SUPREME COURT OF QUEENSLAND
CITATION: R v Mirotsos [2022] QCA 76 PARTIES:
R v MIROTSOS, Anthony George
(appellant/applicant) FILE NO/S: CA No 68 of 2021
DC No 122 of 2021DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction & Sentence ORIGINATING District Court at Cairns – Date of Conviction & Sentence: COURT: 16 March 2021 (Chief Judge Devereaux SC) DELIVERED ON: 13 May 2022 DELIVERED AT: Brisbane HEARING DATE: 23 November 2021 JUDGES: Sofronoff P and Bond JA and Callaghan J ORDERS:
1. As to counts 4 and 20: (a) appeals allowed;
(b) convictions quashed;
(c) verdicts of acquittal entered.
2. As to counts 1, 2, 3, 6, 7, 8, 13, 32 and 33:
(a) appeals allowed;
(b) convictions quashed;
(c) retrials ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the
appellant was found guilty by a jury of 11 counts of fraud as a director under s 408C of the Criminal Code – where the appellant was convicted of dishonestly applying company money to his own use and dishonestly gaining or attempting to
gain company money for himself – where the Crown case on dishonesty was particularised by reference to whether the relevant conduct was authorised through express or implied consent or was not for one or more of four legitimate company purposes identified in a pre-incorporation company document
– whether the jury was adequately instructed about the mental element of dishonesty – whether the trial judge erred in failing to identify the knowledge, belief or intent which was said by the Crown to render the relevant act dishonest and whether the trial judge failed to instruct the jury to decide whether the
appellant had that knowledge, belief or intent – whether a miscarriage of justice occurred – whether the proviso could
be applied CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR
CIRCUMSTANCES AMOUNTING TO MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty by a jury of 11 counts of fraud as a director under s 408C of the Criminal Code – where the appellant was convicted of dishonestly applying company money to his own use and dishonestly gaining or attempting to
gain company money for himself – where the trial judge directed the jury that the evidence of two witnesses was relevant to all counts of fraud – where the appellant contended that the evidence of the two witnesses was irrelevant to one of the counts of fraud – whether the jury was erroneously directed that the evidence was relevant to all counts – whether
a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was found guilty by a jury of 11 counts of fraud as a director under s 408C of the Criminal Code – where the appellant was convicted of dishonestly…
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Details
- AGLC
- R v Mirotsos [2022] QCA 76
- Case
- [2022] QCA 76
- Decision Date
CaseChat Overview and Summary
In the case of R v Mirotsos, the appellant contested his conviction and sentence on appeal, arguing that the trial judge had misdirected the jury on the element of dishonesty, which amounted to a miscarriage of justice. The appeal was heard by the Court of Appeal in New South Wales, which considered whether the trial judge's directions adequately guided the jury in assessing the appellant's evidence and the overall proof of dishonesty. The crux of the appeal hinged on the trial judge's directions concerning the jury's evaluation of the appellant's evidence and the subsequent assessment of the remaining evidence to determine guilt beyond reasonable doubt.
The legal issues before the court involved whether the trial judge's directions were sufficient to prevent the jury from erroneously rejecting the appellant's evidence and then concluding guilt without properly assessing whether the remaining evidence established the requisite dishonest state of mind. The court examined three specific passages of the directions to determine if they sufficiently addressed the risk of misdirection. The court found that the directions, while generally appropriate, did not adequately prevent the jury from leaping to a conclusion of guilt after rejecting the appellant's evidence. Specifically, the directions did not clearly emphasise that the jury must scrutinise the remaining evidence to ensure it proved the appellant's dishonesty beyond reasonable doubt if they found his evidence unconvincing.
The Court of Appeal concluded that the trial judge's directions did not sufficiently mitigate the risk of misdirection by the jury. The inadequate directions meant that there was a significant risk the jury might improperly reject the appellant's evidence and then improperly conclude guilt based on the remaining evidence without ensuring that it proved the requisite dishonest state of mind. The court found that these deficiencies amounted to a miscarriage of justice, necessitating a new trial. The judges unanimously agreed on this assessment and proposed the appropriate orders for the case.
The legal issues before the court involved whether the trial judge's directions were sufficient to prevent the jury from erroneously rejecting the appellant's evidence and then concluding guilt without properly assessing whether the remaining evidence established the requisite dishonest state of mind. The court examined three specific passages of the directions to determine if they sufficiently addressed the risk of misdirection. The court found that the directions, while generally appropriate, did not adequately prevent the jury from leaping to a conclusion of guilt after rejecting the appellant's evidence. Specifically, the directions did not clearly emphasise that the jury must scrutinise the remaining evidence to ensure it proved the appellant's dishonesty beyond reasonable doubt if they found his evidence unconvincing.
The Court of Appeal concluded that the trial judge's directions did not sufficiently mitigate the risk of misdirection by the jury. The inadequate directions meant that there was a significant risk the jury might improperly reject the appellant's evidence and then improperly conclude guilt based on the remaining evidence without ensuring that it proved the requisite dishonest state of mind. The court found that these deficiencies amounted to a miscarriage of justice, necessitating a new trial. The judges unanimously agreed on this assessment and proposed the appropriate orders for the case.
Orders
Orders of the court
1.
As to counts 4 and 20:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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. Three passages of the directions should be referenced. First, the general direction not to leap from a rejection of the appellant’s evidence to a conclusion of guilt in these terms:[5] [5] AR at 104.30–105.2. “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.” Second, the direction about the approach to be taken to a circumstantial case concerning dishonesty:[6] [6] AR at 130.11–42. “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.”
Decision
Reasons for decision
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 The orders which should be made are: CALLAGHAN J: I agree with the reasons of Bond JA and the orders proposed.
Ratio Decidendi
Legal Principle Established
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