R v Kingston - [2025] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kingston [2025] QCA 73

PARTIES:

R
v
KINGSTON, Lyndon Allen
(appellant/applicant)

FILE NO/S:

CA No 10 of 2025
CA No 269 of 2024
DC No 2180 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 12 November 2024; Date of Sentence: 10 December 2024 (Heaton KC DCJ)

DELIVERED ON:

16 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2025

JUDGES:

Mullins P and Bond and Boddice JJA

ORDERS:

1. The appeal against conviction is dismissed.

2. Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by a jury of two offences of dishonestly using his position as a director with the intention of gaining an advantage and two offences of providing false or misleading information to an auditor – where the appellant made an application for the discharge of the jury – where the trial judge refused the application to discharge the jury – whether the trial judge’s refusal to discharge the jury gave rise to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was sentenced to imprisonment for 18 months for count 2 and lesser, concurrent periods of imprisonment for counts 1, 5 and 6 – whether the trial judge erred in finding that the appellant’s use of his position was not for the purpose of accessing his unpaid remuneration entitlements in a tax effective way – whether the sentence is manifestly excessive

Corporations Act 2001 (Cth), s 184, s 1309

HCF v The Queen (2023) 97 ALJR 978 [2023] HCA 35, cited
Kwok v R (2007) 175 A Crim R 278; [2007] NSWCCA 281, cited
R v Bosscher [2024] QCA 253, cited
R v Fellowes; ex parte Commonwealth Director of Public Prosecutions[2018] QCA 238, cited

COUNSEL:

M J McCarthy KC for the appellant
R J Ranken SC, with G C S Morgan, for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Commonwealth) for the respondent

MULLINS P: I agree with Boddice JA.
BOND JA: I agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.
BODDICE JA: On 12 November 2024, a jury found the appellant guilty of two offences of dishonestly using his position as a director with the intention of gaining an advantage, contrary to s 184(2) of the Corporations Act 2001 (Cth) (the Act) (counts 1 and 2) and two offences of providing false or misleading information to an auditor, contrary to s 1309(1) of the Act (counts 5 and 6). The jury was unable to reach a verdict in respect of one offence of making a false document (count 3) and one offence of using a forged document (count…

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 Kingston

Details

AGLC: R v Kingston [2025] QCA 73
Case: [2025] QCA 73
Decision Date: 16 May 2025

CaseChat Overview and Summary

The case of R v Kingston involved an appeal against conviction and sentence. The appellant was convicted of two counts of dishonestly using his position as a director and two counts of providing false or misleading information to an auditor. The appellant sought to discharge the jury during the trial, but the trial judge refused his application. The appellant also appealed against his sentence, arguing it was manifestly excessive and that the trial judge erred in determining the purpose of his use of position.

The legal issues before the court were whether the trial judge's refusal to discharge the jury constituted a miscarriage of justice and whether the sentence imposed was manifestly excessive or contained an error in the trial judge's findings regarding the appellant's intentions. The court examined the trial judge's decision not to discharge the jury in light of the appellant's application and assessed the appropriateness of the sentence in relation to the appellant's conduct and the findings made by the trial judge.

The court found that the trial judge did not err in refusing the appellant's application to discharge the jury, and there was no miscarriage of justice. Regarding the sentence, the court held that the trial judge correctly considered the relevant factors and did not err in his findings about the appellant's use of position. The sentence was deemed to be within the appropriate range for the offences committed.

Accordingly, the appeal against conviction was dismissed, and leave to appeal against sentence was refused. The appellant's conviction and sentence stand as determined by the trial judge.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. Leave to appeal against sentence is refused.

Background

Background to the litigation

The appellant also seeks leave to appeal against sentence. Should leave be granted, the appellant relies on two grounds. First, that the sentence is manifestly excessive in all the circumstances. Second, that the trial judge erred in finding that the use of his position was not for the purpose of accessing unpaid remuneration entitlements in a tax effective way.Background The offences were committed between late 2015 and mid-2017. At the time, the appellant was aged between 48 and 49 years. He was aged 57 years at sentence. He had no prior criminal history. Each of the offences was committed at a time when the appellant held the position of Chief Executive Officer and Director of a community-based credit union. When the offending behaviour was uncovered in late 2017, the appellant lost that employment. Approximately two years later he was charged with the offences. An indictment was presented in November 2021. Thereafter there were three trials. The first resulted in a mistrial shortly after its commencement. The second resulted in the discharge of the jury during their deliberations. The third was conducted in October and November 2024. The jury returned its verdict on day 21 of that trial.Indictment Count 1 alleged that between 7 December 2015 and 13 June 2016, the appellant used his position as Director and CEO of the credit union dishonestly, with the intention of directly or indirectly gaining an advantage for himself or someone else. Count 1 was particularised as the appellant, on or about 2 June 2015, using his position to cause the credit union to enter into an agreement with Tuku (Qld) Pty Ltd (Tuku) for it to provide consulting or recruiting services to the credit union for a fee of up to $268,000. Further, that between 8 December 2015 and 27 May 2016, the appellant used his position to participate in the payment of four invoices, sent by Tuku to the credit union, for consulting services in the sum of $80,636.27 and that before the appellant participated in the payment of those invoices, he had an arrangement with the sole director of Tuku that a portion of the funds received be paid by Tuku to Lick Lick Pty Ltd (Lick Lick) and that he gained an advantage directly or indirectly from the use of his position as Director and CEO of the credit union, as Tuku paid a total of $29,940.27 in three amounts to Lick Lick. It was alleged that that participation was dishonest and with the intention that the appellant directly or indirectly gained an advantage for himself or Lick Lick, the trustee of Lick Lick Trust of which the appellant was a beneficiary and the controller of its bank accounts. Count 2 alleged that between 1 May 2016 and 1 June 2017, the appellant, being a Director and CEO of the credit union, used his position dishonestly with the intention of directly or indirectly gaining an advantage for himself or someone else. Count 2 was particularised as the appellant, in or about May 2016, using his position to cause the credit union to enter into a property portfolio service agreement with M2M Management Pty Ltd (M2M) under which the credit union was obliged to pay a base management fee of $385,000.

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 Kingston [2025] QCA 73
PARTIES:	R v KINGSTON, Lyndon Allen (appellant/applicant)
FILE NO/S:	CA No 10 of 2025 CA No 269 of 2024 DC No 2180 of 2024
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 12 November 2024; Date of Sentence: 10 December 2024 (Heaton KC DCJ)
DELIVERED ON:	16 May 2025
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2025
JUDGES:	Mullins P and Bond and Boddice JJA
ORDERS:	1. The appeal against conviction is dismissed. 2. Leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by a jury of two offences of dishonestly using his position as a director with the intention of gaining an advantage and two offences of providing false or misleading information to an auditor – where the appellant made an application for the discharge of the jury – where the trial judge refused the application to discharge the jury – whether the trial judge’s refusal to discharge the jury gave rise to a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was sentenced to imprisonment for 18 months for count 2 and lesser, concurrent periods of imprisonment for counts 1, 5 and 6 – whether the trial judge erred in finding that the appellant’s use of his position was not for the purpose of accessing his unpaid remuneration entitlements in a tax effective way – whether the sentence is manifestly excessive Corporations Act 2001 (Cth), s 184, s 1309 HCF v The Queen (2023) 97 ALJR 978 [2023] HCA 35, cited Kwok v R (2007) 175 A Crim R 278; [2007] NSWCCA 281, cited R v Bosscher [2024] QCA 253, cited R v Fellowes; ex parte Commonwealth Director of Public Prosecutions[2018] QCA 238, cited
COUNSEL:	M J McCarthy KC for the appellant R J Ranken SC, with G C S Morgan, for the respondent
SOLICITORS:	Fisher Dore Lawyers for the appellant Director of Public Prosecutions (Commonwealth) for the respondent