R v Kanaris - [2005] QCA 473

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kanaris [2005] QCA 473

PARTIES:

R
v
KANARIS, Peter
(appellant)

FILE NO/S:

CA No 103 of 2005
DC No 613 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2005; 25 November 2005

JUDGES:

Williams and Jerrard JJA and Chesterman J
Judgment of the Court

ORDER:

Appeal against conviction allowed only to the extent of setting aside the convictions on counts 20 and 21 and directing that verdicts of acquittal be entered on those counts, but otherwise dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant convicted by a jury of 18 counts of fraud of which five counts contained circumstances of aggravation and acquitted of three counts of fraud – trial judge directed the jury on each count individually – prosecution alleged the appellant made false representations and promises to induce the complainants to lend him money – representations revolved around land that the appellant asserted that he owned in Greece and of which an imminent sale would allow repayment to the complainants – appellant’s defence stated that the prosecution could not prove beyond a reasonable doubt that he did not own the stated land and a sale was not imminent – the prosecution did not need to prove the non-existence of the land if they could prove he was not using the borrowed money for its stated purpose – whether the judge properly put the appellant’s defence to the jury in summing up – whether the judge otherwise erred in summing up – whether on all of the evidence the jury was entitled to convict on 18 charges of fraud

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – count 20 involved a complainant asking another complainant friend to lend him money – appellant had requested complainant ask for the money and in fact received the money directly – whether the complainant was induced to lend money on the basis of the appellant’s dishonest promise or his friendship with the other complainant – whether it was open to the jury to conclude on the evidence that the appellant was guilty of fraud on this count

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – count 21 involved the appellant arranging an assignment of a judgment debt to a complainant for $60,000 on the basis that the debt would be bought back at $103,000 at the end of that year – appellant gave a personal guarantee and the purported sole director of the company…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kanaris

Details

AGLC: R v Kanaris [2005] QCA 473
Case: [2005] QCA 473
Decision Date: 16 December 2005

CaseChat Overview and Summary

The appeal in R v Kanaris involved the appellant who was convicted by a jury on 18 counts of fraud, with five of these counts involving circumstances of aggravation, while being acquitted on three counts of fraud. The prosecution alleged that the appellant made false representations and promises to induce complainants to lend him money, based on land he claimed to own in Greece, with an imminent sale to repay them. The appellant's defence argued that the prosecution failed to prove beyond a reasonable doubt that he did not own the land and that a sale was not imminent. The court had to consider whether the trial judge properly directed the jury on each count individually and if the summing up contained any errors. Additionally, the court examined whether the jury was entitled to convict on all 18 charges of fraud based on the evidence presented.

The court examined several legal issues, including whether the trial judge adequately conveyed the appellant's defence to the jury and whether there were any errors in the summing up. It was also necessary to determine if the jury could reasonably convict the appellant on counts 20 and 21, where the evidence was disputed. For count 20, the court had to decide whether the complainant was induced to lend money based on the appellant's dishonest promise or his friendship with another complainant. For count 21, the court considered whether the purported sole director of the company could bind the company and reassign the debt if there was a dispute over the debt's ownership. Furthermore, the court evaluated the admissibility of evidence related to the appellant's extensive casino gambling activity and whether it was relevant to the charges of fraud.

The Court of Appeal found that the trial judge did not adequately direct the jury on the appellant's defence and that there were errors in the summing up. However, these errors did not impact the jury's ability to convict on 16 of the 18 charges of fraud. Regarding counts 20 and 21, the court concluded that the evidence did not support the jury's verdict of guilt. The evidence on count 20 was insufficient to determine whether the complainant was induced by the appellant's dishonest promise or his friendship with another complainant, and on count 21, the evidence did not support the conclusion that the appellant was guilty of fraud. The court also held that the evidence of the appellant's casino gambling activity was admissible as it was relevant to the charges of fraud.

The Court of Appeal allowed the appeal against conviction only to the extent of setting aside the convictions on counts 20 and 21 and directing that verdicts of acquittal be entered on those counts. The appeal against sentence was dismissed, and the five-year sentence imposed on the appellant was deemed not manifestly excessive when excluding the two convictions that were set aside.

Orders

Orders of the court

Appeal against conviction allowed only to the extent of setting aside the convictions on counts 20 and 21 and directing that verdicts of acquittal be entered on those counts, but otherwise dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Kanaris [2005] QCA 473
PARTIES:	R v KANARIS, Peter (appellant)
FILE NO/S:	CA No 103 of 2005 DC No 613 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24 November 2005; 25 November 2005
JUDGES:	Williams and Jerrard JJA and Chesterman J Judgment of the Court
ORDER:	Appeal against conviction allowed only to the extent of setting aside the convictions on counts 20 and 21 and directing that verdicts of acquittal be entered on those counts, but otherwise dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant convicted by a jury of 18 counts of fraud of which five counts contained circumstances of aggravation and acquitted of three counts of fraud – trial judge directed the jury on each count individually – prosecution alleged the appellant made false representations and promises to induce the complainants to lend him money – representations revolved around land that the appellant asserted that he owned in Greece and of which an imminent sale would allow repayment to the complainants – appellant’s defence stated that the prosecution could not prove beyond a reasonable doubt that he did not own the stated land and a sale was not imminent – the prosecution did not need to prove the non-existence of the land if they could prove he was not using the borrowed money for its stated purpose – whether the judge properly put the appellant’s defence to the jury in summing up – whether the judge otherwise erred in summing up – whether on all of the evidence the jury was entitled to convict on 18 charges of fraud CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – count 20 involved a complainant asking another complainant friend to lend him money – appellant had requested complainant ask for the money and in fact received the money directly – whether the complainant was induced to lend money on the basis of the appellant’s dishonest promise or his friendship with the other complainant – whether it was open to the jury to conclude on the evidence that the appellant was guilty of fraud on this count CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – count 21 involved the appellant arranging an assignment of a judgment debt to a complainant for $60,000 on the basis that the debt would be bought back at $103,000 at the end of that year – appellant gave a personal guarantee and the purported sole director of the company…