A former financial adviser found guilty of diverting almost $6 million from clients to a South Australian abalone farm will face a retrial after his conviction was quashed.
Ben Jayaweera was jailed in 2019 after a Brisbane jury found him guilty of dishonestly causing detriment to several clients through his company Growth Plus Financial Group between September 2013 and October 2015.
Jayaweera was accused of convincing investors to transfer $5.9 million into a scheme he claimed was investing in cash, property, shares, aquaculture and agriculture.
However the funds were instead allegedly diverted into a South Australian abalone farm, which was operated by entities under his control, but eventually failed.
Jayaweera was sentenced in the Brisbane District Court to 12 years behind bars and required to serve half before becoming eligible to apply for parole.
But Queensland Appeal Court judges found a global approach taken to evidence relating to the dishonesty element of offences made it important the jury was directed to focus on a count by count basis on whether Jayaweera had "the state of knowledge, belief or intent which the Crown alleged he had".
"The directions which the trial judge gave on the element of dishonesty were inadequate and occasioned a miscarriage of justice," justices Hugh Fraser and John Bond said in a judgment published on Friday.
Justice Peter Callaghan said the case against Jayaweera "appears strong" but counsel failed to take proper instructions and cross-examine witnesses.
"That means that it is impossible to assess the real strength of the Crown case," he added.
Justice Callaghan said there was a concern the jury could have used a forbidden chain of reasoning in reaching its verdict.
"There was need for a clear direction to the jury as to the use that they could make of a conclusion about guilt on one count, or, given the way the charges were drafted, on even a component of a count," he said.
