Queensland Judgments


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R v Russell  
Unreported Citation: [2018] QCA 96

This decision considers an appeal against conviction for one count of fraud. The appellant argued that the person who “applied” and “possessed” the property pursuant to s 408C of the Criminal Code was a company, not himself. The appellant was the sole director of that company. The Court found that to “apply” property involves dealing with it and does not require ownership. The term “possession” is broadly defined under the Code. The appeal was dismissed.

Fraser and Gotterson and Morrison JJA

25 May 2018

Following a 10-day trial in the District Court, the appellant was convicted of one count of fraud pursuant to s 408C(1)(a) of the Criminal Code, with circumstances of aggravation.  It was found that he dishonestly applied property to his own use and the use of BRGOC Group Finance Pty Ltd (BRGOC) and others, namely a sum of money and bank credits. [2]. He was sentenced to three years’ imprisonment with parole release after 18 months. [3].

The grounds of appeal included that there was no evidence to support a finding that the appellant “applied to his own use” the property in question. [29]. The appellant argued that, on the evidence adduced, the person who “applied” the property was AF (Qld) Pty Ltd (AFQ) and not the appellant personally. [30]. At the relevant time he was the sole director of AFQ and, through other entities, ultimately the sole shareholder. [5]. The appellant argued that the Crown evidence did not “pierce the corporate veil” to establish that it was the appellant who applied the property. [31].

Justice Gotterson, with whom Fraser and Morrison JJA agreed, noted that the word “obtain”, is defined for s 408C(1)(b) to mean “to get, gain, receive or acquire in any way”.  In contrast, the word “applies”, as an element of s 408C(1)(a) offences, is not defined. [34]. The court found that s 408C(1)(a) does not require the offender to be the owner of the property so applied. [39], [40].  To “apply” property involves a dealing with it, usually by exerting some influence upon it affecting its form, location or attributes.  A dishonest application of property will involve deflecting it from the purposes of the person to whom the property belongs. [43].

His Honour observed that where an individual undertakes the dealing as a director of a company, it may be that the company also applies the property.  It does not at all follow that it is the company, and not the individual, who has applied the property. [44].

The appellant also argued the circumstance of aggravation under s 408C(2)(c) was not established because the property was possessed by AFQ and then BRGOC, but never by the appellant himself. Again, he argued that the Crown case did not “pierce the corporate veil”. [47].

The term “possession” under s 408C(2)(c) is defined by s 1 to include control of property whether or not the property is within the actual possession or custody of a person. That definition is not confined to possession according to property law concepts. [49]. Therefore, the court found that the evidence established that the appellant directed the flow of the funds into and out of the relevant accounts. [50].

The appeal was dismissed. [74].

K Gover of Counsel