R v Young

Case [2021] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v Young [2021] QCA 131

PARTIES:

R
v
YOUNG, Andrew Eric
(appellant/applicant)

FILE NO/S:

CA No 26 of 2020
CA No 42 of 2020
DC No 1503 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 10 January 2020; Date of Sentence: 7 February 2020 (Devereaux SC DCJ)

DELIVERED ON:

15 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

20-21 August 2020

JUDGES:

Fraser and Mullins JJA and North J

ORDERS:

1.   Appeal against conviction is allowed.

2.   Convictions on all counts are set aside.

3.   A new trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of fraud with a circumstance of aggravation – where a corporate restructure split multiple new and existing companies into two groups: Orchard Group and Corporate Group – where before the restructure a company EDIS in the Corporate Group operated the spare parts business for the appliances sold by the Orchard Group – where as part of the restructure the business of importing and sale of appliances under the Kleenmaid brand was transferred to EDIS – where the appellant was at all relevant times a director of each of the companies in the Orchard Group, but was not a director or the secretary of any of the companies of the Corporate Group at the time of the restructure – where EDIS by its director Mr Armstrong made a loan application to its bank to assist in the takeover of the appliance business without disclosing the financial information of the Orchard Group – where the appellant had no contact with the bank in respect of the loan application – where the appellant refused to disclose financial statements of the Orchard Group to the bank and instructed Mr Armstrong to advise the bank that they would not be disclosed – where that was conveyed by Mr Armstrong to the bank – where EDIS did not disclose during the loan application that the deposits paid by customers for the goods sold by EDIS would be paid to Order House, which was a company in the Orchard Group, and held by Order House until delivery of the appliances was required – where that arrangement with Order House made the financial statements of the Orchard Group relevant to EDIS’ loan application – where the appellant knew and approved of the course taken by Mr Armstrong in respect of EDIS’ loan application – whether the appellant counselled or procured Mr Armstrong to commit the offence of fraud – whether the verdict of guilty was unreasonable or unsupported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of 17 counts of insolvent trading concerning debts incurred by EDIS between 3 July 2008 and 8 April 2009 (the relevant period) –…

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Details
AGLC
R v Young [2021] QCA 131
Case
[2021] QCA 131
Decision Date

CaseChat Overview and Summary

In the case of R v Young, the appellant, who was convicted of various charges including fraud and insolvent trading, sought to appeal against his convictions. The appellant's appeal raised numerous grounds, including whether the verdict was unreasonable or unsupported by the evidence, whether there were misdirections or non-directions by the trial judge, and whether the admission of certain evidence was erroneous. The central issue was whether the verdict of the jury was reasonable and supported by the evidence presented during the trial.

The court examined the evidence and legal principles to determine if the verdict was indeed unreasonable or if there were procedural errors that warranted a new trial. The court considered whether the appellant's actions amounted to the offences charged, including whether he was a de facto director during the relevant period and whether his failure to prevent EDIS from incurring debts was dishonest. The court also scrutinised whether the trial judge's directions to the jury were correct and if there were any errors in admitting evidence, particularly expert opinions on insolvency. Additionally, the court assessed whether the appellant's fitness to be tried was adequately determined.

The court found that while some of the grounds of appeal did not succeed in setting aside the convictions, there were significant issues that warranted a new trial. Specifically, the court identified misdirections and procedural errors that undermined the fairness of the trial. Consequently, the court concluded that the appeal against conviction should be allowed, the convictions set aside, and a new trial ordered for certain counts.

The court's decision underscored the importance of procedural fairness and the accuracy of legal directions in criminal trials. It highlighted the necessity for a thorough examination of the evidence and legal principles to ensure that justice is served and that the verdict is both reasonable and supported by the evidence.

Orders

Orders of the court

1. Appeal against conviction is allowed.

2. Convictions on all counts are set aside.

3. A new trial is ordered.

Background

Background to the litigation

The conclusion that I have reached on ground 1 which is set out below is that the appellant would not have succeeded on the appeal on that ground in respect of any of the counts. That has the consequence that there should be a new trial of counts 1-17, 19 and 20. I have considered grounds 2, 3 and 4 in case the issues raised by those grounds arise on any new trial.Background Apart from count 20 which was a charge on the indictment against the appellant alone, the appellant had been charged jointly with his brother Mr Bradley Young and Mr Gary Armstrong. Mr Armstrong pleaded guilty to counts 1, 2 and 3 and was a witness in the trial against the appellant. Mr Bradley Young’s trial preceded the appellant’s trial and he was found guilty of counts 1-17 and 19. The charges arose out of the corporate restructure of the Kleenmaid business. The following summary is taken generally from the admissions made by the appellant pursuant to s 644 of the Criminal Code (Qld) (the Code). The appellant founded the Kleenmaid business in 1980. Initially it involved distribution of spare parts for appliances (spare parts business) and traded through Orchard KM Pty Ltd (Orchard KM). The business gradually expanded. In 1985, the business commenced importing appliances for sale to general retailers (appliance business). In 1996, the business began operating company owned stores under the Kleenmaid brand. In 2001, the business began opening franchised stores under the Kleenmaid brand. The spare parts business was sold by Orchard KM to EDIS Service Logistics Pty Ltd (EDIS) in 2001. Prior to 2007, the appellant suffered a heart condition requiring a triple bypass and, by 2007, he wanted to reduce his involvement in the business. Prior to 2007, the main trading entity of the Kleenmaid business was the Orchard Unit Trust. Kleenmaid Holdings Pty Ltd (Kleenmaid Holdings) held 100 per cent of the 20 units in the Orchard Unit Trust. Orchard KM was the trustee of the Orchard Unit Trust and in that capacity operated the appliances business, provided warranty to customers and provided exclusive rights to EDIS to supply Kleenmaid spare parts. From 2005 Kleenmaid Retail Pty Ltd (Kleenmaid Retail) had operational control of Kleenmaid non-franchised stores and Orchard KM (as trustee for the Orchard Unit Trust) was 100 per cent shareholder in Kleenmaid Retail. Kleenmaid Customer Solutions Pty Ltd (KCS) was established in 2005 as an after sales service for in-warranty products and out-of-warranty products. Initially, Orchard KM owned 100 per cent of the shares in KCS, but in May 2006 Orchard KM sold its shares in KCS to EDIS. The restructure of the Kleenmaid business was undertaken gradually in 2007. The restructure involved nine new companies with an additional company, My Kleenmaid Rewards Pty Ltd (Rewards) being incorporated later in 2009. The restructure involved a split of the existing and new companies into two groups: a group with Kleenmaid Holdings as the head company (Orchard Group) and a group with a new company Kleenmaid Corporate Pty Ltd (Kleenmaid Corporate) as the head company (Corporate Group). The core operations of the Kleenmaid business were transferred from the Orchard Group to the Corporate Group, including the operation of the appliance business from the Orchard Unit Trust to EDIS. EDIS commenced operating the appliance business on 1 December 2007.

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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