payment he made to himself for project management work he did for Koolmoon.⁶³ The appellant contended that he had to wait until there were sufficient funds in the Koolmoon account to pay himself for the project management work he had been undertaking, as Mr Cassell had been taking a substantial amount of money from the Koolmoon account at the end of 2014.⁶⁴ The company’s bank records show that on 17 November 2014 $46,000 was transferred to Mr Cassell and on 3 December 2014 $50,000 was transferred to Mr Cassell.⁶⁵ Mr Cassell gave evidence that he did not remember these transfers.⁶⁶

The appellant’s argument

184. The appellant relied on earlier submissions concerning proof of lack of authority.

185. As noted above, the appellant argued that this figure was for project management fees that he paid to himself. He said that Mr Cassell had asked for a lot of money to be made available to him out of the company account and the appellant had to wait until there were sufficient funds available to pay himself for his project management work. The bank account records of the company show that on 17 November 2014 $46,000 was transferred to Mr Cassell and on 3 December 2014 $50,000 was transferred to Mr Cassell. Mr Cassell did not remember these transfers.

The respondent’s argument

186. The respondent relied on earlier submissions concerning proof of lack of authority.

187. The jury rejected the appellant’s explanation that this payment was for project management fees to himself. They were entitled to accept from the evidence of Mr Cassell and Mr White and the terms of the heads of agreement that the appellant was not authorised or entitled to receive any payment for project management work. There was no evidence that there was ever any conversation or agreement that the appellant would be paid other than by virtue of receiving a portion of the profit at the end of the agreement. In the absence of any express authority the jury were therefore entitled to accept that the appellant knew that he was not authorised or entitled to make the payment. The only reasonable inference from this knowledge is that the transaction was dishonest.

Consideration

188. The question here is whether it was open to the jury to regard the evidence as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the appellant did not know that he was not authorised to use company money to pay himself for work done for the project, because he had a contrary belief. For the reasons expressed at [70] to [104] above, I think it was open to the jury to find that hypothesis to have been excluded to the criminal standard.

189. I find that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 fails in relation to this count.

Count 13

The evidence particular as to this count

190. Count 13 concerned the transfer on 20 May 2015 of $5,875 from the Koolmoon Developments General Account to a third party’s account (F&P Interiors) to pay for construction work performed at the appellant house by the third party. The transfer of money going out was recorded in Koolmoon’s bank statement as “Carpentry”, dated 20 May 2015.⁶⁷ The same description appears in the company’s MYOB records.⁶⁸ The trace document for this transfer indicates that the receiving account had the description “inv 3688”,⁶⁹ which was consistent with the number on the invoice issued by F&P Interiors (who performed the appellant’s home renovations).⁷⁰

191. The appellant gave oral evidence that this transfer was a payment that he made to himself for work he did which Mr White was supposed to have performed.⁷¹

192. The Crown case was that the appellant applied company money as payment for his personal renovation without the knowledge or authority of Mr Cassell or Mr White. The Crown pointed to the bank statement and MYOB description “Carpentry” as disingenuous and inconsistent with a kitchen being installed at the appellant’s home.⁷² The Crown contended that this showed the appellant intended to disguise the payment because he knew he was not authorised or entitled to the transfer of money for the payment of personal kitchen renovations.

The appellant’s argument

193. The appellant relied on earlier submissions concerning proof of lack of authority.

194. As noted above, the appellant argued that this transfer represented the last payment that he made to himself for work he performed for Koolmoon that Mr White was supposed to have done.

The respondent’s argument

195. The respondent relied on earlier submissions concerning proof of lack of authority.

196. The description of the payment in the bank account for Koomoon was “carpentry”, which the appellant accepted he had made. The same description appeared in Koolmoon’s records. The trace document for this transfer indicated the receiving account had the description “inv 3688”, consistent with the number on the invoice issued by the business that did the appellant’s renovations.

197. The appellant applied money from the company as payment for his personal renovation without the knowledge or authority of Mr Cassell or Mr White. The jury were entitled to conclude that the terms used to describe the payments were designed to disguise the true nature of the payments. The appellant disguised the payment because he knew he was neither authorised nor entitled to make the transaction and it was therefore dishonest.

Consideration

198. The question here is whether it was open to the jury to regard the evidence as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the appellant did not know that he was not authorised to use company money to pay his own personal debts, because he had a contrary belief that he was entitled to be paid for work he had done on the project. For the reasons expressed at [70] to [104] above, I think it was open to the jury to find that hypothesis to have been excluded to the criminal standard. That conclusion was also entitled to regard the erroneous description in the bank statement in the way in which the Crown had submitted it should.

199. I find that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 fails in relation to this count.

Count 20

The evidence particular as to this count

200. Count 20 concerned a transfer of $2,000 from the Koolmoon General Account to the Mirotsos Viridian Line of Credit Account on 20 July 2015. The transfer of money going out was recorded in Koolmoon’s bank statement as “AM reimburse”, dated 20 July 2015.⁷³ The transfer of money coming in was recorded in the Viridian Line of Credit bank statement with the same description on the same day.⁷⁴ The transfer was recorded in the company’s MYOB records as “Diehard Constructions”.⁷⁵

201. The appellant gave oral evidence that this transfer was a reimbursement for two sums of money that he deposited into the company bank account on 9 and 16 July 2015.⁷⁶ The company’s bank statement recorded a transfer of $500 coming in on 9 July 2015 titled “AM transfer”.⁷⁷ The bank statement also recorded a transfer of $1,500 coming in on 16 July 2015 titled “AM transfer”.⁷⁸ The appellant’s evidence was that he put this money into the Koolmoon account as Mr White had to be paid.⁷⁹ The company’s bank statement revealed that just before the appellant transferred the monies in, the balance in the company’s account was $1,353.52, and just after the $1,500 was transferred in, the company transferred $3,077 out to Diehard Constructions, which was Mr White’s company.⁸⁰ The transfer of $2,000 to himself on 20 July 2015 was therefore a reimbursement payment for those two sums.

The appellant’s argument

202. The appellant relied on earlier submissions concerning proof of lack of authority.

203. As noted above, the appellant argued that this transfer represented a reimbursement to himself for two sums of money that he deposited to the company bank account on 9 July and 16 July 2015. Those deposits can be seen in the Koolmoon bank statement. He claimed that Mr White needed to be paid and that Mr White could not wait for the money. The bank statement shows that before the first deposit on 9 July 2015 the Koolmoon account only had a balance of $1,352.52.

The respondent’s argument

204. The respondent relied on earlier submissions concerning proof of lack of authority.

205. The respondent argued that the only inference to be drawn from the description given in the records was that the appellant intended to disguise the payment. That fact, together with the other evidence about the lack of knowledge of the transaction by the other directors or any authorisation or entitlement to the payment therefore demonstrated that it was dishonest.

Consideration

206. The question here is whether it was open to the jury to regard the evidence as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the appellant thought he was entitled to reimburse himself for, in effect, company expenses (namely the payment made to Diehard Constructions) which he had personally met (by putting the company in funds to make the transfer to Diehard Constructions).

207. Contrary to the respondent’s submission before the Court, the evidence of the books of account supported the appellant’s evidence before the jury. And, for the reasons I canvassed in the discussion at [70] to [104] above, the evidence on the Crown case would tend to support the conclusion that the appellant would have been authorised to make such a disposition of company funds. All of this was sufficient to provide real support for a reasonable hypothesis inconsistent with guilt. In my view there was no basis for the jury to find that that hypothesis had been excluded to the criminal standard.

208. I find that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 succeeds in relation to this count.

Count 32

The evidence particular as to this count

209. The Crown called Mr O'Reilly. He was a solicitor with MacGregor O'Reilly Solicitors. They acted for the lender of a loan to Koolmoon. The Crown elicited through him: (a)that he represented a mortgage lender or lenders in relation to their dealings with Koolmoon and the appellant; and (b)the documentary record of relevant written communications.⁸¹

210. The documentary record revealed: (a)By email dated 20 April 2016, sent at 11.09 am, Mr O'Reilly confirmed with Ms Cooper from the appellant’s firm that $249,000 in balance loan funds was available to be drawn down over three stages with the final amount disbursed on certificate of occupancy. Draw down requests were to be forwarded to MacGregor O'Reilly Solicitors. They could not pay amounts to the appellant “unless they are in reimbursement of a contractor or supplier quote/invoice for works specified to complete. Evidence of payment is required with a copy of the quote.” (b)By email dated 20 April 2016, sent at 12.46 pm, Ms Cooper provided to one of Mr O'Reilly’s employees a letter to the lender of the same date from Koolmoon but signed by the appellant which requested that payment be arranged to three suppliers in particular amounts. One of the suppliers was the appellant and the amount requested was $95,592.40. The letter requested that the balance after payment of those three suppliers be paid into Koolmoon’s bank account. Ms Cooper’s covering email stated “The payment to [the appellant] is reimbursing him for the capital he has put into the business and it formed part of the application for disbursements that you approved. No invoice is required for this payment.” (c)By email dated 20 April 2016, sent at 1.11 pm, Mr O'Reilly’s employee sent to Ms Cooper a settlement statement recording proposed disposition of the loan monies. It advised that “The first draw down will consist of those payments listed in the statement as per the quotes provided. Please confirm these amounts.” (d)By email dated 20 April 2016, sent at 1.26 pm, Ms Cooper noted that the settlement document did not propose any payment in respect of any of the three suppliers mentioned in Ms Cooper’s previous email and requested that they be included in the amounts provided. (e)By email dated 20 April 2016, sent at 2.44 pm, Ms Cooper provided invoices for one of the three suppliers mentioned and stated that “we need [those] invoices to be paid today” along with the other two suppliers, mentioning the appellant specifically. (f)On 20 April 2016, Koolmoon wrote a letter to MacGregor O'Reilly Solicitors, signed by the appellant, which directed the release of funds to those parties listed in the letter. The list in the letter responded specifically to the settlement statement and listed the payments to be made. A comparison with the settlement statement which the lender had provided revealed that Koolmoon’s list removed three proposed payments to contractors, added the three suppliers the subject of Ms Cooper’s previous communications (therefore including the previously requested payment to the appellant) and adding a request for payment to the appellant’s law firm. (g)By email dated 26 April 2016, sent at 12.58 pm, Mr O'Reilly emailed Ms Cooper pointing out again that “draw downs will be in accordance with the loan agreement only”. Insofar as it responded to the request to pay monies to the appellant, the email stated “We have no current instructions to pay. It is not in accordance with the draw down terms.” (h)By email dated 26 April 2016, sent at 1.11 pm, Ms Cooper responded. Insofar as the email dealt with the previously requested payment, it stated “Regarding [the appellant], this repayment of capital formed part of the schedule provided to you for settlement.” (i)By email dated 28 April 2016, sent at 7.45 am, Mr O'Reilly responded to Ms Cooper reiterating that his client’s position had been earlier outlined. Insofar as it responded to the request to pay monies to the appellant, the email stated “The payment to [the appellant] is again not in accordance with the loan agreement or the general authority. Actioning this payment will also leave the project short on costs to complete as per the schedule of costs provided by the borrower.”

211. Count 32 asserted that the appellant had dishonestly attempted to induce MacGregor O'Reilly Solicitors to deliver a sum of money to him. The Crown case was that by sending or causing Ms Cooper to send those emails, the appellant knowingly, either directly or through Ms Cooper, misrepresented his capital contribution in an attempt to induce a transfer of $95,592.40.

212. The Crown sought to demonstrate that the appellant must have knowingly misrepresented the extent of his capital contribution not by challenging each component part of the $95,592.40 claim but by: (a)asserting that the evidence proved the appellant must have known of the falsity of one particular claim that the appellant had made such a “capital contribution”; (b)suggesting that the validity of that particular claim must logically have formed part of the assertion of the validity of the claim for $95,592.40; and (c)accordingly, the appellant must have known that the claim for $95,592.40 was overstated, at least by the amount of the false claim.

213. The correctness of the logic of the Crown’s argument was not challenged in the argument before this Court. In any event the evidence suggested that the $95,592.40 was intended to be a balance figure identifying the total amount owed back to the appellant as at the day the claim was made, which confirms the logic of the Crown argument.⁸²

214. The evidence concerning the impugned particular capital contribution claim was as follows: (a)On 1 September 2015 $30,000 was transferred the Omega Lawyers Trust Account to Omega Lawyers General Account by a cheque drawn on the former account which was deposited into the latter account.⁸³ In relation to that cheque, the relevant trust account ledger recorded that the $30,000 had been paid by cheque to “Koolmoon Developments Pty Ltd C/- Omega Lawyers” and recorded the reason for the payment as “Funds disbursed to client”.⁸⁴ The appellant conceded he made the entries.⁸⁵ (b)That deposit into the Omega Lawyers General Account changed the account balance from $163.72 overdrawn, into a positive balance on 1 September 2015 of $29,836.28.⁸⁶ By 4 September 2015, some further deposits had been made and less than $800 in debits had occurred and the account balance was $40,895.99.⁸⁷ (c)On 4 September 2015 $30,000 was transferred from the Omega Lawyers General account to Koolmoon’s account.⁸⁸ The transfer was recorded in Omega Lawyers General Account as “Reimb wrong dep” and reduced the balance in that account from $40,695.99 to $10,695.99.⁸⁹ However it was recorded in Koolmoon’s bank statement as “AM loan to KM”.⁹⁰ (d)The transfer was recorded in the company’s MYOB records as “AM LOAN TO K” and “AM LOAN TO KOOLMOON DEVELOPMENTS”.⁹¹

215. In his oral evidence during cross-examination the appellant suggested that the transfer referred to in subparagraph (a) (which on its face was a transfer of $30,000 held in trust for Koolmoon into Omega Lawyers General Account, but still to be held on behalf of Koolmoon), was in fact intended to be a transfer to him personally because:⁹²

“No, but if you looked at the invoices and the documentation that attach to this transaction, this is actually $10,000 that’s refunded to me for the purchase of a brothel by James Cassell and $20,000 for the 14 months of work on that file. And that is what that payment is for.

So what was - - -?---And James asked me to do it that way because he didn’t want records that were indicating that.”

216. The problem with that evidence was that even if had been accepted, it would not meet the Crown’s argument and would not justify the $30,000 as a loan to Koolmoon and therefore the basis for a valid capital contribution claim.

The appellant’s argument

217. The appellant relied on earlier submissions concerning proof of lack of authority.

218. The appellant argued that he asked for this sum of money be paid to him because he asked his bookkeeper, Ms Cooper, to determine how much the company owed him. The appellant identified the entries, noted above, in one of his bank accounts which he said showed the funds he had lent to the company.

The respondent’s argument

219. The respondent relied on earlier submissions concerning proof of lack of authority.

220. Count 32 was a different type of transaction to the preceding counts. The Crown case was that the appellant knowingly misrepresented, either directly or through Ms Cooper, his capital contribution in an attempt to have MacGregor O'Reilly Solicitors transfer him $95,592.40.

221. It was ultimately not disputed that the appellant had made some capital contributions to the company, but the Crown relied on one particular entry to show that he knew that whatever figure the company’s records showed as owing to him would be inflated from its true position. That entry related to the $30,000 which was transferred from the Omega Lawyers General Account to the company’s account on 4 September 2015. The description in both the company’s bank accounts and records was “AM loan to KM”, which the appellant agreed meant a loan from him to the company.

222. The Crown case was that these funds were not a loan from the appellant to Koolmoon, but instead was already the company’s money. The Crown argued that the funds had been deposited into the legal practice’s general account on 1 September 2015 by cheque from the trust account. The relevant trust account statement referred to the reason for this as “Funds disbursed to client”, an entry the appellant accepted he had made. When these funds were transferred to the company’s account the law practice’s bank statement described this as “Reimb wrong dep”.

223. The respondent argued that from this evidence the jury were entitled to conclude that the appellant was misrepresenting that he had loaned $30,000 to the company. It followed that he must have known that whatever figure was recorded as owing to him from the company would be inflated by at least this amount and he was therefore knowingly trying to dishonestly induce MacGregor O'Reilly to transfer him funds. Consideration

224. The question here is whether it was open to the jury to regard the evidence as having excluded beyond reasonable doubt any reasonable hypothesis inconsistent with guilt. On the evidence before the jury the only potential reasonable hypothesis inconsistent with guilt was that the appellant believed the validity of the $95,592.40 claim, including because he believed the validity of the component part of it, namely the $30,000 loan. In truth the evidence did not establish any reason to doubt the Crown’s attack on the alleged loan made on 4 September 2015. It was open to the jury to find the hypothesis to have been excluded to the criminal standard.

225. I find that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this count. Appeal ground 3 fails in relation to this count.

Conclusions

226. The orders which should be made are: For counts 4 and 20: appeals allowed; convictions quashed; verdicts of acquittal entered.For counts 1, 2, 3, 6, 7, 8, 13, 32 and 33: appeals allowed; convictions quashed; retrials ordered.

227. CALLAGHAN J: I agree with the reasons of Bond JA and the orders proposed.