R v Kostandy[2024] QCA 190

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Dalton JA.
2. [2]
   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 that his conviction was unreasonable and could not be supported having regard to the evidence.  I will deal with this ground first.  The other grounds allege specific errors and incompetence of trial counsel.  Although the notice of appeal says that the appellant has an application for leave to appeal his sentence, he made no submissions in that regard.

Ground 1: Unreasonable Verdict

3. [3]
   The charges against the appellant were pursuant to s 408C(1)(c) and (d) of the Criminal Code.  Four were that he dishonestly induced people (who were his friends) to deliver bank credits to him in the value of at least $100,000.  One was that he dishonestly induced another friend to give him a bank credit to a value of at least $30,000.
4. [4]
   Count 1 concerned the appellant telling George and Lillian Ibrahim, in 2017, that he wanted funding for a business venture which would involve his purchasing medical supplies overseas; getting approval from the Therapeutic Goods Administration (TGA) to sell the drugs in Australia, and then importing and selling the drugs into Australia.  In response George and Lillian Ibrahim transferred the appellant $100,000.  They were told that the TGA approvals would take approximately 12 months, so they did not expect any return on their investment in the short term.
5. [5]
   Count 2 concerned the appellant approaching Emad Tadros, in October 2018 to invest in the same medical supplies importation scheme.  Mr Tadros invested $30,000.
6. [6]
   Count 3 concerned the appellant dishonestly inducing George and Lillian Ibrahim to give him bank credits at least to the value of $100,000 at the beginning of 2018.  They paid the money thinking they were investing in the appellant’s business venture to import adult diapers into Australia.  The appellant said that he had a contract with Chemist Warehouse to supply them with the diapers; could have them made cheaply in Turkey, and thus make a good profit.
7. [7]
   Count 4 concerned the appellant dishonestly inducing Emad Tadros to invest an amount of over $100,000 in the adult diaper scheme.
8. [8]
   Count 5 concerned the appellant dishonestly inducing Emil Botros to pay him more than $100,000 in relation to a supposed investment in the adult diaper scheme.

The Cases made at Trial

9. [9]
   The Crown case was that there never were any business ventures in respect of importing medical supplies or adult diapers, and that bank records showed that after the complainants deposited money into accounts as directed by the appellant, he took that money and used it for his own purposes.  It was admitted in the trial that the complainants did in fact make the payments to the appellant which the Crown relied upon, in the sums the Crown alleged.  The Crown case was that as there were in fact no businesses, the payments were dishonestly induced.
10. [10]
    The Crown relied upon similar fact evidence.  It said that the representations made by the appellant to each of the complainants were strikingly similar, making it more likely that what each of them said was credible.
11. [11]
    The Crown also relied upon conduct of the appellant which occurred after the various inducements, which was indicative of the appellant’s guilt.  This consisted of: 1) provision of documents appearing to belong to a legitimate business venture; 2) arranging for one Steven Haigh to speak to the complainants pretending to be from Chemist Warehouse, to give the impression that there was a supply arrangement between the appellant and Chemist Warehouse; 3) providing false email addresses to the Ibrahims and Mr Tadros, which addresses purported to be the business email addresses of Steven Haigh at Chemist Warehouse; 4) producing false bank statements and invoices to make it appear that funds had been received by the adult diaper business from Chemist Warehouse; 5) closing the main bank account into which the complainants had paid money after being confronted about the lack of any deposits by Chemist Warehouse into that account, and 6) repaying small sums of money to each of the complainants after they confronted him about their suspicions, and promising to repay the remaining monies.
12. [12]
    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 Evidence

Admissions

13. [13]
    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.
14. [14]
    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.
15. [15]
    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 [email protected] or [email protected], or the mobile telephone number 0407 122 440.
16. [16]
    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.
17. [17]
    In December 2017 Dr Ibrahim decided to go into business with the appellant importing over‑the‑counter medications into Australia.  Dr Ibrahim was considering retirement, or partial retirement, and the idea was attractive to him as a way of continuing to make money as he reduced the days he spent working in medical practice.  As well, his son was studying pharmacy and he thought that the establishment of the business might be good for his son.  The appellant told him that the importation business would be profitable and that he would have “a very comfortable retirement”.  Dr Ibrahim had no experience in bringing medications into Australia, but the appellant claimed to have, because he claimed to be a partner in a pharmaceutical manufacturing company in Egypt.  The appellant told Dr Ibrahim that he would have a one-third share in the business, and another friend of the appellant’s, a pharmacist from Melbourne, would have a third share as well.  The appellant would get everything necessary from overseas and get the necessary TGA approvals and do “all the paperwork”.  Dr Ibrahim did not know, or ever communicate with, the pharmacist in Melbourne.
18. [18]
    To get approval from the TGA, files for each medication to be imported would have to be obtained.  These files would contain all the safety trial information necessary to present to the TGA.  The appellant and Dr Ibrahim considered medications, and selected five over-the-counter medications for which to seek approval from the TGA.  The plan was that after the TGA approved the sale of their medications, they could produce them either in Egypt or India and import them.  In selecting the five medications they consulted with Dr Ibrahim’s son, Bichoy.  Bichoy also looked into the costs of medications in Australia.
19. [19]
    The appellant initially told Dr Ibrahim that the cost of importing the files to gain TGA approval would be around $600,000.  Later, the appellant told him that his one-third share was $175,000.  Dr Ibrahim’s wife Lillian transferred that amount of money to the appellant.  Prior to that, the appellant had told him that the necessary files were “ready to be sent to him”.
20. [20]
    The appellant told Dr Ibrahim that it would take up to 12 months to get TGA approval.  After the initial transfer of $175,000, the appellant told him to make another payment of about $47,000, which was his share of the TGA application fee.  At some point the appellant showed Dr Ibrahim a paper which evidenced the appellant dealing with the TGA, Dr Ibrahim thought it was a receipt.  After he paid the $47,000 he did not have a copy of the paper.  The payment of $47,000 to the appellant was made by Dr Ibrahim’s wife, Lillian.
21. [21]
    After their dealings in relation to the importation of medical files and supplies, the appellant mentioned to Dr Ibrahim that he was dealing with a Turkish company which manufactured adult diapers and that he had been importing those diapers into Egypt and selling them for a fairly good profit.  The appellant thought that “we could do that here in Australia while we’re waiting for the TGA approval”.  The appellant said his pharmacist friend in Victoria was also interested in doing that as he dealt with several retirement homes in Melbourne, where he provided medication for the residents and was hopeful of being able to introduce the adult diapers to the nursing homes as well.
22. [22]
    Dr Ibrahim had no experience in the adult diaper industry.  The appellant had a plan to import three containers to Australia initially, one to Victoria, one to Sydney and one to the Gold Coast.  The plan was that the appellant’s pharmacist friend would distribute the container which arrived in Melbourne; the appellant would distribute the container which arrived on the Gold Coast, and Dr Ibrahim would be responsible for distributing the container which arrived in Sydney.  Dr Ibrahim had two residential units in Sydney.  One was vacant.  So he thought that the product could be stored in the vacant unit.  Furthermore, a friend, Robyn Malzard, and her husband, were the tenants in the other unit.  She and her husband were sales representatives.  Dr Ibrahim contacted her and they were happy to distribute the products in New South Wales.
23. [23]
    The appellant said that he thought there would be a 50 to 60 per cent profit on the diapers, as he would get them at “a fairly good price” from Turkey.  The appellant said he had been dealing with the manufacturer in Turkey for years.  He had very good trade terms with the manufacturer.  The trade terms involved him having to pay 30 per cent of the value of the three containers up-front, together with the cost of packaging.  He asked Dr Ibrahim for his share in that amount of money and Dr Ibrahim instructed his wife Lillian to pay that.  She did.
24. [24]
    Dr Ibrahim trusted the appellant because he seemed to be wealthy and a highly respected businessman.  He saw no documentation for the adult diapers business before making his initial payment.  The appellant did show Dr Ibrahim some samples, which he said he got from Turkey.  He thought they were “fairly good quality” and had no doubt that the business of importing them would go well.
25. [25]
    After payment, the appellant said his pharmacist friend in Victoria pulled out.  This meant that Dr Ibrahim and the appellant would have to distribute the contents of the third container themselves and to do so, would have to rent a warehouse, which was going to cost extra money.  Then the appellant came up with the idea that he would approach a Chemist Warehouse manager who he knew through his children’s school.  He would ask the manager whether or not Chemist Warehouse would take all the adult diapers in all three containers.  That would mean that the appellant and Dr Ibrahim did not have to worry about storing and distributing the product.  They would probably make less profit, but the proposal would result in a faster way of getting their money back with some profit.
26. [26]
    At this time Dr Ibrahim understood from the appellant that the containers were about to arrive in Australia.  The appellant introduced Dr Ibrahim to Steven, a person who he said was a purchase manager from Chemist Warehouse.  Steven said that Chemist Warehouse would take 12 containers of diapers per year and pay according to a payment plan.  The appellant brought a contract which he said was from Chemist Warehouse and asked Dr Ibrahim to sign it.  He identified the document which became exhibit 1 as an unsigned copy of the contract which he signed with Chemist Warehouse.  Dr Ibrahim understood the contract came from Chemist Warehouse.  To him it looked like a legal document and he had no suspicions about it.  He signed the contract and initialled each page and also had his son sign it with him.  He did not take a copy of the signed contract.
27. [27]
    After Dr Ibrahim signed the contract with Chemist Warehouse, the appellant told him that the first shipment had arrived and that Chemist Warehouse had received it and would start paying in accordance with the contractual payment plan.  At the end of 2018 the appellant told him that Chemist Warehouse had paid the first two payments under the contract, each in the sum of $81,450.  At that stage Dr Ibrahim had no access to the JAC Trade account, but the appellant showed Dr Ibrahim a bank statement from the account showing the first two payments.  Dr Ibrahim did not take a copy of the bank statement.  Dr Ibrahim identified two payments apparently on a JAC Trade bank statement, each was $81,450.  One was made on 5 November 2018 and the other on 19 November 2018.  Each payment line on the statement had the description “Chemist WHV”.  They were the payments which the appellant had shown him.  The appellant told Dr Ibrahim that he would withdraw those payments and pay the money to the factory in Turkey to pay the remaining 70 per cent of the purchase price.  Dr Ibrahim said that he was not expecting to get any profit from the diaper imports until “the final three containers or something like that”.
28. [28]
    Dr Ibrahim asked the appellant for a copy of the contract and of the account statement “and all that”.  The appellant came to Dr Ibrahim’s house one day; Dr Ibrahim’s wife, Lillian, was there.  The appellant brought a file with those documents and some papers about the TGA, receipts from the TGA.  The appellant asked him to leave those documents and he agreed, but on his way back out he took the file with him. 
29. [29]
    After the initial meeting between Dr Ibrahim and Steven, the person he understood was the purchase manager from Chemist Warehouse, the appellant told him that Chemist Warehouse had almost sold the first shipment of diapers and Chemist Warehouse wanted the second shipment to arrive earlier.  The appellant was going to negotiate this with the factory.  In a subsequent conversation the appellant said that he had successfully negotiated that but, as the price for the early delivery, he and Dr Ibrahim had to pay 50 per cent of the purchase price for the three containers, rather than just 30 per cent.  That meant that they had to provide another $250,000.
30. [30]
    Dr Ibrahim had difficulty providing those funds.  The appellant said that Steven from Chemist Warehouse threatened to start sourcing diapers from another provider and said that the appellant and Dr Ibrahim might be penalised according to the contract they had signed.  The appellant had no more money to put into the business, so Dr Ibrahim approached his wife’s cousin who lent him $100,000.  Dr Ibrahim gave this to the appellant and told him, as was the case, that he had borrowed it at a rate of 10 per cent interest.  Prior to giving that sum of $100,000 to the appellant, Dr Ibrahim spoke to Steven.  He spoke to him on the appellant’s mobile phone because Dr Ibrahim did not have the phone number for Steven.  Dr Ibrahim watched the appellant ring Steven and then the appellant handed his phone to Dr Ibrahim.  Steven was “very abrupt and was not nice at all”.  He refused to defer the second shipment and insisted that the contract which Dr Ibrahim had signed governed their rights and that it provided for penalties if the appellant and Dr Ibrahim did not abide by it.  He also said that he would try to source diapers from someone else.
31. [31]
    After Dr Ibrahim provided the sum of $100,000 borrowed from his wife’s cousin, the appellant told Dr Ibrahim that he (the appellant) could not provide any more money.  Dr Ibrahim approached a friend of his (a 30 year friendship) named Emil Botros.  Mr Botros was a certified accountant.  Dr Ibrahim explained the situation to Mr Botros and then there were two meetings between the three men.  In the first meeting the appellant explained the whole venture to Mr Botros and said it was going to be “very profitable”.  He also talked about the importation of medical supplies and approval of medical files with the TGA.  After this meeting Mr Botros paid $100,000 to the appellant.
32. [32]
    Dr Ibrahim began to have suspicions about the appellant and shared them with Mr Botros.  They decided to “play ignorant” and arranged another meeting with the appellant.  They decided to ask whether they could become directors of JAC Trade Pty Ltd.  The second meeting took place in early 2019 and on that day Dr Ibrahim and Mr Botros signed documents to become directors of JAC Trade.  Dr Ibrahim and Mr Botros then went to St George Bank, showed documentation to the effect that they were directors of JAC Trade and the bank gave them access to the accounts.  They could not see any payment from Chemist Warehouse to JAC Trade.  Dr Ibrahim then tried to contact Steve from Chemist Warehouse.  He contacted Chemist Warehouse itself and had his son email, using an address which Dr Ibrahim had, although he could not remember where he received the email address from.  There was never any reply to the email.
33. [33]
    After this Dr Ibrahim and Mr Botros confronted the appellant.  He denied everything but repaid the sum of $50,000 to Dr Ibrahim.  After that Dr Ibrahim continued to chase the appellant, who then claimed to have transferred another $50,000, but it never arrived.
34. [34]
    Dr Ibrahim had one meeting with the appellant and a man named Emad Tadros in which the medical supplies/TGA business was discussed.  The point of the discussion was that the appellant had suggested Mr Tadros as someone who could get involved in that business as a shareholder.
35. [35]
    In cross-examination Dr Ibrahim said that the repayment of $50,000 was before the meeting when he and Mr Botros became directors of JAC Trade.  However, his later evidence was that the $50,000 had been paid by the appellant in February 2019 – t 1‑41.
36. [36]
    He thought that the second meeting with Mr Botros was in early 2019 at Mr Botros’s office.  Mr Botros did the necessary paperwork and it was lodged by Mr Botros.  It was put to him that this simply was not true and an historical company extract was shown to him.  It was suggested to him that this showed that he became a director of JAC Trade on 1 June 2017.  He said that the appellant had originally told him that the appellant would include him in the company, but he had never seen any paperwork to that effect and was not “100 per cent sure” that it had happened.  Having seen the historical extract, he accepted that it did happen.  Further cross-examination took place in which entries showing Dr Ibrahim being appointed as a director on 5 November 2018 and Mr Botros being appointed as a director on 1 March 2019 were discussed.  Dr Ibrahim also pointed out errors as to his personal details, such as place of birth and address.  The document became exhibit 5.
37. [37]
    In cross-examination Dr Ibrahim denied that the repayment of $50,000 was the appellant making a loan to him.  He also denied that the various transfers of money which Lillian Ibrahim made to the appellant were made so that the appellant could transfer those monies to people in Egypt on Dr Ibrahim’s behalf.
38. [38]
    In cross-examination Dr Ibrahim was taken to exhibit 1.  He said again that he signed a copy of a contract in these terms at the same time as his son and in the presence of the appellant.  He agreed that the copy before the Court appeared to be a photograph of a document.  He did not know who took the photograph of the document.  He agreed, as was obvious, that the copy which was exhibit 1 had no signatures on it.
39. [39]
    Cross-examination established that the police did not ask Dr Ibrahim for his phone or computers to examine.  He had some text messages on his phone which related to discussions about which medications would be most profitable to import into Australia.  However, he had lost his phone.
40. [40]
    In cross-examination it was put to him that his story about joining in business ventures with the appellant was not true.  He denied this.
41. [41]
    In re-examination Dr Ibrahim clarified that originally the appellant had agreed to his becoming a partner in the JAC Trade business and had told him that he (the appellant) had applied to ASIC to make Dr Ibrahim a director.  However, he had never been shown any documentation, had no connection to the JAC Trade company; no access to the bank accounts, and had never seen any paperwork which made him a director.  He said he was not aware that he had become a director and that he was not really worried about that.  He was taken to the inconsistencies in the details of his date and place of birth and his addresses recorded in the historical company’s extract.  He said that he had never seen the document before the cross-examination, and did not know why those details were listed for him.  He did not recall having signed any document regarding becoming a director of JAC Trade before the occasion on which he and Mr Botros signed documents together.
42. [42]
    Dr Ibrahim said in re-examination that at the time of his dealings with the appellant, a patient had brought a claim against him, which resulted in his being professionally suspended for six months.  That had upset him and caused him to contemplate retirement.  The appellant had encouraged him to sell his business and retire.  At that stage, his family was living on the Gold Coast, and he was working in Sydney.  He was working three-and-a-half days a week, living on his own in Sydney and travelling to the Gold Coast on weekends.  He found this all very difficult, so that he did not pay great attention to the transactions which the appellant proposed.  He said he “just trusted a friend” who “promised me a comfortable retirement”.  The families were very close and he trusted the appellant.  He did not keep copies of the relevant documents.  The appellant always showed him paperwork and then took it with him.  At the stage when he invested, he had “no doubt” about the appellant.
43. [43]
    Lillian Ibrahim gave evidence that she had been married to Dr Ibrahim for 40 years.  They had four children together.  The appellant was their “very close family friend”.  They met in July 2016.  They were “over our place every day”.  The appellant’s family had keys to the Ibrahims’ house.  They went on holidays together.  The appellant said he was a pharmacist and had many pharmacies in Cairo.  He manufactured medication in Cairo and imported diapers from Turkey to Cairo.
44. [44]
    She understood that Dr Ibrahim and the appellant went into business together.  She was not particularly interested in it, and did not pay particular attention.  She said generally the appellant would come over and show Dr Ibrahim and her things on his laptop.
45. [45]
    Dr Ibrahim told her to pay money to the appellant.  She asked the appellant what amounts he wanted and she “just paid”.  The appellant gave her the JAC Trade account number to make the payments.  She had conversations with the appellant before each transaction.  The initial payment was $175,000 as an investment in the business which was to import medication.  Then there was another fee for the TGA, which was $47,000.  She identified these amounts on bank statements.
46. [46]
    Any time they asked a question, the appellant reassured them that the business regarding the importation of medication was going well.
47. [47]
    She was aware of the business venture which the appellant proposed to import diapers and again, when the appellant told her that it was necessary for her to transfer money, she transferred it “blindly without any argument or anything, just in good faith”.  At that stage the Ibrahims had a neighbour, Robyn, who, together with her husband was in sales.  At one stage she involved Robyn in a discussion with the appellant as to whether or not she and her husband would distribute diapers to nursing homes.  At one stage the appellant said that “we don’t need Robyn”.  At this stage he had someone from Chemist Warehouse, a grandfather of a child who went to the appellant’s child’s school, by the name of Steven, who would take care of storage and distribution.
48. [48]
    Lillian Ibrahim saw the contract with Chemist Warehouse.  She identified that as the document which was exhibit 1 and recalled that the appellant brought it to their house for Dr Ibrahim or their son, Bichoy, to sign.  She did not sign it.  She never met Steven from Chemist Warehouse although she did hear his voice over the phone on speaker.
49. [49]
    Lillian Ibrahim could recall that “towards the end” the appellant told her that he needed $200,000.  She and her husband had no more redraw facilities; they had finished all their money.  The appellant told her that she would have to source some money from somewhere.  She said that she then called “everybody”, including cousins in Sydney, and one cousin gave her $100,000 which she transferred across to the appellant.  She recalled that at some point she rang the appellant and told him that her cousin wanted the money back, so he transferred $50,000 back to her.  She kept asking for the remaining $50,000 to be transferred back to her and the appellant “used to send me the same transaction from the first one that he had already transferred, and I kept on telling him” – t 2-12.
50. [50]
    At this time the appellant told her that they would be penalised if they did not pay money and she borrowed $5,000 from her son, Bichoy – “As I said, we ran out of money totally”.
51. [51]
    Lillian Ibrahim identified the amounts of money which she transferred to the appellant in relation to the diaper importation business.
52. [52]
    Lilliam Ibrahim could recall that at some point, when they began to believe they had been tricked, they called the appellant and asked for the contact details for Steven from Chemist Warehouse.  They were given an email address and her husband and son, Bichoy, then emailed Steven from Chemist Warehouse.  At one stage her son, Bichoy, used her phone to send messages to Steven.
53. [53]
    In cross-examination Lillian Ibrahim recalled that she overheard a telephone conversation between Bichoy and Steven in which Steven said that the Ibrahims were going to lose the contract or get penalised if they did not “pay up”.  This occurred some time in March 2019.
54. [54]
    In cross-examination it was established that the police never asked for Lillian Ibrahim’s phone and she did not give it to them.  However, she took screenshots of relevant matters, including all conversations between herself and the appellant through text messages.  Her evidence was initially that those screenshots were given to police, but she said she could not now recall whether she gave all the screenshots to police.  She said that she did ask the appellant for documentation from time to time.  He would bring documents to her house but on his way home take them with him, so that she retained nothing.
55. [55]
    In cross-examination she said again that the appellant showed her, her husband and son (probably) the document which was exhibit 1.  She did not read it.  She did not sign it.  She could not remember whether anyone else signed it.  She thought that it was left sitting on her desk and that is how she got a copy of it.  She took photographs of it on her phone.
56. [56]
    Cross-examination elicited details of the Ibrahims’ neighbour, Robyn Malzard, coming to the Ibrahims’ place at the same time as the appellant, where there was discussion about the adult diaper importation business, and in particular distribution of the diapers to nursing homes.  Robyn’s husband was there at the time.  She denied that this conversation never occurred. 
57. [57]
    She denied that the funds which were transferred to JAC Trade and the appellant were transferred so that the appellant could give an equivalent amount of money to a third party in Egypt on the Ibrahims’ behalf.  She was shown a one page document which appeared to show a screenshot of a text conversation, under the name Lily Church, followed by a telephone number ending in 94.  There were three relevant messages:

• Hi Maged we are leaving to Egypt tonight plz make sure u pay the total of 318,500 Aud total transfers to JAC Trade ACC to our relative in Egypt.
• Hi Lilly

Already paid to your relative in egypt as instructed by you plz confirm with him and let me know total paid is Four Million and five hundred Egyptian pounds.

Thx

• Thx Maged confirmed he received all the money in Egypt Thx.

58. [58]
    The messages were all shown to have been sent or received on Sunday, 2 September 2018 between 5.43 pm and 5.51 pm.
59. [59]
    Lillian Ibrahim said of the first message, “That is definitely not true”.  She did not type the message.  She said it was true that the Ibrahims left for Egypt in September 2018 and the appellant gave them a lift to the airport.  She vehemently denied sending the message or receiving a subsequent message.  She asked why she would need the appellant to send money overseas.  She said the Ibrahims had an account and money could be sent directly to her own account in Egypt.  She asked rhetorically, “Why would I need a middle person?”  She did admit that in 2017 she had transferred $200,000 to the appellant’s Egyptian bank account, but again denied the transaction said to be evidenced in the screenshot.  She said she had no family in Egypt, or at least no immediate family, and that if she did want to send money to Egypt she could transfer it into her own bank account.  She said if the message were genuine, she would have said the person’s name, rather than “relative”.
60. [60]
    She denied that her evidence about the business arrangement for the acquisition of medical files and diapers was not true.
61. [61]
    Bichoy Ibrahim gave evidence that he was 33 years old and a pharmacist.  He was the son of George and Lillian Ibrahim.  He knew the appellant, he met him in the context of his relationship with his family, and he got on with him really well.  They used to go to the same church and Bichoy’s sisters used to tutor the appellant’s daughters.  They had common interests, particularly around pharmacy.  He was led to believe that the appellant was a pharmacist in Egypt who had a pharmaceutical business manufacturing medications, and that he imported and exported products, including diapers.
62. [62]
    He recalled conversations between his father, the appellant and himself about the cost of medicines in Australia as compared to Egypt.  Medications were significantly cheaper in Egypt.  He recalled that this was the origin of an idea to import medications to Australia.  The appellant said that he was manufacturing certain medications and that it would be necessary to acquire files to submit to the TGA in order to start what would be a lengthy process before they could distribute medications in Australia.  He thought that these conversations began in about August 2017.  There were multiple conversations.  At some point the appellant asked him to find out pricing information and information about what medicines sold best in Australia.  The point of this was to work out what medications would be profitable to import.
63. [63]
    Bichoy was not involved financially in the medication import business, and never saw any documentation about it.  The appellant told him that files relating to certain medications had been purchased and a submission to the TGA had been made.
64. [64]
    Bichoy Ibrahim said that he expressed the view to the appellant and his father that there was a gap in the market which could be filled by the importation of adult diapers and their distribution to aged care facilities.  This conversation happened after the three had been discussing the idea of importing medicines.  The appellant said that he imported adult diapers from Turkey to Egypt so he had contacts in Turkish factories.  Originally his father and the appellant planned to find ways to distribute the diapers on the Gold Coast, but then the appellant said he had a contact from his daughter’s school who owned a couple of Chemist Warehouse stores, and the concept shifted to supplying Chemist Warehouse rather than supplying nursing homes.  He saw what was supposed to be a contract from Chemist Warehouse regarding the supply and purchase of diapers to them.  The copy of the contract was given to him by the appellant.  Bichoy Ibrahim could not recall whether he signed the contract or not, and could not recall whether he saw his father sign the contract.  He recalled that the appellant took the contract back.  He did not keep a copy of the contract, but later received photos of the contract from his father.  He identified exhibit 1 as being that series of photos.
65. [65]
    He gave evidence that he invested $5,000 in the diaper business, through his mother, but did not have any conversations with the appellant about transferring that money.  He said the money was transferred “so that we didn’t lose the contract”.
66. [66]
    He spoke to the appellant’s Chemist Warehouse contact on one occasion.  He thought that both his parents were present and that he had telephoned the contact.  He immediately corrected himself and said that in fact, “he had phoned – I can’t remember who phoned who”.  However, he recalled that there was contact, “to sort of say if you don’t pay, we’re cancelling the contract – if you don’t supply, sorry.  Not don’t pay.” – t 2-39.
67. [67]
    He also recalled that he drafted a text message on one of his parents’ phones to communicate with the Chemist Warehouse contact.  He was attempting “to get everything in writing rather than over the phone from this Steven character” – t 2-39.  He also sent emails from one of his parents’ email addresses “on behalf of Dad in an attempt to get the contract or a copy of the contract because we’d never had it.  We wanted to know exactly what’s been signed …”.  Bichoy Ibrahim identified a copy of those text messages and emails.
68. [68]
    In cross-examination it was established that Bichoy Ibrahim did not recall whether he provided the police with access to his email or access to his phone.  He conceded that his memory of the detail of events occurring in 2019 was limited.  He repeated that he could not recall whether he signed the Chemist Warehouse contract himself and could not recall anyone else signing it in his presence.  He said, “I was told that Dad had signed it, but I don’t – I didn’t see it, so I can’t say” – t 2-45.
69. [69]
    It was put to him that he had never had conversations with the appellant about the operation of a business to import medical supplies or medicines and never had such conversations about a business to import diapers.  He denied this.
70. [70]
    Robyn Malzard gave evidence that she was a sale representative and knew Dr and Lillian Ibrahim because she rented a residential property from them.  She said they were close friends.  She met the appellant once at the home of the Ibrahims.  It was said that the appellant was an old friend and that he and Dr Ibrahim were going into a new business venture importing adult sanitary napkins.  They were looking to find someone to sell and distribute the product in Sydney and perhaps the south coast of New South Wales.  She thought she was told the business was already established in Queensland.  The appellant had a lot of contacts in the industry and Dr Ibrahim had given him a substantial amount of money - $200,000 or $450,000.  Dr Ibrahim did most of the speaking and the appellant agreed with what he said.  The appellant appeared to be enthusiastic about getting her involved but he had to catch a flight and did not have much time to discuss matters with her.  She described the appellant as being “very positive” during the discussion.
71. [71]
    Emil Botros gave evidence that he was a 66 year old retired tax agent and accountant.  He had known Dr Ibrahim as a doctor and a personal friend for about 30 years through a church and family activities.
72. [72]
    He met the appellant when he was introduced to him by Dr Ibrahim in his office in November 2018.  At that stage he was told that they were running a business importing goods from Turkey and being paid by Chemist Warehouse in instalments over a 12 month period.  However, they had become “stuck in finance, so they ask[ed] me to rescue them” – t 2-55.  It was the appellant who told him about the business and asked him to go partner in the business and contribute some finance.  The appellant told him that the business would start to receive a good return, so that he would be able to recoup his money plus a profit.  He was not given any documents.  He asked for the contract with Chemist Warehouse but never received it.  He was told the business needed $257,000 to buy the next sequence of containers.  It was the appellant who told him this.  The appellant told him it would not be long before he saw a return on his investment, probably in six to 12 months.  After the meeting he transferred $257,000 in three instalments to the appellant.  He identified bank documents showing this.  He made the deposits to the JAC Trade account at the request of the appellant and in accordance with bank details provided by the appellant.
73. [73]
    He decided to invest because “of the calculation of [the appellant] and the – the prospective of the return, and also to – because they’re stuck, him and Dr George”.
74. [74]
    After the first meeting he had a conversation with Dr Ibrahim about suspicions relating to the business, and then there was a second meeting with the appellant.  At the second meeting Mr Botros asked the appellant if he could add himself as a shareholder in JAC Trade.  When he had done this he went to the bank and asked to be added as someone who had access to the JAC Trade bank account.
75. [75]
    After the second meeting with the appellant, the appellant emailed him some documents.  The email was sent on 14 March 2019.  Attached were copies of the JAC Trade account which showed two deposits of $81,450 from Chemist Warehouse, but when Mr Botros went to the bank, there were no such deposits on the statements obtained from the bank.  A further document was attached to the email which had details relating to JAC Trade, such as the ABN, trading name and registration with ASIC.  A third document attached to the email was the contract with Chemist Warehouse, or at least a photograph of it.  This email with the three attachments was made exhibit 11.
76. [76]
    Mr Botros said that in the second meeting with the appellant, the appellant said that because the contract with Chemist Warehouse allowed Chemist Warehouse to impose a penalty for not supplying on time, they would have to close their business and lose all their money unless he helped them.  He then corrected himself and said he was told about the penalty prior to his transferring the money.  Mr Botros identified a schedule which he said the appellant provided to himself and to Dr Ibrahim on 16 March 2019 which showed two payments of $81,450 received from Chemist Warehouse.  The point seemed to be to demonstrate that under the contract with Chemist Warehouse JAC Trade would start receiving that amount of money every two weeks, according to the schedule in the contract.  He had written 13 March 2019 at the top.  That was the date that the document had been supplied to himself and Dr Ibrahim, that is it was given to them by the appellant at the second meeting.
77. [77]
    After obtaining bank statements in relation to the JAC Trade account which did not show the payments from Chemist Warehouse, Mr Botros telephoned the appellant about the discrepancy.  The appellant emailed him the version of the bank statements which did show the payment and told him that the bank had made a mistake.  That was the email which he received on 14 March 2019.
78. [78]
    The appellant had repaid him $10,000 and he promised to transfer “the whole money” when they met to discuss the matter in front of a priest from their church.  However, the appellant never repaid any further monies.
79. [79]
    There was cross-examination of Mr Botros about his statement that the email he received on 14 March 2019 had three attachments.  He was not sure that the contract was attached to that email or whether he came by it on a different date.  It seemed clear from his answer that, although the email had been stapled together with three things he swore were attached to it, he had printed them individually.  He was asked whether or not the document which gave information about JAC Trade Pty Ltd was attached to the email of 14 March, and replied that he thought it was, although it might have been a different day.  He went on to say that regardless of the date, he had received the company’s details so as to be able to add himself into the ASIC records as a shareholder in order to be able to access the bank account.  Mr Botros could not recall whether or not the copy of the contract which he had sworn was attached to the 14 March 2019 email came with that email, or whether it had been sent from Lillian Ibrahim.  However, he agreed that the copy matched exhibit 1 in respect of shading across the photographs.
80. [80]
    Mr Botros thought that he asked to be added as a shareholder to the JAC Trade company at the first meeting he had with the appellant, in November 2018.  It was suggested that in fact he asked on 1 March.  He conceded that might have been the correct date, but regarded that matter as irrelevant.  He never asked to be added as a director to JAC Trade Pty Ltd.  Mr Botros did not complete the paperwork to add himself as director or shareholder because he employed an ASIC agent as part of his business and he had that person do it for him.  He acknowledged that the historical company extract showed that he had been added as a director and shareholder on 1 March 2019.
81. [81]
    Mr Botros vehemently denied that he was introduced to the appellant so that he could send money to Egypt.  He asked rhetorically why would he send money to Egypt and why would he have to go through the appellant to do so.
82. [82]
    It was suggested to Mr Botros that in May 2019 he provided the appellant with a destination account so that the appellant could transfer his $257,000 to Egypt, in accordance with the appellant’s counsel’s suggestion as to the purpose of the $257,000 payment.  Mr Botros denied this.  He said that the communication referred to was to enable the appellant to repay the $257,000.  At the time (May 2019) the appellant was in Egypt and said he did not have any Australian dollars.  Therefore, Mr Botros gave him details of an account which Mr Botros held in Egypt.  He had never told the prosecutor or the police about this.
83. [83]
    Emad Tadros gave evidence that he was a civil engineer who knew the appellant through a church.  It was a casual relationship, they were not close friends.  He had been told by the appellant that he was a pharmacist, trading pharmaceutical products between Egypt and Turkey and the Middle East.
84. [84]
    The appellant approached him about a business opportunity in around June of 2018.  The appellant was looking for investors to buy into an opportunity to supply Chemist Warehouse with diaper products from Europe under an annual agreement.  The appellant said it was a very good investment.  The market in Australia was limited.  The Turkish product would be cheap, so the return on investment would be high.
85. [85]
    At the first meeting, the appellant presented Mr Tadros with a form of contract with Chemist Warehouse.  The contract had the appellant’s name on it and also the name of Mr Tadros and his wife (in part).  It showed them as supplying diapers to Chemist Warehouse in Virginia over a period of 12 months.  Mr Tadros suggested some amendments to the form of contract and a new (amended) contract was supplied to him at a later date which he signed.  The appellant also signed it, as did Mr Tadros’s wife.  The signing took place on 20 August 2018.  At that point the contract had not been signed by Chemist Warehouse.  The appellant took it and at some point returned it, apparently signed by somebody on behalf of Chemist Warehouse.  This document became exhibit 13.
86. [86]
    After the contract was signed by them, Mr Tadros and his wife transferred money to the appellant’s account.  He assumed it was a genuine opportunity and said the appellant presented in the community as a successful businessman.  The appellant presented an invoice for the first three containers of diapers from a Turkish supplier, and also a document showing that it was an invoice for the cost of wrapping plastic and packaging.  Mr Tadros paid the money to the appellant’s personal account rather than a company account because the appellant had a good relationship with the supplier and was not required to pay the full amount immediately.  The invoices became exhibit 14.
87. [87]
    Mr Tadros created a spreadsheet where he kept track of his payments to the appellant, which were in instalments at the request of the appellant.
88. [88]
    At some point the appellant told him there were issues with delivery.  Delays meant that the Chemist Warehouse payments were delayed as well.  Also Mr Tadros came to understand that the relationship between the appellant and Chemist Warehouse was “not great”.  There were some meetings between him and the appellant to discuss these matters at which the appellant asked him to provide more money.  The appellant showed him pictures of the diapers and claimed to have come up with the brand name of the diaper.  The appellant was very confident that after the contract with Chemist Warehouse, they might be able to have their own brand where they sold to other people.  From information given to him by the appellant, Mr Tadros calculated that he should make a 20 to 30 per cent profit on the investment.
89. [89]
    The appellant showed him a receipt from his bank, which he said was the first payment receipt from Chemist Warehouse.  The receipt was dated 5 October 2018 and was in an amount of $75,450.  The appellant gave Mr Tadros a hard copy of this receipt and he kept it.  He was given another document which showed a payment of $81,450 on 20 October 2018 into the appellant’s account.  He was told that the payment came from Chemist Warehouse.  He was given a copy of the document by the appellant.  There were two more documents which showed payments on 4 November 2018 and 15 November 2018.  The first was in an amount of $108,600 and the second in an amount of $54,300.  Again the appellant said they were payments from Chemist Warehouse.  These documents were tendered as exhibits 18 and 19.
90. [90]
    The appellant presented to Mr Tadros a man named Steven, who he said was from Chemist Warehouse.  Mr Tadros met with him twice.  He had been told by the appellant that Steven was the sales manager who looked after their contract with Chemist Warehouse.  The first meeting was to discuss what the appellant had said were difficulties dealing with Chemist Warehouse not paying on time.  The first meeting was around March 2019.  Steven communicated that to ensure timely payment by Chemist Warehouse, the appellant and Mr Tadros would have to deliver on time.  There was a second meeting at which issues of timely delivery and the fall in value of the Australian dollar were discussed, as well as Chemist Warehouse’s failure to make a payment.
91. [91]
    The appellant gave Mr Tadros an email address for Steven.  He identified an email sent to him by the appellant which purported to forward email correspondence between the appellant and Steven at a particular Chemist Warehouse email address.  Mr Tadros had requested this because he wanted to track the relationship between the appellant and Chemist Warehouse.  As a result he was copied into several emails between Steven at a Chemist Warehouse address and the appellant.  Then on 4 March 2019, Mr Tadros emailed Steven at the Chemist Warehouse address.  His email was because a payment from Chemist Warehouse had been delayed.  Seemingly in response on 6 March, he was copied into emails to the appellant which showed Steven from Chemist Warehouse enquiring of someone called Lisa, whether she could check the account because the payments had been delayed.  This email was apparently sent to Mr Tadros from Steven later on 6 March 2019.  Mr Tadros followed up with Steven on 13 March 2019 and received an email apparently from Steven the following day, promising an update about his efforts on pricing “soon”.  That and another email exchange between Mr Tadros and Steven were tendered.
92. [92]
    In about March of 2019 the appellant spoke to Mr Tadros about a different business venture, namely importing medical supplies and files from Europe to Australia.  The idea was that they would buy medical files about particular drugs, seek approval from the TGA and, once the drug was approved, make and distribute these drugs in Australia.  Mr Tadros was told that the files had been purchased and that he needed an investor to help him.  The appellant said that although he had been close friends with Dr Ibrahim for a long time, they had personal issues now and the appellant wanted to withdraw from the business of importing medical supplies.  In these discussions the appellant presented documentation, supposedly an invoice in relation to the file of a particular drug, and also documents about the TGA application which he said was underway, except that a fee needed to be paid.  The invoice supposedly in relation to the purchase of a medical file was tendered, and so was some documentation supposedly from or to the TGA.  He had discussions with the appellant about the particular drugs which the appellant was going to manufacture and sell in Australia once TGA approval was obtained.  The appellant told Mr Tadros that the return on these investments would be very high.
93. [93]
    Mr Tadros invested in this supposed business.  He made payments in instalments to do so.  Before every instalment was paid the appellant told him that he needed money for some particular aspect of the business, for example to pay a company in Germany or to pay the TGA.  In answer to Mr Tadros’s enquiries, the appellant produced a page of his personal bank statement that appeared to show a payment of $49,900 to the TGA.  That document was tendered.
94. [94]
    In May 2019 Mr Tadros discovered that there was no business to import medical supplies and that he had been defrauded.  He raised this with the appellant.  Similarly, he raised his views that there was no Chemist Warehouse business.  The appellant promised to repay the money he had taken from him.  He did repay $50,000.
95. [95]
    In cross-examination it was suggested to Mr Tadros that he had borrowed half a million dollars from the appellant and the payment which he made to the appellant were repayments of that loan.  Mr Tadros denied this.  He denied that his account of entering into the diaper importation business was untrue, and denied that his account of entering into the medical supplies importation business was untrue.
96. [96]
    Cross-examination which appeared to be aimed at casting doubt on the provenance of the documents Mr Tadros had produced in examination-in-chief was undertaken, but produced no evidence capable of undermining his evidence-in-chief.
97. [97]
    Mr Tadros kept his own schedule of the monies he paid to the appellant, and the monies the appellant repaid to him.  Cross‑examination as to the descriptions of some entries in that schedule was undertaken.  Two entries were labelled “borrow”, but Mr Tadros denied that he had ever borrowed money from the appellant.  The schedules were tendered by the Crown during cross‑examination.
98. [98]
    In cross-examination Mr Tadros said that he and the appellant at some time formed a company or a partnership called Pharma Plus to run the medical supplies import business.  Cross-examination introduced more email correspondence between Steven, supposedly from Chemist Warehouse, and Mr Tadros and the appellant about having a new contract signed in the name of Pharma Plus.  It was put to Mr Tadros he had never told the police about this and he said he could not remember.
99. [99]
    Sasha Barclay of the TGA gave evidence of the TGA’s registration program for over-the-counter medications, and of the TGA’s record-keeping in relation to applications received.  Even if a person simply makes an enquiry as to the process of registration, their details are recorded.  She had searched for the appellant’s name and date of birth but could find no records.  She also searched for a business called JAC Trade Pty Ltd and its ABN.  There were no records.  She was asked to examine exhibit 22, a document from the appellant appearing to make application with the TGA.  She recognised it as a TGA document but said that if it had been submitted to the TGA there would be a record of that within the TGA.  Her evidence was that there were documents available on the TGA website which could be accessed and printed.  In cross-examination she said that she had never made a search in relation to a company named Pharma Plus Pty Ltd.
100. [100]
     Steven Haigh was a 69 year old disability pensioner who knew the appellant; they would both go to a casino on the Gold Coast.
101. [101]
     He spoke to Dr Ibrahim twice; the first time in February 2019 on the appellant’s telephone.  The appellant had told him that he (the appellant) had some financial difficulties and wanted him to speak to Dr Ibrahim to reassure him.  The appellant told him what to say, namely that he was a potential buyer for medical containers.^[1]  Mr Haigh was to tell Dr Ibrahim that there had been a delay in the manufacture of the product and it would take a few extra months before it was delivered.
102. [102]
     Mr Haigh had a second conversation with Dr Ibrahim a few weeks later.  Again the appellant asked him to do so and told him what to say in the conversation.  He was to say that there had been a further delay as the appellant’s money had not come from Egypt.  The appellant told him that his phone was dead so asked him to use his own phone when he spoke to Dr Ibrahim on the second occasion.  In accordance with what the appellant asked him to do, Mr Haigh told Dr Ibrahim that he was working for Chemist Warehouse and told Dr Ibrahim that there was a further delay and the contract might be terminated.
103. [103]
     The appellant told him that he had set up an email address in the name of Stevenh@chemistwarehouseh.  After the second phone call to Dr Ibrahim, Mr Haigh went to the toilet and during that time the appellant picked up his phone and texted Dr Ibrahim.  Mr Haigh identified that after his second phone call to Dr Ibrahim, Dr Ibrahim had sent a text message to his phone asking for his email address (exhibit 9) and identified the reply as being what the appellant had typed on his (Mr Haigh’s) phone, namely [email protected].
104. [104]
     The appellant introduced Mr Haigh to Mr Tadros at some later date.  Mr Haigh was told that Mr Tadros was the appellant’s business partner.  The meeting was between January and March 2019.  The appellant arranged the meeting.  The appellant had said to him that, “I want you to have a supply issue of delivering product and I need you to virtually tell him the same story as we did Mr Ibrahim” – t 3-62.  Mr Haigh was told to introduce himself as a buyer for Chemist Warehouse; keep the conversation short, and say there was a delay which could result in a penalty under the contract.  Before the meeting with Mr Tadros, the appellant and Mr Haigh met.  The appellant drove Mr Haigh towards the meeting place, but let him out one block away from the arranged meeting place, saying that he did not want Mr Tadros to see them arrive together.  At the meeting Mr Haigh talked about a delay and a possible penalty.  He was there for a very short time and then he left.
105. [105]
     There was a second meeting a few weeks later, about March 2019.  He had never communicated in writing to Mr Tadros.  He did not recognise the emails to Mr Tadros purporting to come from the email address [email protected].  He did not sign a copy of a purported Chemist Warehouse contract with Mr Tadros, although he recognised the appellant’s signature on exhibit 13.
106. [106]
     Mr Haigh said he acted as he did because he was trying to help the appellant who he thought had problems with timely delivery of his product.  He described his involvement as “quite a large mistake on my part”.  In cross-examination he acknowledged that when he was first spoken to by police he did not tell them the truth, however, after consulting with lawyers he understood that the matter was serious.  He was arrested by police and later gave them information.
107. [107]
     Jeffery Wasley gave evidence that he was a State Manager for Chemist Warehouse in Queensland and was a part owner of the Chemist Warehouse located in Virginia.  Decisions as to what goods were stocked in the Virginia store were made in Chemist Warehouse head office in Melbourne.  He had never heard of the appellant, or a JAC Trade Pty Ltd.  If Chemist Warehouse had dealings with either the appellant or JAC Trade Pty Ltd there would be records of this.  He had never seen the document which appeared to be a Chemist Warehouse contract (exhibit 13).  He did not recognise any of the signatures on it.
108. [108]
     Naomi Dimitrakis gave evidence that she was a buyer for Chemist Warehouse.  Her area of responsibility included purchasing adult diapers.  It was not possible for Chemist Warehouse to engage a supplier of adult diapers without her knowledge.  She had been in the same role for seven years.  She had never dealt with the appellant or a company called JAC Trade Pty Ltd.  Chemist Warehouse kept records of all suppliers and prospective suppliers.  She had checked through her emails and spreadsheets before coming to court in order to be able to say that the appellant and JAC Trade Pty Ltd were not suppliers and that there were no records of them as suppliers.  She was shown exhibit 13, a purported contract with Chemist Warehouse.  She said that Chemist Warehouse had standardised contracts with suppliers and that the document was not a Chemist Warehouse contract.  She did not recognise any of the signatures on the document.
109. [109]
     John Timpano gave evidence of all the domain names used by Chemist Warehouse which did not include the domain name “@chemistwh.com”.  He had checked for the email address [email protected] and found no such address in the Chemist Warehouse system.  Employees of Chemist Warehouse did not receive a mobile phone.  Company phones were linked into the Chemist Warehouse system.  He had searched that system for the phone number used by Steven Haigh and it was not a mobile number registered to an employee of Chemist Warehouse.
110. [110]
     Formal evidence was given by a police officer in relation to the obtaining of bank statements which had been already tendered in the trial.
111. [111]
     In cross-examination it was established that during the investigation police had obtained a search warrant and searched the appellant’s home.  They took possession of electronic devices, including computers and phones.  These were examined by the Electronic Evidence Examination Unit at Queensland Police.
112. [112]
     In cross-examination this witness gave evidence that in an application called “notes” on the applicant’s mobile phone, there was a draft of text messages to and from the phone which matched the three messages referred to at [57] above.  On the strength of that, the screenshot described at [57], which had previously marked for identification, became exhibit 30.
113. [113]
     In cross-examination this witness confirmed that the police did not access or download the content of electronic devices belonging to Dr and Lillian Ibrahim, Bichoy Ibrahim, Emil Botros or Emad Tadros.

Arguments on Unreasonable Conviction Ground

114. [114]
     The appellant raised six separate points in relation to this ground.  An examination of them shows that this ground must fail.
115. [115]
     First he said that the document tendered as exhibit 1 was legally and logically irrelevant and inadmissible.  He particularly focused on the fact that the form of contract had no names of parties on it and no signatures on it.  This argument is misconceived.  The document was not tendered as being a signed contract; it was tendered as being an unsigned copy of a document which had been signed.  It was clearly relevant in terms of the appellant’s inducement of the Ibrahims to invest in the diaper import business, and to the dishonesty of the appellant.
116. [116]
     The second point made by the appellant related to documents tendered through Mr Botros, in particular there was a focus on exhibit 11.  It was submitted that the quality of the documents was never examined or verified by police and Mr Botros’s electronic devices were never examined.  While it is true to say that the police did not examine Mr Botros’s electronic devices, there was no requirement that they do so.  Exhibit 11 was admissible in accordance with Mr Botros’s oral evidence.  The appellant also described the evidence as “tainted and fabricated” because one of the documents which Mr Botros said was attached to the 14 March 2019 email post‑dated the email date.  Even in examination-in-chief, it was clear that Mr Botros was somewhat confused about details of dates and sequences of events.  When cross‑examined about the 14 March 2019 emails, Mr Botros explained that he had gathered documents together and that they were presented to the court stapled together as though they had all been attachments, but he was in fact not sure about that.  This was a point going to his credit which the jury had for consideration.  However, it did not mean that the evidence had to be rejected.^[2]  There is nothing in this point.
117. [117]
     The third point advanced was in relation to exhibit 13.  This was a copy of the contract which Mr Tadros said that he and the appellant had signed.  The appellant’s submissions about exhibit 13 are factually inaccurate.  He submits that on the face of the document it had been emailed from Lillian Ibrahim on 4 March 2019.  In fact it was the copy of the contract which was initially said by Mr Botros to be annexed to the 14 March 2019 email (exhibit 11) which was suggested in cross-examination to in fact have come from Lillian Ibrahim, rather than the appellant.  Exhibit 11 was a different document to that which was exhibit 13.  Exhibit 13 was a form of contract signed by the appellant, Mr Tadros and Mr Tadros’s wife, Christeen.  Comparison of it, exhibit 11 and exhibit 1 shows this; it is not a document which appears to have originated with Lillian Ibrahim, or was claimed at the trial to have originated with Lillian Ibrahim.
118. [118]
     A subsidiary point is that where exhibit 13 is dated, it shows that a mistake had been made; the year 2016 had been written, and then changed to 2018.  In cross‑examination about exhibit 13 Mr Tadros was asked whether or not the contract had been dated 20 August 2016 and the date had been changed to 20 August 2018.  Mr Tadros said that the date had been mistakenly written as 2016 and at the time the numeral 8 had been heavily written over the 6 to correct this mistake.  There is no reason why the jury must have regarded that as sinister in any way; to the contrary, they were entitled to accept Mr Tadros’s evidence about it and regard it as insignificant.
119. [119]
     Another point made about exhibit 13 is that “a signing party Christeen George” appears on the document, but that person was never interviewed by the police or the prosecution, and never called as a witness.  Mr Tadros’s evidence was that his wife, Christeen Rofail, was a party to the contract and that she had signed it – t 2-84.  He repeated this in cross-examination – t 3-43.  In cross-examination he also said that the appellant had mistakenly filled in Christeen Rofail’s name as Christeen George because he did not know her last name – t 3-42.  There was no other evidence on this subject.  Thus one can conclude that there is no such person as Christeen George.  It is true that Christeen Rofail was not called as a witness, but no complaint was made about that at any time below.  The appellant does not suggest any relevant evidence which Christeen Rofail might have given.
120. [120]
     Lastly in relation to the contract which is exhibit 13, the appellant says that his name and signature on that document were a forgery and are not in his handwriting.  This matter was never raised below.  It is contrary to the evidence below.  The appellant presents no evidence at all on appeal as to this matter, and given he must have known of it at the time of trial, it is difficult to imagine that he could.
121. [121]
     The fourth point raised as to the unreasonableness ground rests on a slip of the tongue by witness Steven Haigh during his evidence.  Numerous times during his evidence Steven Haigh said that he was asked by the appellant to say that he (Haigh) worked at Chemist Warehouse.  At one point (t 3-60.5) he said that Mr Ibrahim instructed him to say that he worked for Chemist Warehouse.  Assuming the transcript is correct, there could be no sensible explanation for this other than that it was a slip of the tongue.  There is nothing in this point.
122. [122]
     The fifth point advanced in relation to the unreasonableness ground attacks exhibits 4, 11 and 20 and nearly all the other documentary exhibits in the case as being documents which were created and provided by the complainants, but not examined or verified by the police or prosecution.  It is claimed they are legally and logically irrelevant and were photocopies rather than original documents.
123. [123]
     There was no objection below as to the relevance of any document tendered, nor was there any objection to copies being used.  I cannot see that any of the documents tendered were irrelevant, nor can I see that there is any reason to be concerned about the consensual use of copies in the case.  No point was taken below as to emails apparently originating from the appellant being fabricated, or not properly proved, and having regard to all the evidence in the case, I cannot see a proper basis for such points to be taken either below or on appeal.
124. [124]
     The sixth point as to the unreasonableness ground relies upon inconsistencies and contradictions between the evidence of the complainants.  There is no doubt that there were some inconsistencies which became evident, or were explored, in cross-examination, and were the subject of defence counsel’s address to the jury.  They were matters for the jury to consider.  They were relatively minor, and the jury might well have thought they were to be expected given that the complainants were giving evidence of what happened some four or five years previously, at a time when they had been involved very much on the fringes of what the appellant claimed were his business ventures.  While these matters were for the jury, there is nothing about them that indicates that the jury must have had a reasonable doubt about the complainants’ evidence.^[3]

Ground 2: Conduct of the Prosecutor

125. [125]
     The appellant referred to the prosecutor’s duty of fairness and claimed that the prosecutor here had acted improperly.  Specific reference was made to the prosecutor failing to call Christeen Rofail (above) and not tendering “my phone search data” at the trial.  The point about Christeen Rofail has already been dealt with.  There is nothing in the evidence below, or advanced on this appeal, which shows that the prosecutor ought to have called her.
126. [126]
     The appellant asserted in submissions and on the affidavits sworn on this appeal relevant to his claim that this trial counsel was incompetent, that the “police detective” gave his barrister a huge electronic file of 8,000 pages of material from his “phone search data” on the second last day of trial.  This matter is discussed in detail below.  It is sufficient to note here that proper disclosure of the material had been made by the Crown prior to trial.  Additional electronic examination of the material was undertaken by police during the course of the trial at the request of the appellant’s trial counsel.  The trial was adjourned for an hour or two while the appellant’s trial counsel investigated the point of interest in the new material.  There was no detail given by the appellant on this appeal as to what it was in these documents which would have been relevant, much less decisive, on the trial.  There could not have been a tender of the entire electronic records of the appellant’s “phone search data”.
127. [127]
     Lastly, quite scandalous allegations against the prosecutor are made.  The appellant reasons that the allegations against him were false, therefore there could have been no valid or honest evidence to support the allegations.  Therefore, he says the prosecution tendered irrelevant and fabricated evidence.
128. [128]
     This ground must be dismissed.  I would add that, having read the entire transcript of the trial below, the prosecutor conducted herself in a very fair and measured way.

Ground 3: Honest Claim of Right

129. [129]
     This ground of appeal may be shortly dealt with.  The appellant claims that the trial judge erred in not putting the defence of honest claim of right to the jury.  He says that his honest claim of right arose because the complainants deposited money in his bank accounts, therefore he must have had a claim that it was his personal money.  He relied upon the Lily Church screenshot which was exhibit 30 as showing that he had a belief inconsistent with dishonesty.  In fact, if the screenshot were genuine it would show that he well knew that the money under discussion was not his to do as he liked with.  He claims that much more evidence was available in his “phone search data”, but does not condescend to give one detail or example of that.
130. [130]
     The defence of honest claim of right was not advanced below.  It was inconsistent with the whole way in which the appellant’s case was advanced before the jury.  On the evidence before the trial court there was nothing to support a defence of honest claim of right; it would have been wrong for the judge to raise it with the jury.  This ground fails.

Ground 4: Defects in the Summing Up

131. [131]
     The appellant complains that in summarising the evidence of the police witness the trial judge told the jury that police “did not complete downloads of the complainants’ phones” – t 1-16.5.  The complaint seems to be about the use of the word “complete”.  It would have been more accurate if the trial judge had said that the police did not undertake downloads of the complainants’ phones.  The appellant says that the jury might have been confused into thinking that the police started to download material from the complainants’ phones and that that would therefore give the documents tendered against him more weight than they otherwise would have.
132. [132]
     I cannot think that there was any real possibility that the jury would make such a mistake, even allowing for the ambiguity in the judge’s use of language.  Every complainant had been cross-examined as to whether or not their electronic devices had been given to the police.  Every complainant said they had not.  That was also the evidence of the police officer, and the point was made by defence counsel in his address.
133. [133]
     The second point made as to the summing up is similar to that made against the prosecutor, [127] above.  The appellant assumes a logical starting point that he never committed a criminal offence, and thus concludes that the documents tendered in evidence were not proof of any offence.  I cannot see that the trial judge did anything other than fairly summarise the evidence which had been tendered without objection in relation to all these matters.  This ground must fail.

Grounds 5 and 6: Conduct of Defence Counsel

134. [134]
     At ground 5 the appellant makes numerous criticisms of his trial counsel.  They are many and varied.  Some of these are invalid for the same reason as the criticism of the prosecutor, [127] above; that is, they assume a starting point that the appellant never committed any offences and proceed on the basis that “all the evidence presented to and admitted by the Crown Prosecutor was not related to [my] charges”.  There is nothing in these sorts of criticisms.
135. [135]
     In this category of criticism is the appellant’s complaint that his trial counsel was ill during the trial.  It appears from the transcript that his trial counsel had a cold.  At times the jury had trouble hearing trial counsel and they said so.  By the end of the trial, the trial judge had accommodated them by giving them headsets so that they could listen to the trial counsel through the electronic recording system, which they reported was excellent.  There is nothing in this complaint.
136. [136]
     Ground 6 of the appellant’s notice of appeal was in terms of an application for leave to adduce fresh evidence, namely a document which the appellant said was a loan agreement between him and Mr Tadros, showing that Mr Tadros’s payments to him were repayments of a loan.  This document was said to have been in the possession of his trial counsel before trial.  He asserts that contrary to his instructions, trial counsel did not use it at trial.  The document could not be fresh evidence, and the substantive point which the appellant wishes to make is more properly considered as part of his allegation that his trial counsel was incompetent.  This means that the Court need not decide the application to adduce fresh evidence, but will consider the documents produced by the appellant as part of the incompetence ground.
137. [137]
     The original hearing date for this appeal was adjourned so that the parties’ desire to give evidence relating to the conduct of the trial could be accommodated.  At the time scheduled for the initial hearing of this appeal Mr Kostandy had filed two affidavits (10 June 2024) which in my opinion did waive his legal professional privilege, although not expressly so.  Counsel appearing for the Crown on that day had no evidence to put before the Court, and expressed doubt about whether or not privilege had been waived.  At the suggestion of the Court, the procedure described in R v McNicol^[4] was followed during the adjournment.  The result was that this Court had a collection of correspondence between the appellant and his former solicitor and counsel which was made an exhibit on the appeal; an affidavit (9 September 2024) by the police detective (Mr McCafferty), who undertook electronic analysis of the appellant’s phone during the course of the trial; affidavits from both the solicitor and barrister who ran the trial (both 17 September 2024), together with another three affidavits sworn by the appellant, all 12 September 2024.
138. [138]
     The five main complaints which the appellant made were: (1) failure to ask for an adjournment after his “phone search data” was provided on the second last day of the trial (referred to above); (2) failure to tender what the appellant says was a loan agreement between him and Mr Tadros, and associated documents; (3) failure to allow him to give evidence at the trial; (4) failure to call Christeen George as a witness; and (5) failure to subpoena Steven Haigh’s phone records.  I will deal with each of these points in turn.

Disclosure of Cellebrite Examination of Appellant’s Phone

139. [139]
     The appellant swore that when he was charged on 1 April 2020 the police seized all his electronic devices including his phone, which was examined by the Electronic Evidence Examination Unit at Queensland Police.  He says that his “phone search data contained evidence that the money I received from the complainants was for personal money transfers (Personal Remittances) and was not for any alleged businesses, it also contained text messages which proves that all the complainants received the equivalent of their transferred money in Egyptian Pounds almost one year before they went to the police with these false allegations”.  Further that, “the phone search file contained text messages and voice records which prove that I have loaned money to the complainants and they were struggling and stalling to return this money back to me”.  Despite the seemingly vital nature of this evidence, the appellant has not obtained it between the trial and the appeal and put not one jot of documentary evidence before this Court which would corroborate these claims as to the content of his “phone search data”.
140. [140]
     The appellant goes on to say that his trial counsel assured him that this data would be available at his trial and “presented to the court”.  However it was not, and it was only after the appellant insisted, on the second last day of trial, that the police handed an electronic file to his counsel containing 8,000 pages of information, so that it was impossible for his counsel to search and extract “all the required data”.  He complains that his counsel did not seek an adjournment of the trial.
141. [141]
     In subsequent affidavits the appellant extended this allegation so that it no longer just related to his “phone search data” but also “Two HP Laptops, Two Samsung mobile telephones, a Blackberry mobile telephone and Two IPads and a Samsung Tablet”.  His involvement in obtaining the electronic data was more prominent, indeed florid:

“The report was generated and provided on the last day of my trial, only because I informed [trial counsel] and Detective McCafferty outside the Courtroom, that if this report is not generated and provided I will tell the Judge first thing in the morning that you are masking evidence, then the [Electronic Examination Unit] was able to magically generate the report after 37 months waiting time.”^[5]

142. [142]
     In the same affidavit the appellant swears that this failure to disclose the electronic data was not innocent, but part of the prosecution’s plan to “admit and use fabricated and tainted evidence” against him.  He expresses other persecutory and paranoid ideas as to how the situation came about.  He swears to abusive and inadmissible views about his lawyers.
143. [143]
     Trial counsel for the appellant swore that data from a phone belonging to the appellant and seized by the police was disclosed by the prosecution prior to trial.  There was voluminous data which included numerous messages both in English and in Arabic.  Trial counsel could read those in English, and the appellant was able to translate the Arabic messages.
144. [144]
     In preparing for trial, counsel advised the appellant to obtain and provide records to support his instructions about money transfers.  The appellant failed to provide those records.  Some messages from the phone data did concern money transfers, but did not assist the appellant’s case.  The appellant did not instruct that there were messages which would assist his case, or that more time was needed for him to provide instructions about the phone data which had been disclosed.  Counsel swore, “Despite repeated encouragement over the course of my engagement from 2022 to 2023, the appellant did not provide or identify records to support his claim of having paid $2.3 million to the complainants, or provide details of how that was said to have occurred”.
145. [145]
     Detective McCafferty swore that during the trial the prosecutor introduced him to the appellant’s barrister and the appellant’s barrister questioned whether, “given the passage of time since the original analysis a further cellebrite [examination] could be conducted of Kostandy’s phone”.  He made enquiries which disclosed that the “Cellebrite software had become more proficient over the past few years”.  He then took the two Samsung phones which police had seized from the appellant back to the Electronic Evidence Examination Unit, and a further Cellebrite examination was performed.  A copy was made and provided to the DPP.  He swore:

“I noted that the extraction contained a more extensive messaging thread that appeared to be between Kostandy and Lillian Ibrahim (the ‘Lily Church’ number … 94 being the number I had used to contact Lillian Ibrahim) relating to the return of monies within Egypt.

I recall within the provisions of my own evidence being questioned by [the appellant’s counsel] and tendering this messaging thread.”

146. [146]
     The appellant’s trial solicitor swore that as a result of the further Cellebrite analysis, he and trial counsel were provided with a large file of phone data.  The Court was adjourned to allow them to examine it.  The Crown directed him and trial counsel to certain parts of the file.  In cross-examination he said that the part of the file to which they were directed was where the text messages were stored on the phone.  He said that there was a relatively simple search function available and that he and counsel searched through the messages outside the courtroom for about 30 to 60 minutes.  They had no issues locating the material they searched for, and most of the data they found was determined to be irrelevant.
147. [147]
     The appellant’s trial counsel swore that “there was no occasion to seek an adjournment to allow more time for a further examination of the data or for any other purpose”.
148. [148]
     I prefer the evidence of the appellant’s former lawyers and Detective McCafferty to that of the appellant.  The appellant’s evidence must be undisclosed hearsay inasmuch as he swears that the prosecution did not make proper disclosure prior to trial.  As well, it became more elaborate over the course of his affidavits.  It is inconsistent with the evidence of the other witnesses, and such contemporary documents as do exist.^[6]  It has an air of unreality about it.  The evidence of the appellant’s former lawyers and Detective McCafferty, on the other hand, is a consistent body of evidence.  Lastly, the appellant provides no detail at all of the contents of the disclosed documents which would assist his case.  He says that he has not been able to access the electronic data in prison, but I do not accept that, given the extensive affidavit material he has produced, including electronically manipulated copies of documents in relation to the loan agreement (see below). 
149. [149]
     This point must fail.

Failure to Tender Loan Agreement and Associated Documents

150. [150]
     The appellant asserts that his trial lawyers were in possession of a loan agreement between himself and Mr Tadros which documented the appellant lending Mr Tadros $287,500.  A second document is said to be relevant, “an email from me to AUSTRAC and their official reply confirming that at the time I was doing personal remittance transfers to Egypt, along with a forward of the same email to my Solicitor to be presented to the Court”.
151. [151]
     In one of his affidavits filed 10 June 2024 the appellant says that he exhibits the loan agreement.  In fact he exhibits only one page, which appears to be a schedule to a loan agreement.  That page shows him as lender and Mr Tadros as borrower in relation to a sum of $287,500.  The page is odd because the parties’ names and addresses are in square brackets.  Although the page is apparently a schedule to a loan agreement, it contains terms which should be in the body of a contract, not a schedule.  As well, there is handwriting, apparently of two different people, at various places on the page.  None of this is explained.
152. [152]
     Attached to an application for leave to adduce evidence, also filed on 10 June 2024, is another page of a loan agreement, not necessarily the same loan agreement, which gives almost no information other than the date of a loan, the date of an agreement and the word “Qld” under the heading “Proper Law”.
153. [153]
     In an affidavit filed on 12 September 2024, it appears that the appellant has digitally manipulated one or more documents so that they are contained within the body of his affidavit, rather than exhibiting original and complete documents to the affidavit.  In this affidavit he swears that the documents relate to a civil proceeding in relation to the loan he made to Mr Tadros.  A court heading and parts of a notice of intention to defend appear to show that Mr Tadros sued Mr Kostandy in the Southport District Court.  The subject matter of that suit is not apparent from anything contained in, or exhibited to, the affidavit.  Assertions which appear to have no place in any properly drawn defence (and may not be contained in a defence) are to the effect that the appellant has been unable to locate a copy of the loan agreement, but that a loan agreement has been produced by Mr Tadros’s lawyers which is internally inconsistent, in that page 9 of that document describes Mr Tadros as the borrower, rather than the lender.  A further defence document is manipulated to be part of the same affidavit.  Given that the claim to which it responds is not part of the material, it is difficult to understand it.  It also appears, however, to refer to the loan schedule page, which it describes as making the agreement uncertain.  It appears that in this defence document the appellant asserts that he has not signed the document to which the schedule page belongs, and had no knowledge of the loan agreement until the statement of claim in the Southport District Court was served upon him.
154. [154]
     All these things are confusing and, I venture to say, designed to confuse.  It seems likely that Mr Tadros sued the appellant on a loan document which showed Mr Tadros as the lender and the appellant as the borrower.  It seems likely that a defence was filed on behalf of the appellant which took the point that on page 9, which was a schedule to the loan agreement, the descriptions of the parties to the loan agreement were reversed, which made the document “inconsistent” and “uncertain”.  All this goes against the idea that the one page schedule which the appellant wishes to rely upon in this appeal is evidence of a loan agreement by which he lent money to Mr Tadros.
155. [155]
     Trial counsel for the appellant swore an affidavit in which he said that a copy of the full loan agreement to which the schedule page belongs was disclosed to the appellant’s lawyers by the Crown.  The loan agreement documents Mr Tadros lending the appellant money.  The trial counsel swore:

“When the whole loan agreement is considered the page on which the name of Mr Tadros appears beside the description, ‘the borrower’, and on which the name of the appellant appears beside the description, ‘the lender’, is plainly inconsistent with the rest of the document and likely to be viewed as a formatting error.

Despite the appellant’s assertion in this Court, the whole loan agreement does not prove that the appellant loaned Mr Tadros money, and is actually consistent with the Crown case that Mr Tadros loaned the appellant money.  This issue was explained to the appellant in conferencing before the trial.  The appellant instructed us that he did not see the pages on which he is described as ‘borrower’.  However, the Crown disclosed in May 2022 that the document had been seized from the appellant’s house when it was searched by police.

These matters were discussed with the appellant before and during the trial and he ultimately elected not to give evidence, including about this loan agreement.”

156. [156]
     There is nothing in this appeal point.  The appellant’s affidavit material and submissions are simply obfuscation and nonsense.
157. [157]
     In relation to the associated AUSTRAC documents, the appellant puts before the Court three emails.  The first one seems to be from one public servant employed by AUSTRAC to another.  Its subject is “Enquiry form submission [EXTERNAL]”.  The enquiry is described as having been submitted on 5 September 2019 by “anonymous”, although the “submitted values” include Mr Kostandy’s first and family name and an email address that has the name Kostandy in it.  The topic of the enquiry is recorded as being “enrolment and registration”.  The status, presumably of Mr Kostandy is, “not enrolled or registered with AUSTRAC”.  And the “query details” are, “want to check if I need to be registered with Austrac for doing personal remittance”.  Secondly, there is a response to this email from someone who worked for AUSTRAC giving general information to the appellant that if he was providing remittance services in the course of carrying out a business, he needed to register with AUSTRAC.  The third email shows that these two emails were sent by Mr Kostandy to his trial solicitors.
158. [158]
     I cannot see that these emails could have advanced the appellant’s case at trial.  They are dated after all the relevant transfers of money to him or to JAC Trade Pty Ltd occurred.  In fact, all the emails are sent after the complainants had realised that he had defrauded them.  Further, the initial email enquires as to the appellant’s ability to send remittances in the future.
159. [159]
     Of the email string the appellant’s trial counsel swore:

“… That document did not prove that the appellant was transferring money for other people prior to the date of the email inquiry. 

In preparing for trial, I advised the appellant to obtain and provide records to support his instructions about dealing with funds.  He failed to provide records to support his instructions.”

160. [160]
     There is nothing at all in this point.

Advice as to the Appellant Giving Evidence

161. [161]
     The appellant swore that his trial counsel told him not to give evidence because he does not speak very good English.  It is apparent from contemporary records that the appellant’s lawyers at trial were attempting to preserve a position throughout the conduct of the trial which would enable the appellant to avoid giving evidence.  The tender of the Lily Church screenshots by the Crown, by agreement, meant that he did not have to give evidence.
162. [162]
     The appellant’s trial counsel swears that in preparation for trial he advised the appellant of his right to give evidence and told him he would need detailed instructions so that he knew in advance what he would say if he did give evidence.  He gave advice as to the risks and possible benefits of the appellant giving evidence.  At the end of the trial his advice to the appellant was not to give evidence:

“In particular, I explained that we had done all we could in the Crown case and I did not see him giving evidence as necessary or worth the risk of a problem in cross-examination.  In my view the appellant would be expected to substantiate his claims, but could not, and in cross-examination his uncorroborated claims would become a critical weakness.  The appellant agreed with my advice and instructed us that he did not wish to give or call evidence.”

163. [163]
     Counsel denied telling the appellant he should not give evidence because of his inability to speak English well.  He says that he was able to communicate with the appellant in English and did not have any concern that he would not be able to give evidence in the English language.  That is quite well demonstrated by the appellant’s having appeared for himself on this appeal.  The appellant’s trial solicitor strongly denied that counsel told the appellant not to give evidence because he did not speak good English.
164. [164]
     So far as the conflict of evidence is concerned, I prefer the evidence of trial counsel and trial solicitor.  Further, I cannot see that there was any incompetence in advising the appellant that he should not give evidence.  The reason given by trial counsel is compelling.  As the appellant’s conduct on this appeal demonstrates, any time any disciplined analysis is made of what he says, his assertions prove to be false or nonsensical.  I think that would have been demonstrated in cross-examination to the appellant’s disadvantage.
165. [165]
     This point must fail.

Christeen George

166. [166]
     The appellant complains that his trial counsel failed to call Christeen George.  As already discussed, the only evidence at trial was that there is no Christeen George.  Christeen Rofail was Mr Tadros’s wife, and it is most unlikely that it would have been in the appellant’s interests for his counsel to call that lady and open her to cross-examination from the Crown.  Trial counsel says that no statement had been obtained from Christeen Rofail.  There is nothing in this point.

Steven Haigh

167. [167]
     Lastly, the appellant complains that his trial counsel ignored an instruction given to him to subpoena the phone records of Steven Haigh.  He says that these would have revealed collusion between him and Dr Ibrahim to falsely incriminate the appellant.
168. [168]
     Affidavits sworn by the appellant’s former lawyers show that they did discuss whether or not to subpoena phone records from Mr Haigh, but could not identify any valid basis on which to do so, and were never instructed to do so by the appellant, despite the fact that they discussed the matter with him.  Again I prefer their evidence to that of the appellant.  As to the substantive point, I cannot see that failure to subpoena these records shows any negligence on behalf of the appellant’s former lawyers.  I note that, despite assertion by the appellant that the phone records would show collusion between Mr Haigh and Dr Ibrahim, there is not the slightest detail or evidence to support the assertion.  There is nothing in this point.

Disposition

169. [169]
     This appeal must be dismissed.
170. [170]
     WILLIAMS J:  I also agree with Dalton JA.