Krecichwost v R [2012] NSWCCA 101

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Krecichwost v R [2012] NSWCCA 101 Hearing dates: 5 April 2012 Decision date: 25 May 2012 Before: Macfarlan JA at [1] Schmidt J at [101] Grove AJ at [102] Decision: Appeal dismissed. Catchwords: CORPORATIONS - dishonest use of position as director to gain personal advantage - s 184(2)(a) Corporations Act 2001 - factors relevant to dishonesty - companies alleged to be profitable and solvent - relevance of consent of sole beneficial shareholder and absence of third party disadvantage - payments purportedly for commission and management fees when services to justify such payments not performed

CORPORATIONS - accounts - determination of profit - unrealised capital gains - steps necessary before profit distributable as dividends - whether independent valuation necessary - importance of views of accounting profession

CRIMINAL LAW - appeal - conviction - whether verdict unreasonable - whether admission of irrelevant but prejudicial material - whether trial proceeded on erroneous assumption as to company's ability to pay dividends - whether failure to direct jury on factors relevant to dishonesty - whether failure to direct jury on appropriate time to consider issue of dishonesty - whether Crown's submission as to financial position of company unfounded

CRIMINAL PRACTICE AND PROCEDURE - fresh evidence - principles - witnesses' evidence alleged to be inconsistent with evidence given by them at subsequent trial of co-accused - whether significant possibility of acquittal if evidence had been available at trial Legislation Cited: Companies (South Australia) Code Criminal Appeal Rules Cases Cited: Angas Law Services Pty Ltd (in liquidation) v Carabelas [2005] HCA 23; 226 CLR 507 Deputy Commissioner of Taxes (SA) v Executor Trustee and Agency Co of SA Ltd (Carden's Case) (1938) 63 CLR 108 Clark v Inglis [2010] NSWCA 144; 79 ATR 447 Davies v R [1937] HCA 27; 57 CLR 170 Dimbula Valley (Ceylon) Tea Co Ltd v Laurie [1961] Ch 353 Federal Commissioner of Taxation v Sun Alliance Investments Pty Ltd (in liq) [2005] HCA 70; 225 CLR 488 Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 Macleod v The Queen [2003] HCA 24; 214 CLR 230 QBE Insurance Group Ltd v Australian Securities Commission (1992) 38 FCR 270 In re the Spanish Prospecting Company Ltd [1911] 1 Ch 92; [1908-10] All ER Rep 573 Industrial Equity Ltd v Blackburn (1977) 2 ACLR 421 Peters v R [1998] HCA 7; 192 CLR 493 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 SKA v R [2011] HCA 13; 243 CLR 400 Texts Cited: R P Austin and I M Ramsay, Ford's Principles of Corporations Law, LexisNexis Butterworths, 14th ed (2010) Category: Principal judgment Parties: Eric Krecichwost (Appellant) Regina (Respondent) Representation: Counsel: W Abraham QC/S Fitzpatrick (Appellant) M Wigney SC/S Callan (Respondent) Solicitors: Clamenz Corporate Lawyers (now Clamenz Evans Ellis) (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2009/218724 Decision under appeal Citation: R v Eric Krecichwost Date of Decision: 2011-04-08 00:00:00 Before: Woodburne DCJ File Number(s): 2009/218724