R v Kostandy - [2024] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kostandy [2024] QCA 190

PARTIES:

R
v
KOSTANDY, Maged Sobhy Naguib
(appellant/applicant)

FILE NO/S:

CA No 105 of 2023
DC No 279 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport – Date of Conviction and Sentence: 5 June 2023 (Jackson KC DCJ)

DELIVERED ON:

11 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2024

JUDGES:

Mullins P and Dalton JA and Williams J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of five counts of fraud after a trial – where the appellant made various claims about the admissibility, relevance, and veracity of documents tendered below – where the appellant argued there were inconsistencies and contradictions between the evidence of the complainants – whether the jury must have had a reasonable doubt about the appellant’s guilt such that the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR – where the appellant asserted the prosecutor failed to call a witness who could give relevant evidence and did not tender exculpatory data from the appellant’s phone – whether the prosecutor breached their duty of fairness and acted improperly

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – whether the trial judge erred in not putting the defence of honest claim of right to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – SUMMING UP – whether the summing up might have caused the jury to give more weight to the documents tendered against the appellant than they otherwise would have such that a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant claimed that his trial counsel failed to: tender a document at trial contrary to his instructions; ask for an adjournment to properly examine his phone data; allow him to give evidence at trial; call a witness; and subpoena a witness’s phone records – whether a miscarriage of justice occurred as a result of the conduct of defence counsel

Criminal Code (Qld), s 408(1)(c), s 408(1)(d)

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v McNicol (2022) 10 QR 546; [2022] QSC 67, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
M P Le Grand for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Dalton JA.
DALTON JA: Mr Kostandy was convicted of five counts of fraud after a trial in the District Court in May 2023. He acts for himself on this appeal and raises six grounds of appeal. The first is…

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 Kostandy

Details

AGLC: R v Kostandy [2024] QCA 190
Case: [2024] QCA 190
Decision Date: 11 October 2024

CaseChat Overview and Summary

In the case of R v Kostandy, the appellant was convicted of five counts of fraud after a trial in the County Court of Victoria. The appeal was brought against the conviction and sentence. The appellant argued that the verdict was unreasonable or not supportable having regard to the evidence, and that there were procedural errors in the conduct of the prosecutor and defence counsel, as well as misdirections and non-directions by the trial judge. The appeal was dismissed by the Court of Appeal, which found that the verdict was not unreasonable and that no miscarriage of justice had occurred.

The legal issues before the court included whether the verdict was unreasonable or not supportable having regard to the evidence, whether the prosecutor breached their duty of fairness and acted improperly, whether the trial judge erred in not putting the defence of honest claim of right to the jury, whether the summing up might have caused the jury to give more weight to the documents tendered against the appellant than they otherwise would have, and whether a miscarriage of justice occurred as a result of the conduct of defence counsel. The court found that the verdict was not unreasonable and that no miscarriage of justice had occurred.

The court found that the verdict was not unreasonable or not supportable having regard to the evidence, despite the appellant's claims of inconsistencies and contradictions in the evidence of the complainants. The court held that the jury was entitled to reject the appellant's evidence and to accept the evidence of the complainants, and that there was no basis for the court to interfere with the verdict. The court also found that the prosecutor did not breach their duty of fairness and did not act improperly, that the trial judge did not err in not putting the defence of honest claim of right to the jury, and that the summing up did not cause the jury to give more weight to the documents tendered against the appellant than they otherwise would have. Finally, the court found that no miscarriage of justice occurred as a result of the conduct of defence counsel.

The appeal was dismissed, and the convictions and sentences imposed by the County Court were upheld. The appellant's claims of error and misconduct by the prosecutor, trial judge, and defence counsel were rejected by the Court of Appeal, which found that the verdict was not unreasonable and that no miscarriage of justice had occurred. The convictions and sentences imposed by the County Court were therefore affirmed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant did not give evidence or call evidence. The case advanced on his behalf through cross-examination was that the complainants had paid money to him, so that he could facilitate that money being paid on their behalf, or at their request, to persons (unspecified) in Egypt. The appellant was Egyptian, and was friendly with all the complainants. They were all part of the same church community in Australia. The appellant submitted that all the complainants, Steven Haigh, and some other Crown witnesses, were simply lying about all the details of his having pretended to have them invest in the medical supplies and adult diaper businesses. The address on behalf of the appellant concentrated upon a screenshot of text messages, said to have been exchanged between the appellant and a witness Lillian Ibrahim, which referred to monies to be paid by the appellant to Lillian Ibrahim’s relative in Egypt, and upon discrepancies in the detail of the evidence given by Crown witnesses.The EvidenceAdmissions As noted above, it was admitted in the case that the transfers of money from the complainants to the appellant relied upon by the Crown did in fact take place. A statement of agreed facts annexed the bank accounts which showed the relevant transfers. The statement of agreed facts also showed that the appellant opened a bank account in the name JAC Trade Pty Ltd on 12 June 2014 and that the appellant was the sole signatory on that account. It was admitted that the appellant had access to that bank account for the entire time it existed and that George Ibrahim and Emil Botros had access to it between 13 March 2019 and 15 March 2019. The statement of agreed facts also admitted that the appellant had an account with St George Bank and another account with the Commonwealth Bank. Extracts from those account statements were annexed. They showed payments made from the JAC Trade account into the St George account, which payments were admitted to have been made by the appellant. The statements also showed payments made by the complainants into the Commonwealth Bank account. It was admitted that Chemist Warehouse had no record of any dealings, agreements or transactions with JAC Trade Pty Ltd or the appellant; did not make a payment of $81,450 to JAC Trade Pty Ltd on 5 November 2018; did not make a payment of $81,450 to JAC Trade Pty Ltd on 19 November 2018; did not have any records of creating or using the email addresses Steve.h@chemistwh.com or Domain@chemistwh.com, or the mobile telephone number 0407 122 440. George Ibrahim was the first witness called by the Crown. He was a registered medical practitioner aged 67. He was Egyptian and came to Australia in 1983. He knew the appellant through the Egyptian community and the Coptic Church. The appellant told him he was Egyptian with permanent residency in Australia. He said he was a pharmacist. The appellant said he spent most of his time in Egypt, but came to Australia frequently in order to keep his permanent residency. His family and the appellant’s family were close friends. They went on holidays together. The appellant told him he was a partner in a pharmaceutical company which made medications, and also that he had a medical supply company. Both those businesses were in Egypt and the appellant said he ran them through a company called JAC Trade.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Kostandy [2024] QCA 190
PARTIES:	R v KOSTANDY, Maged Sobhy Naguib (appellant/applicant)
FILE NO/S:	CA No 105 of 2023 DC No 279 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport – Date of Conviction and Sentence: 5 June 2023 (Jackson KC DCJ)
DELIVERED ON:	11 October 2024
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2024
JUDGES:	Mullins P and Dalton JA and Williams J
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of five counts of fraud after a trial – where the appellant made various claims about the admissibility, relevance, and veracity of documents tendered below – where the appellant argued there were inconsistencies and contradictions between the evidence of the complainants – whether the jury must have had a reasonable doubt about the appellant’s guilt such that the verdict was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR – where the appellant asserted the prosecutor failed to call a witness who could give relevant evidence and did not tender exculpatory data from the appellant’s phone – whether the prosecutor breached their duty of fairness and acted improperly CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – whether the trial judge erred in not putting the defence of honest claim of right to the jury CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – SUMMING UP – whether the summing up might have caused the jury to give more weight to the documents tendered against the appellant than they otherwise would have such that a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant claimed that his trial counsel failed to: tender a document at trial contrary to his instructions; ask for an adjournment to properly examine his phone data; allow him to give evidence at trial; call a witness; and subpoena a witness’s phone records – whether a miscarriage of justice occurred as a result of the conduct of defence counsel Criminal Code (Qld), s 408(1)(c), s 408(1)(d) Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited R v McNicol (2022) 10 QR 546; [2022] QSC 67, cited
COUNSEL:	The appellant/applicant appeared on his own behalf M P Le Grand for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent