R v Kostandy - Subsequent Appeal Dismissed, QCA

R v Kostandy [2026] QCA 75 (24 April 2026)

Last Updated: 24 April 2026

SUPREME COURT OF QUEENSLAND

| CITATION: | R v Kostandy [2026] QCA 75 |
| PARTIES: | R v

KOSTANDY, Maged Sobhy
Naguib

(applicant) |
| FILE NOS: | CA No 30 of 2025 DC No 279 of 2023 |
| DIVISION: | Court of Appeal |
| PROCEEDING: | Subsequent Appeal Leave Application |
| ORIGINATING COURT: | District Court at Southport – Date of Conviction: 5 June 2023
(Jackson KC DCJ) |
| DELIVERED ON: | 24 April 2026 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 18 September 2025 |
| JUDGES: | Bond JA, Brown JA, Bleby AJA |
| ORDER: | Application dismissed. |
| CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – SECOND AND SUBSEQUENT
APPEALS – where the applicant was convicted of five
counts of fraud after
a trial – where the applicant’s first conviction appeal was
dismissed in 2024 – where the
applicant contends there is new and
compelling evidence and s 671AC of the Criminal Code (Qld) applies
– whether grounds of appeal allege new and compelling evidence within the
meaning of s 671AB(4) and s 671AB(6)
– whether grounds of appeal seek
to merely relitigate arguments already considered in first conviction
appeal Criminal Appeals Act 2004 (WA), ** s 35 Criminal Code (Qld), s 671AB, s 671AC

Criminal Law Consolidation Act 1935 (SA), s
353A

Criminal Procedure Act 1921 (SA), s 159

Criminal Procedure
Act 2009 (Vic), s 326A, s 326B, s 326C

Bromley v The King (2023) 98 ALJR 84; [2023] HCA 42,
considered Luo v The King [2025] WASCA 36, considered

R v Keogh
(No 2) (2014) 121 SASR 307; [2014] SASCFC 136, considered

Roberts v
The Queen (2020) 60 VR 431; [2020] VSCA 58, considered

Van Beelen v
The Queen (2017) 262 CLR 565; [2017] HCA 48, considered

Vella v
The State of Western Australia (No 2) [2025] WASCA 70, considered |
| COUNSEL: | The applicant appeared on his own behalf M B Lehane for the
respondent |
| SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions
(Queensland) for the respondent |
[1] BOND JA: The applicant seeks the leave of this Court to advance a
subsequent appeal on the ground of “new and compelling evidence”
within the meaning of s 671AB of the Criminal Code.

[2] For the reasons given by Brown JA it is not even reasonably arguable that
the evidence on which the applicant relies could be
regarded as
“compelling”. The application for leave must inevitably fail.

[3] I agree with Brown JA that any more detailed consideration of what must
be demonstrated by an applicant in order to obtain a grant
of leave to advance
a subsequent appeal should be postponed to a subsequent occasion.

[4] I agree with the order proposed by Brown JA.

[5] BROWN JA: The applicant seeks leave to make a second appeal to
the Court against his conviction for five counts of fraud in May 2023 on the
ground that there is new and compelling evidence.

[6] The applicant had previously appealed against the conviction, which was
dismissed on 11 October 2024.

The legislation

[7] Provision was made in Queensland in 2024 for the possibility of a second
appeal by provisions introduced in the Criminal Code.
They include:

“ 671AC Right of subsequent appeal

(1) This section applies if—

(a) a person appealed, or applied for leave to appeal, against a conviction of
the person under section 668D; and (b) the Court, under chapter division 2—

(i) refused to grant leave to appeal; or (ii) dismissed the appeal in whole or in part; or

(iii) determined the appeal and dealt with the person under section 668F.
(2) The person may make a subsequent appeal to the Court, with the leave of
the Court, against the person’s conviction on a
ground that there is fresh
and compelling evidence or new and compelling evidence.

...

671AB Fresh and compelling evidence and new and compelling
evidence—meanings

(1) This section applies for the purpose of deciding under this chapter
division whether there is fresh and compelling evidence or
new and compelling
evidence.

(2) Evidence is fresh if—

(a) the evidence was not adduced in the proceedings in the court of trial before
which the appellant was convicted; and (b) either‑—

(i) the evidence could not have been adduced in the proceedings in the court of
trial with the exercise of reasonable diligence by
the defence; or (ii) the evidence could have been adduced in the proceedings in the court of
trial with the exercise of reasonable diligence by the
defence but was not
because of the incompetence or negligence of a lawyer acting for the appellant
in those proceedings.
(3) For subsection (2)(b)(i), the defence is taken not to have failed to
exercise reasonable diligence in relation to the evidence
if—

(a) the prosecution failed to comply with the prosecution’s obligation
mentioned in section 590AB(1) in relation to the evidence;
and (b) the defence did not discover the evidence only because of the failure to
comply with that obligation.
(4) Evidence is new if—

(a) the evidence was not adduced in the proceedings in the court of trial before
which the appellant was convicted; and (b) the evidence could have been adduced in the proceedings in the court of
trial with the exercise of reasonable diligence by the
defence.
(5) Under this chapter division, evidence that is both fresh evidence and new
evidence is taken to only be fresh evidence.

(6) Evidence is compelling if—

(a) the evidence is reliable; and (b) the evidence is substantial; and

(c) the evidence—

(i) is highly probative in the context of the issues that were in dispute in the
proceedings in the court of trial before which the
appellant was convicted;
or (ii) would have substantially weakened the case for the prosecution in the
proceedings in the court of trial.
(7) Evidence that would be admissible under this chapter division is not
precluded from being fresh and compelling evidence or new
and compelling
evidence merely because it would have been inadmissible—

(a) in the proceedings in the court of trial before which the appellant was
convicted; or (b) in earlier proceedings in the Court for an appeal or subsequent appeal
against the appellant’s conviction.”
Background

[8] The applicant was found guilty of 5 counts of fraud following a
trial.

[9] A summary of the charges was accurately set out by Dalton JA in the first
appeal as follows: [1]

“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.

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.

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.

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.

Count 4 concerned the appellant dishonestly inducing Emad Tadros
to invest an amount of over $100,000 in the adult diaper scheme.

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.” (emphasis in original)

[10] The Crown case at trial was that there never were any business ventures
in respect of importing medical supplies or adult diapers,
as had been
represented to various of the complainants by the applicant, and that bank
records showed that after the complainants
deposited money into accounts as
directed by the applicant, he took that money and used it for his own purposes.
The Crown case
was that there were in fact no businesses and the payments were
dishonestly induced. It was admitted in the trial that the complainants
did in
fact make the payments to the applicant which the Crown relied upon, in the sums
the Crown alleged.

[11] The applicant did not give or call evidence at the trial. The defence
at trial contended that the complainants had paid money
to the applicant so he
could facilitate payments to people on their behalf or at their request to
persons in Egypt. Witnesses called
on behalf of the Crown were cross-examined
to that effect. The closing address of the applicant focussed particularly upon
a screenshot
of text messages said to have been exchanged between the applicant
and a witness Lillian Ibrahim which apparently referred to monies
to be paid by
the applicant to her relative in Egypt and discrepancies in the witnesses’
evidence called on behalf of the Crown.

Previous Appeal

[12] The applicant appeared for himself in his previous appeal as he does in
the present application. He raised a number of grounds
which are discussed
below. In this application he seeks to again raise a number of those
grounds.

[13] Evidence was called at the appeal in relation to the allegations that
there had been a failure to make proper disclosure and
as to the conduct of the
applicant’s legal representatives. The applicant, his counsel and
solicitor and the investigating
officer, Detective McCafferty gave evidence. In
particular, there was affidavit evidence from his solicitor and trial counsel
that
the applicant’s phone data had been disclosed prior to trial, some in
English and some in Arabic. [2] There
was also evidence that during the trial, inquiries were made by defence trial
counsel of the police as to whether further
phone data could be obtained. The
evidence showed that the police did obtain further data which they provided to
the defence during
the trial, following which there was an adjournment of the
trial for 1-2 hours. However, after reviewing the material, the
applicant’s
counsel considered the material was largely irrelevant and no
further adjournment was required. Counsel and his instructing solicitor
gave
evidence that they used search terms to review the material.

[14] All witnesses were cross-examined by the applicant, particularly in
relation to the question of whether and the extent to which
disclosure had been
made of his phone data.

[15] After each of the grounds of appeal were subject to extensive analysis
by Dalton JA (with whom Mullins P and Williams J agreed)
the appeal was
dismissed. [3] Relevant to the present
application, her Honour:

(a) considered and analysed all the evidence presented at the trial and
determined that the appeal ground that the verdict was unreasonable
and could
not be supported having regard to the evidence was not established; (b) considered allegations that the prosecutor had breached his duty of
disclosure and to accord fairness, including by failing to
call Christeen Rofail
and not tendering “my phone search data” at trial. Justice Dalton
found that there was nothing
suggesting that the prosecutor should have called
Christeen Rofail. In relation to the second complaint, the applicant asserted
that a police detective, Detective McCafferty, gave his barrister 8,000 pages of
material from his “phone search data”
on the second last day of
trial. Justice Dalton determined that proper disclosure had been made by the
Crown prior to the trial
and that a further examination was carried out
during the trial at the request of the applicant’s counsel. No detail was
given
by the applicant on the appeal as to what was in the documents that would
have been relevant much less decisive in the trial. Other
allegations made
against the prosecutor were also dismissed;

(c) rejected a complaint that the summing up was defective because the trial
judge told the jury that the police “did not complete
downloads of the
complainants’ phones” when it would have been more accurate to say
that the police did not undertake
downloads of the complainants’ phones.
Her Honour did not consider that the direction was ambiguous, but in any event
considered
that every complainant had been cross-examined as to whether or not
their electronic devices had been given to the police, to which
each complainant
gave evidence that they had not. The police were similarly cross-examined in
this regard, and stated that they
had not examined the complainants’
phones;

(d) rejected the criticisms made by the applicant of his counsel in relation to
the conduct of the trial which were similar to those
made against the
prosecutor;

(e) rejected a complaint that his “phone search data” which was
extended to information from “Two HP laptops, Two
Samsung mobile
telephones, a Blackberry mobile telephone and Two IPads and a Samsung
Tablet” [4] said to have
contained evidence of his innocence was not presented at his trial by his
counsel. Further, the applicant complained
of a failure of his counsel to seek
an adjournment after 8,000 pages of information were produced on the second last
day of trial.
Trial counsel deposed that the data disclosed by the prosecution
was voluminous containing some messages in English and some in
Arabic. The
applicant translated the messages for counsel that were in Arabic. Trial
counsel deposed that the applicant had been
requested to obtain and provide
records to support his instruction about money transfers but the applicant had
failed to provide
the records. The messages from the phone data did contain
messages about money transfers but counsel found they did not assist his
case
and in particular “the [applicant] 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.” [5] Detective
McCafferty gave evidence that Cellebrite software had become more proficient
over the years and the applicant’s
counsel asked during the trial whether
a further Cellebrite examination could be conducted of the
applicant’s phone. [6] A further search was carried out of two Samsung phones seized from the
applicant, which included more messaging between the applicant
and Lillian
Ibrahim who was also referred to as “Lily Church”. The officer was
cross-examined about that messaging by
the applicant’s counsel.
Justice Dalton accepted the evidence of the applicant’s former
lawyers and Detective McCafferty
in preference to the applicant’s
evidence. Her Honour rejected the complaints as to disclosure in that an
adjournment of the
trial was
necessary; [7]

(f) rejected a complaint that a loan agreement with Mr Tadros, which was said to
have been relied on in civil proceedings by Mr Tadros,
was not tendered. The
applicant’s counsel deposed that they had the full loan agreement which
showed Mr Tadros as the lender
and the applicant as a borrower and that
a reference in the schedule to the applicant being the lender was
inconsistent with the
rest of the document and was likely to be a formatting
error. The applicant’s counsel stated the loan agreement as a whole
did
not prove the applicant loaned money to Mr Tadros and in fact was consistent
with the Crown’s case that Mr Tadros loaned
the applicant
money. [8] Justice Dalton
considered that there was nothing in the appeal point and that “the
[applicant’s] affidavit material
and submissions are simply obfuscation
and nonsense”. [9]
What is the “new and compelling evidence” relied upon by the
applicant

[16] The applicant raised many of the same grounds canvassed in his previous
appeal as his proposed grounds of appeal in this application.
As was observed
by the Western Australia Court of Appeal in Luo v The
King, [10] the provisions
enabling a subsequent appeal do not provide an occasion to relitigate or
reformulate an earlier failed appeal.

[17] The applicant identified three text exchanges as being evidence which is
“new and compelling”. The three messages
were extracted from a
Cellebrite analysis report which was disclosed by the prosecution on the second
last day of trial and were
identified as exhibits NJC-23, NJC-24 and NJC-25 to
the applicant’s affidavit sworn 24 February
2025. [11] The applicant’s
affidavit also attaches letters from his previous solicitors, identifying the
material as material disclosed
from the prosecution prior to and during the
course of the trial. [12]

[18] The applicant asserts, again as he did in his first appeal, that
Detective McCafferty and the Crown failed to make proper disclosure.
He goes so
far as to suggest that there was dishonesty by the officer and the prosecution
as well as his own legal representatives
in their previous affidavits considered
by the Court of Appeal in 2024 in relation to this issue. There is however
nothing to support
those suggestions nor to suggest that the position is
significantly different from that which was argued by him before the Court
of
Appeal in 2024.

[19] In addition to the messages contained in NJC-23, NJC-24 and NJC-25, the
applicant contends that there is a “lot more evidence,
but the evidence is
not in my possession. The evidence is with the prosecution. If the prosecution
disclosed everything in their
possession I would be able to show bank account,
bank transfer, more references, recorded phone calls which would be more
compelling
evidence to put in front of the court but I don’t have this
material”. [13] He identified
these exhibits as the messages he was able to extract from the Cellebrite
analysis material that was provided by his
previous lawyers but contended that
he was not able to do a search of the Cellebrite analysis material because
access to laptops
and computers in prison is very restricted.

[20] While the applicant took steps to obtain the material from his previous
solicitors, which he did not appear to do for the previous
appeal, he has only
produced three text message exchanges in support of his application. While he
again contends that there is other
electronic evidence from other computers and
phones seized from him, there is no evidence that such material was relevant,
let alone
‘concealed’ as he asserts. That was also the subject of
complaint in his previous appeal.

[21] The applicant contends that the three messages are compelling, and could
have been put to witnesses in cross-examination to show
their complaints were
false. Although two of the messages are in Arabic, he contends in his affidavit
that they show that: [14]

“A. The first text messages is a conversation between me and Email
[sic] Botros the 3 rd complainant in which he provided me with his
bank Account Number in Egypt and a confirmation that I transferred the
entire amount
of money he previously transferred to my Bank Account in Australia
(Exhibit NJC-23).

1. The
   second text message is from George Ibrahim the 1 st complainant,
   promising that he will repay his debts to me as soon as possible (Exhibit
   NJC-24).

2. The
   third text messages is from Lillian Ibrahim the 3 rd complainant
   dated May 2019, in which she was asking to borrow from me a further 3.5 million
   Egyptian bounds (Exhibit NJC-25).”
   [22] The applicant
   does not depose to the actual translation from Arabic in respect of NJC‑23
   or NJC-24, as opposed to stating
   what he says is the effect of that
   evidence.

[23] The applicant contends the messages are probative and substantially
weaken the Crown case as they are evidence of the fact that
the complainants
were in fact in debt to him and asking him for loans, contrary to their evidence
that he was in debt to them and
that he made false allegations about businesses
to obtain investments. He also contends that the three messages are reliable
given
they have been downloaded using Cellebrite and contain metadata providing
information as to the messages sent.

[24] The respondent contends that none of the evidence is compelling and the
matters raised simply seek to re-argue that which was
already argued in the
previous appeal.

Principles in determining whether to grant leave

[25] The Queensland provisions providing for an application for a second
appeal have not been the subject of any detailed consideration
to date. Similar
legislation exists in other States, which has received some consideration,
however none are in the same terms as
the Queensland provisions. The onus lies
on the applicant to establish an entitlement to leave to appeal under s 671AC
against a
conviction on a ground that there is fresh and compelling or new and
compelling evidence.

[26] There is a threshold question of what level of satisfaction is required
for the granting of leave. It is not specified in the
section. It may be the
Court has to be satisfied that the evidence is new and compelling or that the
Court only needs to be satisfied
that there is a reasonable argument that the
evidence is new and compelling. The fact that leave to appeal is required
before an
applicant can in fact proceed to appeal may suggest the latter.
Section 671AC(2) however refers to a person making a subsequent
appeal with
leave on the ground that there is fresh and compelling evidence or new and
compelling evidence, which may suggest the
former construction. The Crown
contended that the first construction is the correct one and that the Court
needs to be positively
satisfied that the evidence meets the statutory
definition. However, it was not the subject of any detailed argument. There
are
divergent approaches in other States.

[27] In Victoria and Western Australia,
authorities have held that the Court must be positively satisfied that the
evidence meets
the threshold standard. Section 326C(1) of the Victorian Criminal Procedure Act 2009 provides for the grant of leave if the Court of
Appeal is satisfied that there is fresh and compelling evidence. The Victorian
Court
of Appeal has construed the Victorian equivalent to s
671AC [15] as requiring the Court to
be positively satisfied that there is fresh and compelling evidence as a
precondition to leave being granted.
It is not sufficient for the purpose of
leave to establish that it is reasonably arguable that the evidence has the
qualities of
being fresh and
compelling. [16] A similar approach
has been adopted in Western Australia in Luo v The
King. [17] In Western Australia, s 35F of the Criminal Appeals Act 2004 (WA) is again differently worded
from the Queensland Act. The Western Australian Court of Appeal in Luo appears to have taken the view that the court must determine that there is fresh
and compelling or new and compelling evidence in
order to grant
leave. [18]

[28] The South Australian Court of Criminal Appeal in R v Keogh (No
2) [19] however ** considered
that the test for permission to appeal was the ‘reasonably arguable’
standard under similar
legislation. [20]

[29] It is not necessary for this Court to make any determination as to what
is the proper level of satisfaction required before leave
can be granted under s
671AC, nor absent proper legal argument would it be appropriate to do so. In
the present case, on either
construction, the applicant cannot meet the
requisite threshold. The evidence which has been presented by the applicant
could not
even satisfy the lower threshold that there is a reasonable argument
that the evidence is new and compelling, let alone a higher
threshold that
there is new and compelling evidence.

[30] The High Court in Bromley v The
King [21] has provided guidance
as to the criteria to be considered in determining whether evidence is
“compelling”. It considered
a South Australian provision
similar to the Queensland provision, save it did not contain a similar
subsection to s 671AB(6)(c)(ii)
of the Criminal Code. Following Van Beelen v
The Queen, [22] the majority
stated: [23]

“It was also undisputed that the three requirements for evidence to be
‘compelling’ in s 353A(6)(b) of the CLCA,
that evidence is
compelling if it is reliable, substantial, and highly probative in the context
of the issues in dispute at the trial
of the offence, are to be understood and
applied as explained in Van Beelen v The Queen. Accordingly: (a) the
words ‘reliable’, ‘substantial’, and ‘highly
probative’ are to be given
their ordinary meaning; (b) each criterion has
work to do, but they will commonly overlap; (c) ‘reliable’ means
a credible
and trustworthy basis for fact finding; (d)
‘substantial’ means of real significance or importance with respect
to the
matter the evidence is tendered to prove; (e) evidence that is reliable
and substantial will often but not always also be ‘highly
probative’
in the context of the issues in dispute at the trial; and (f) this is because
the issues in dispute at the trial
will depend upon the circumstances of the
case.” (footnotes omitted)

There is no compelling evidence

[31] It is uncontentious that the evidence relied upon by the applicant is
“new”. The real question is whether the evidence
is compelling.
Under s 671AB(6), evidence is compelling if:

(a) the evidence is reliable; (b) the evidence is substantial; and

(c) the evidence:

(i) is highly probative in the context of the issues that were in dispute in the
proceeding in the court of a trial before which
the applicant was convicted;
or (ii) would have substantially weakened the case for the prosecution in the
proceedings in the court of trial.
[32] For the following reasons the applicant has not demonstrated that the
evidence is compelling or arguably compelling such that
leave should be
granted.

[33] First, while the evidence of the messages is reliable insofar as it has
been downloaded from the applicant’s mobile phones
using Cellebrite and
contains metadata providing further information about the messages sent, the
applicant has not provided reliable
evidence of the content of the messages
contained in NJC-23 and NJC-24. Those messages are in Arabic and have not been
independently
translated nor has the applicant, who apparently can speak Arabic,
deposed to the literal translation of the messages. His affidavit
and
submissions at best state what he says is the effect of the messages.

[34] Secondly, the messages are neither substantial nor are they highly
probative in the context of the issues in dispute in the trial,
nor would they
have substantially weakened the case for the prosecution in the
trial. [24] That is the case even if
one accepted the applicant’s contentions as to the content of NJC-23 or
NJC-24.

[35] The text messages in NJC-23 are said to be text messages between the
applicant and one of the complainants, Mr Botros. The applicant,
in his
submissions, contends that in that conversation the applicant confirmed he had
transferred E£2.5 million Egyptian Pounds
to Mr Botros’ bank
account in Egypt in June 2019, and they were participating in an international
money transfer and not in
a business venture. Mr Botros gave evidence at
the trial and was cross-examined on the basis he was introduced to the applicant
so he could send money to Egypt. He was also cross-examined that in May 2019 he
had provided the applicant with a destination account
so that the applicant
could transfer his $257,000 to Egypt in accordance with the applicant’s
counsel’s suggestion as
to the purpose of the $257,000 payment.
Mr Botros denied all of these suggestions and said that the communication
referred to was
to enable the applicant to repay the $257,000. At that time in
May 2019, the applicant was in Egypt and did not have any Australian
dollars.
Mr Botros had therefore given him details of an account which he held in
Egypt. [25] The fact that he had
provided such details and they had had an exchange was therefore consistent with
the Crown’s case. The
messages in NJC-23 would not have advanced the
defence case or more relevantly eliminated or substantially weakened the
prosecution
case if they had been presented at trial.

[36] The text message in NJC-24 was dated 27 September 2018 and was in
Arabic. There again was no translation deposed to but according
to the
applicant it was a message from one of the complainants, George Ibrahim,
promising he was going to pay back his debt to the
applicant as soon as
possible. According to the applicant, this was compelling evidence that Mr
Ibrahim was making false claims
that he had invested money at the
applicant’s request insofar as the message acknowledged Mr Ibrahim
owed the applicant money,
and was not a complaint from Mr Ibrahim that he had
not been repaid by the applicant.

[37] Even on the applicant’s version as to content of the messages, the
evidence is not compelling. The message, on the applicant’s
own version,
is vague and not obviously linked to the payments in question. The alleged
admission of debt, said to have been made
in NJC-24 on the applicant’s
version of events, is ambiguous. Aside from the applicant’s submissions,
there is no detail
of what the debt was, when it arose and any detail
demonstrating that it related to the monies the Crown contended were paid by the
Ibrahims as a result of the applicant’s inducements of promised business
ventures which did not exist.

[38] Further, Mr Ibrahim was challenged at trial as to his evidence. Mr
Ibrahim was cross-examined by the applicant’s counsel,
where it was put to
him that the monies that he and his family sent to JAC Trade (a company
controlled by the applicant) and the
applicant were monies that Mr Ibrahim had
requested him to remit to a party in Egypt where they would be delivered to a
third party. [26] He was challenged
in cross-examination in relation to his version of events including it being put
to him that he was not telling
the
truth. [27] He was specifically
cross-examined to the effect that the sum of $50,000, which he contended was a
part repayment made by the applicant
to him, was in fact a loan from the
applicant to him. Dr Ibrahim denied all of these suggestions. He also denied
that transfers
made by Ms Ibrahim to the applicant were made so that the
applicant could transfer those monies to people in Egypt on
Dr Ibrahim’s
behalf.

[39] While Dr Ibrahim was an important witness, other evidence was called
supporting aspects of his evidence from his son, his wife
and another friend, Ms
Malzard, which supported Dr Ibrahim’s evidence in some respects, as did
the evidence of Mr Botros, another
complainant, and Mr Haigh, who said he
acted at the behest of the applicant in saying he was a representative of
Chemist Warehouse
and giving false information to Dr Ibrahim to assist the
applicant. The evidence is not compelling or arguably compelling.

[40] As to the third tranche of messages contained in NJC-25, the messages
are largely in English. To the extent they are in English
they do not raise the
same issues as to the reliability of the content of the messages as NJC-23 and
NJC-24. According to the applicant,
Ms Ibrahim was asking for a further loan,
particularly E£3.5 million EGP, equivalent to around AUD$400,000, at the
time at which
the applicant provided the loan to her. The messages themselves
do not state that the monies were being provided as a loan. The
applicant in
submissions stated he had made phone calls to her asking how much she needed to
borrow and which resulted in her then
texting the message referring to
E£3.5 million EGP. That was not the subject of his affidavit evidence
before this court. **** There is no reliable evidence of any loan.

[41] Further, this issue was again raised at trial. Ms Ibrahim was
cross-examined in relation to a screen shot of a message which
was later placed
in evidence, [28] where she was said
to have requested that the applicant pay a total of $318,500 AUD transfers to
JAC Trade ACC to her relative in
Egypt. She denied the messages which were put
to her. [29] She denied that funds
transferred to JAC Trade and the applicant were so the applicant could give the
equivalent amount to a third
party in Egypt on Ms Ibrahim’s behalf.
She was also cross-examined about her suggestion that there was a business
arrangement
for the importation and distribution of adult diapers between Dr
Ibrahim and the applicant. Evidence that a diaper business was
the subject of
discussions was supported by evidence of the Ibrahims’ neighbour, who was
present at their house at the same
time as the applicant. While it is true that
the messages put in cross-examination to Ms Ibrahim were screenshots, whereas
NJC-25
contained metadata information which increases its evidential value to
some extent, the messages are not highly probative nor would
they have
substantially weakened the case for the prosecution in the trial. At best, the
messages may have been used to further
challenge Ms Ibrahim’s credibility
insofar as she could not deny their existence, however it could have only had a
minor effect
in the absence of evidence of any loan. The messages could not be
regarded as evidence significantly advancing the applicant’s
case or
weakening the prosecution’s case.

[42] The applicant has not established that NJC-23, NJC-24 or NJC-25
constitute compelling evidence or evidence that is reasonably
arguable as being
compelling within the meaning of s 671AB(6). As they were the only matters of
evidence identified as being new
and compelling the application must fail.

[43] As to the applicant’s remaining contentions that there is new and
compelling evidence revealing misleading conduct by the
prosecutors in
concealing vital evidence from both the defence and the court, manipulation of
forensic reports, misleading representations
by police officers involved in the
investigation and incompetence of his defence counsel, these matters were all
canvassed in the
previous appeal. In that appeal, the applicant had the
opportunity to cross-examine defence counsel as well as Detective McCafferty
and
there is no new and compelling evidence giving any support to those arguments.
He has presented no additional basis upon which
this Court would revisit the
findings of the Court of Appeal. It is unnecessary to consider any of those
matters further.

[44] While the applicant sought to raise an argument not raised in the
previous appeal that a new indictment presented on the day
of trial with similar
offences was an abuse of process, the allegation is spurious. There is no
evidence of any abuse of process.
The new indictment was presented without
objection.

[45] In the circumstances, leave should not be given and the application must
fail.

Orders

[46] The order of the Court should be:

1. Application dismissed.

[47] BLEBY AJA: I would dismiss the application for the reasons given
by Brown JA.

[1] [2024] QCA 190 [3]-[8].

[2] [2024] QCA 190 at [143].

[3] [2024] QCA 190 at [169].

[4] [2024] QCA 190 at [141].

[5] [2024] QCA 190 at [144].

[6] [2024] QCA 190 at [145].

[7] [2024] QCA 190 at [148].

[8] [2024] QCA 190 at [155].

[9] [2024] QCA 190 at [156].

[10] [2025] WASCA 36 at [47],
considering a provision similar to the Queensland legislation. See below at [27].

[11] AB Vol 1 112-121.

[12] NJC-11 and NJC-12 of the
affidavit of the applicant sworn 24 February 2025; AB Vol 1 61-64.

[13] T 1-11/41-45.

[14] Affidavit of the applicant
sworn 24 February 2025 at [36].

[15] See s 326A - s 326C Criminal Procedure Act 2009 (Vic).

[16] Roberts v The Queen [2020] VSCA 58; (2020) 60 VR 431 at [44] and [45].

[17] [2025] WASCA 36 at [48].

[18] Luo v The King [2025] WASCA 36 at [48] - [53]; followed in Vella v Western Australia (No
2) [2025] WASCA 70 per Mazza and Mitchell JJA at [76].

[19] (2014) 121 SASR 307; [2014]
SASCFC 136 at [88].

[20] See s 353A of the Criminal Law Consolidation Act 1935 (SA) now repealed and re-enacted as s 159 of the Criminal Procedure Act 1921 (SA).

[21] (2023) 98 ALJR 84; [2023]
HCA 42.

[22] (2017) 262 CLR 565; [2017]
HCA 48.

[23] (2023) 98 ALJR 84; [2023]
HCA 42 at [8].

[24] See s 678D(4) Criminal
Code (Qld).

[25] AB Vol 1 243 at [82].

[26] AB Vol 2 368/19.

[27] AB Vol 1 374/10.

[28] Exhibit 30.

[29] AB Vol 2 407-408.