R v Kontos - [1997] QCA 206

IN THE COURT OF APPEAL	[1997] QCA 206
SUPREME COURT OF QUEENSLAND

C.A. No. 84 of 1997

Brisbane

[R. v. Kontos]

T H E Q U E E N

RICHARD ANTHONY STEPHEN KONTOS

Appellant/Applicant

McPherson JA
de Jersey J
Dowsett J

Judgment delivered 15 July 1997

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPEAL AGAINST CONVICTION ALLOWED IN PART. RETRIAL ORDERED ON COUNTS 3, 5, 10 AND 12. VERDICT OF NOT GUILTY ENTERED ON COUNTS 2, 4, 6, 7, 8, 9, 11, 13 AND 14. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE TO BE SET ASIDE. IN LIEU THEREOF, APPELLANT TO BE SENTENCED TO IMPRISONMENT FOR A PERIOD OF FIFTEEN MONTHS. PURSUANT TO S.19AC THE COURT IS OBLIGED TO MAKE A RECOGNISANCE RELEASE ORDER IN TERMS OF S.20(1)(b). APPELLANT TO BE RELEASED IN HIS OWN RECOGNISANCE IN THE SUM OF $500 AFTER SERVING SIX MONTHS, CONDITIONAL UPON HIS BEING OF GOOD BEHAVIOUR FOR A PERIOD OF 3 YEARS FROM THE DATE OF HIS ORIGINAL SENTENCE IN THE DISTRICT COURT.

CATCHWORDS:CRIMINAL LAW - appeal against convictions for offences of obtaining credit without informing the creditor that he was an undischarged bankrupt - s.269(1)(a) Bankruptcy Act 1966 - consideration of the meaning of the words "obtain credit".

Salomon v. Salomon & Co. Ltd [1897] AC 22
Ingram v. Little [1961] 1 QB 31
DPP v. Fowler (1984) 154 CLR 627

Counsel:	Mr R.M. Myers for the appellant
Ms C. Holmes for the respondent
Solicitors:	S.A. Sapuppo & Associates for the appellant
Commonwealth Director of Public Prosecutions for the respondent
Hearing date:	6 June 1997

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 15 July 1997

I agree with the reasons for judgment of Dowsett J. in this matter.
The appeal against conviction on count 1 must be dismissed. On each of counts 2, 3

to 10 and 12 to 14, the appeal against conviction is allowed and the conviction and verdict set aside. On each of counts 3, 5, 10 and 12, a new trial is ordered. In respect of each of the remaining counts in the indictment, verdict and judgment of acquittal is entered.

The application for leave to appeal against sentence on count 1 is granted. The appeal is allowed and the sentence set aside. In lieu, a sentence of imprisonment for 15 months is imposed on count 1. It is further ordered that, after serving imprisonment for six months, the appellant be released in his own recognisance in the sum of $500 conditional upon his being of good behaviour for a period of three years from the date of his original sentence in the District Court. The Registrar is directed to give the appellant a written explanation of this order pursuant to s.16F(2) of the Crimes Act.

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered 15 July 1997

I agree with the orders proposed by Dowsett J, and with the reasons he…

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 Kontos

Details

AGLC: R v Kontos [1997] QCA 206
Case: [1997] QCA 206
Decision Date: 15/07/1997

CaseChat Overview and Summary

The Court of Appeal considered an appeal against conviction and sentence by Richard Anthony Stephen Kontos, who was convicted of 13 counts of obtaining credit without disclosing his bankruptcy status, in breach of section 269(1)(a) of the Bankruptcy Act 1966. The appellant was acquitted on one count due to the prosecution's inability to call the relevant creditor. The central issue before the court was the interpretation of the phrase "obtain credit" in the context of the Bankruptcy Act and whether the appellant had indeed obtained credit on behalf of the companies he had incorporated, or whether he had acted as an individual. The court also had to consider whether the prosecution had discharged its onus of proving beyond reasonable doubt that the appellant had incurred personal liability to the creditors in question.

The Court of Appeal found that the trial judge's charge to the jury had been misdirected in some instances, particularly in relation to the concept of "lifting the corporate veil" and the notion of the appellant's companies acting as agents for him. The court emphasised that the prosecution must establish beyond reasonable doubt that the appellant had personally incurred a liability to the creditors in question. The court concluded that on some counts, there was sufficient evidence to support a conviction, while on others, the evidence was such that a conviction was unlikely due to the complainants being aware of the existence of the corporations at an early stage.

As a result, the Court of Appeal dismissed the appeal against conviction on count 1, allowed the appeal against conviction on counts 2, 3 to 10, and 12 to 14, and ordered a new trial on counts 3, 5, 10, and 12. The court also allowed the application for leave to appeal against sentence on count 1, set aside the original sentence, and imposed a sentence of imprisonment for a period of fifteen months. The appellant was to be released in his own recognisance in the sum of $500 after serving six months, conditional upon his being of good behaviour for a period of 3 years from the date of his original sentence in the District Court.

Orders