R v Muller - [2024] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

R v Muller [2024] QCA 261

PARTIES:

R
v
MULLER, Craig Anthony
(appellant)

FILE NOS:

CA No 84 of 2023
DC No 137 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 12 May 2023 (Morzone KC DCJ)

DELIVERED ON:

20 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2024

JUDGES:

Mullins P and Flanagan and Brown JJA

ORDERS:

1.   The appeal against conviction is allowed.

2.   The conviction on each count is set aside.

3.   A new trial is ordered on each count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of fraud following a trial by jury – where the appellant was charged as a party to the offending of a principal offender who pleaded guilty – whether the trial judge erred in failing to identify the knowledge, belief or intent which was said by the Crown to render the principal offender’s act dishonest and then in failing to instruct the jury to decide whether the principal offender had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest – whether the trial judge failed to adequately direct the jury about the Crown’s error in conflating directorship of a company with ownership of that company

Criminal Code (Qld), s 7, s 408C, s 668E

Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7, cited
R v Jayaweera[2022] QCA 103, cited
R v Lyons [2021] QCA 136, cited
R v Mirotsos [2022] QCA 76, considered
R v Tahiata [2024] QCA 59, cited

COUNSEL:

S C Holt KC for the appellant
A J Walklate for the respondent

SOLICITORS:

Jones + Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Brown JA.
FLANAGAN JA: I agree with Brown JA.
BROWN JA: Craig Muller, the appellant, and two other co-accused were charged with a number of fraud offences on a multi-count indictment. Following a seven-day trial, the appellant was found guilty of both offences for which he was charged. The counts pertaining to the appellant were:
Count 2:That on divers dates between the first day of March, 2016 and the twenty-eighth day of February, 2018 at Cairns and elsewhere in the State of Queensland, GRAEME CLIFFORD KING and CRAIG ANTHONY MULLER dishonestly gained a benefit for GRAEME CLIFFORD KING.
And GRAEME CLIFFORD KING was a director of Airfirst Pty Ltd.
And the yield to GRAEME CLIFFORD KING from the dishonesty was of a value of more than $30,000.
Count 4:That on divers dates between the first day of March, 2017 and the thirty-first day of December, 2017 at Cairns and elsewhere in the State of Queensland, GRAEME CLIFFORD KING and…

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 Muller

Details

AGLC: R v Muller [2024] QCA 261
Case: [2024] QCA 261
Decision Date: 20 December 2024

CaseChat Overview and Summary

The appellant, Craig Muller, appealed against his conviction for two counts of fraud, arguing that the trial judge failed to properly direct the jury on the legal requirements for determining dishonesty in the context of the offence. The appeal was heard in the court of appeal. The appellant contended that the trial judge should have identified and instructed the jury on the specific knowledge, belief, or intent attributed to Mr King, the principal offender, which the Crown claimed rendered his actions dishonest. Additionally, the appellant submitted that the trial judge did not adequately address the Crown's conflation of directorship with ownership, which impacted the jury's understanding of the appellant's state of mind.

The court needed to determine whether the trial judge's failure to properly direct the jury on the elements of dishonesty and the distinction between directorship and ownership amounted to a miscarriage of justice. The court considered whether the trial judge's omissions led to a significant risk that the jury made an error in concluding the appellant's guilt. This involved examining the adequacy of the jury directions and whether the misdirections were likely to have influenced the jury's decision.

The court found that the trial judge did indeed err by failing to adequately direct the jury on the elements of dishonesty in relation to Mr King's actions and the distinction between directorship and ownership. The misdirections were significant, as they related to core elements of the offence that the jury needed to consider. The court held that these errors were not minor or trivial but rather had the potential to lead to a miscarriage of justice by affecting the jury's understanding of the appellant's state of mind and the dishonesty of Mr King's actions. Consequently, the appeal was allowed, the convictions were set aside, and a new trial was ordered on each count.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The conviction on each count is set aside.

3. A new trial is ordered on each count.

Background

Background to the litigation

Under amended grounds of appeal, the appellant appeals his conviction on two grounds, namely that:(a)that there was a miscarriage of justice because the learned trial judge erred in failing to identify the knowledge, belief or intent which was said by the Crown to render Mr King’s act dishonest and then in failing to instruct the jury to decide whether Mr King had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest; and(b)there was a miscarriage of justice because the trial judge failed to adequately direct the jury about the significance to proof of the appellant’s state of mind of the Crown’s error conflating directorship of a company with ownership of that company.Factual background The appellant was a builder by trade. His company was Craig Muller Constructions Pty Ltd (CMC). The appellant, through CMC, was engaged as a sub-contractor for a company called Airfirst Pty Ltd (Airfirst). Airfirst was a panel contractor for Telstra which carried out electrical and air-conditioning installation. Airfirst was run by three co-directors: Ms Borzi, Mr Reid and Mr King. Share ownership was divided equally between Ms Borzi, Mr Reid and a corporate entity affiliated with Mr King, Four Kings (Qld) Pty Ltd (Four Kings).[1] Graeme King was Airfirst’s primary point of contact for sub-contractors for the Telstra work and approved or rejected quotes and organised for payment of invoices via Ms Borzi. In that role, he engaged CMC as a sub-contractor.[1]It was formally admitted that Four Kings held one third of the ordinary shares in Airfirst. Mr King and his wife were formally admitted as being directors of that entity. Airfirst did not compete with other possible contractors for jobs up to $250,000 for Telstra as it was a single select tenderer. For jobs greater than $250,000, Airfirst submitted a quote and competed with other contractors to win the work. Some of the quotes submitted by Airfirst to Telstra included quotes from sub-contractors, such as CMC for the electrical or any air-conditioning component, together with Airfirst’s own quote. The quote included Airfirst’s markup but did not include a breakdown of a sub-contractor’s quote to them. Mr King pleaded guilty to fraud in his role as a director of Airfirst. Broadly, he gave evidence at the appellant’s trial to the effect that he dishonestly operated a scheme whereby:(a)CMC provided quotes for carrying out Telstra work the subject of a tender;(b)he instructed CMC to inflate their quotes or invoices by a certain amount, beyond the amount for which they would have otherwise claimed payment, which was then submitted to Telstra by Airfirst as part of its quote for the work to be carried out; (c)after Telstra paid the invoice, Airfirst would then pay CMC the inflated amount;(d)an invoice for the markup, or “top-up amount”, which Mr King had advised should be made to CMC’s invoices was then the subject of an invoice created by Mr King and issued to CMC generally for payment to a company owned by Mr King, Four Kings, but in other instances Mr King directed a third party to invoice CMC for “consultation and design for Southport stairs” and a “specialised condenser” for Mr King’s motorcycle;(e)the invoices provided to CMC by Mr King would include a description for work not actually done or goods and services Four Kings never delivered; and(f)the appellant would transfer the top-up amount, as directed by Mr King. In at least one case the invoice was issued after the money had been transferred by the appellant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Muller [2024] QCA 261
PARTIES:	R v MULLER, Craig Anthony (appellant)
FILE NOS:	CA No 84 of 2023 DC No 137 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 12 May 2023 (Morzone KC DCJ)
DELIVERED ON:	20 December 2024
DELIVERED AT:	Brisbane
HEARING DATE:	14 October 2024
JUDGES:	Mullins P and Flanagan and Brown JJA
ORDERS:	1. The appeal against conviction is allowed. 2. The conviction on each count is set aside. 3. A new trial is ordered on each count.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of fraud following a trial by jury – where the appellant was charged as a party to the offending of a principal offender who pleaded guilty – whether the trial judge erred in failing to identify the knowledge, belief or intent which was said by the Crown to render the principal offender’s act dishonest and then in failing to instruct the jury to decide whether the principal offender had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest – whether the trial judge failed to adequately direct the jury about the Crown’s error in conflating directorship of a company with ownership of that company Criminal Code (Qld), s 7, s 408C, s 668E Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7, cited R v Jayaweera[2022] QCA 103, cited R v Lyons [2021] QCA 136, cited R v Mirotsos [2022] QCA 76, considered R v Tahiata [2024] QCA 59, cited
COUNSEL:	S C Holt KC for the appellant A J Walklate for the respondent
SOLICITORS:	Jones + Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent