R v Kostandy – Subsequent Appeal Dismissed, Evidence Not Compelling

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R v Kostandy [2026] QCA 75

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R v Kostandy [2026] QCA 75

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. [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. [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. [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. [4] I agree with the order proposed by Brown JA.
5. [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. [6] The applicant had previously appealed against the conviction, which was dismissed on 11 October 2024.
   The legislation

7. [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

8. (1) This section applies if—

9. (a) a person appealed, or applied for leave to appeal, against a conviction of the person under section 668D; and

10. (b) the Court, under chapter division 2—

11. (i) refused to grant leave to appeal; or

12. (ii) dismissed the appeal in whole or in part; or

13. (iii) determined the appeal and dealt with the person under section 668F.

14. (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. (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. (2) Evidence is fresh if—

3. (a) the evidence was not adduced in the proceedings in the court of trial before which the appellant was convicted; and

4. (b) either ­ —

5. (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

6. (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.

7. (3) For subsection (2)(b)(i), the defence is taken not to have failed to exercise reasonable diligence in relation to the evidence if—

8. (a) the prosecution failed to comply with the prosecution’s obligation mentioned in section 590AB(1) in relation to the evidence; and

9. (b) the defence did not discover the evidence only because of the failure to comply with that obligation.

10. (4) Evidence is new if—

11. (a) the evidence was not adduced in the proceedings in the court of trial before which the appellant was convicted; and

12. (b) the evidence could have been adduced in the proceedings in the court of trial with the exercise of reasonable diligence by the defence.

13. (5) Under this chapter division, evidence that is both fresh evidence and new evidence is taken to only be fresh evidence.

14. (6) Evidence is compelling if—

15. (a) the evidence is reliable; and

16. (b) the evidence is substantial; and

17. (c) the evidence—

18. (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

19. (ii) would have substantially weakened the case for the prosecution in the proceedings in the court of trial.

20. (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—

21. (a) in the proceedings in the court of trial before which the appellant was convicted; or

22. (b) in earlier proceedings in the Court for an appeal or subsequent appeal against the appellant’s conviction.”
    Background

23. [8] The applicant was found guilty of 5 counts of fraud following a trial.

24. [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)

1. [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.

2. [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

3. [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.

4. [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.

5. [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.

6. [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:

   1. (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;
   2. (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;
   3. (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;
   4. (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;
   5. (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]
   6. (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

7. [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.

8. [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]

9. [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.

10. [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.

11. [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.

12. [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).

B. 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).

C. 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).”

1. [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.
2. [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.

3. [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

4. [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.

5. [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.

6. [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]

7. [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]

8. [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.

9. [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

1. [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:
   1. (a) the evidence is reliable;
   2. (b) the evidence is substantial; and
   3. (c) the evidence:
   4. (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
   5. (ii) would have substantially weakened the case for the prosecution in the proceedings in the court of trial.
2. [32] For the following reasons the applicant has not demonstrated that the evidence is compelling or arguably compelling such that leave should be granted.
3. [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.
4. [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.
5. [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.
6. [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.
7. [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.
8. [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.
9. [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.
10. [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.
11. [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.
12. [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.
13. [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.
14. [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.

15. [45] In the circumstances, leave should not be given and the application must fail.
    Orders

16. [46] The order of the Court should be:

17. Application dismissed.

18. [47] BLEBY AJA: I would dismiss the application for the reasons given by Brown JA.

Footnotes

[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) 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.

Editorial Notes

• Published Case Name: R v Kostandy
• Shortened Case Name: R v Kostandy
• MNC: [2026] QCA 75
• Court: QCA
• Judge(s): Bond JA, Brown JA, Bleby AJA
• Date: 24 Apr 2026

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	DC279/23 (No citation)	05 Jun 2023	Date of conviction after trial of five counts of fraud (Jackson KC DCJ and jury).
Appeal Determined (QCA)	[2024] QCA 190	11 Oct 2024	Appeal against conviction dismissed: Dalton JA (Mullins P and Williams J agreeing).
Appeal Determined (QCA)	[2026] QCA 75	24 Apr 2026	Application to advance subsequent appeal dismissed: Brown JA (Bond JA and Bleby AJA agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case Name	Full Citation	References
Bromley v The King	(2023) 98 ALJR 84	3 citations
Bromley v The King	[2023] HCA 42	3 citations
Luo v The King	[2025] WASCA 36	4 citations
R v Keogh (No 2)	(2014) 121 SASR 307	2 citations
R v Keogh (No 2)	[2014] SASCFC 136	2 citations
R v Kostandy	[2024] QCA 190	9 citations
Roberts v The Queen	(2020) 60 VR 431	2 citations
Roberts v The Queen	[2020] VSCA 58	1 citation
Van Beelen v The Queen	[2017] HCA 48	2 citations
Van Beelen v The Queen	(2017) 262 CLR 565	2 citations
Vella v The State of Western Australia (No 2)	[2025] WASCA 70	2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.