Osborne v R; R v Osborne [2017] NSWCCA 11

Osborne v R; R v Osborne [2017] NSWCCA 11

It was not open to the jury to be satisfied beyond reasonable doubt that Graham Kelly was beneficially entitled to Leominister's assets, as control alone is insufficient in law and fact to establish the existence of a trust. The evidence did not exclude the possibility that Bende Holdings, not Graham Kelly, was the beneficiary. Because at least one of the alternative bases put to the jury could not be sustained, the verdicts are unsafe and must be quashed.

Parties
Appellant / Respondent: Raymond Clifford Osborne; Respondent / Appellant: Regina
Jurisdiction
Australia
Judgment Date
17 February 2017
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence
Outcome
Appeal against conviction allowed; convictions quashed; verdicts of acquittal entered; Crown appeal against sentence dismissed.
Legal Topics
Fraud Against the Commonwealth, Taxation Offences, Trust Law, Bare Trust, Directions to Jury, Unreasonable Verdict
Criminal Law Fraud Against the Commonwealth Taxation Offences Trust Law Bare Trust Directions to Jury Unreasonable Verdict

Case Brief

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Parties

Raymond Clifford Osborne

Appellant / Respondent

Regina

Respondent / Appellant

Procedural Posture

Criminal Appeal / Appeal From Conviction and Sentence

Legal Issues

  1. 1 Whether the evidence supported the existence of a bare trust between Leominister and Graham Kelly
  2. 2 Whether the Crown proved Graham Kelly derived assessable income not disclosed in his tax returns
  3. 3 Whether jury directions conflated control with beneficial ownership and trust

Ratio Decidendi

It was not open to the jury to be satisfied beyond reasonable doubt that Graham Kelly was beneficially entitled to Leominister's assets, as control alone is insufficient in law and fact to establish the existence of a trust. The evidence did not exclude the possibility that Bende Holdings, not Graham Kelly, was the beneficiary. Because at least one of the alternative bases put to the jury could not be sustained, the verdicts are unsafe and must be quashed.

Court Disposition

Appeal against conviction allowed; convictions quashed; verdicts of acquittal entered; Crown appeal against sentence dismissed.

Orders

  • Grant leave to appeal against conviction.
  • Allow appeal against conviction.