With his successful appeal against his 2020 convictions for fraud and insolvent trading, former Kleenmaid founder and director Andrew Young may have won that fight but possibly not the war.
Following the failure of Kleenmaid in 2009, an ASIC investigation and prosecution by the CDPP, there were a number of successful convictions of officers of Kleenmaid (see my LinkedIn article 19 March 2020, when I erroneously reported on the Final chapter in the Kleenmaid saga).
After a convoluted and lengthy trial, Young was convicted on two counts of fraud and 17 counts of insolvent trading, and sentenced to nine years of imprisonment.
Young appealed his convictions, principally on the primary grounds that the convictions were unreasonable and not supported by evidence.
In the decision delivered on 15 June 2021, the Court of Appeal dismissed or had no reason to consider Young’s main grounds of appeal but held that the trial Judge had erred by not referring to the jury to decide the question of whether Young was fit to be tried.
Young had become self-represented mid-trial when he withdrew instructions to his lawyers, proffered evidence of serious mental ill-health and made an application to invoke the process under S645 of the Criminal Code (Qld). This process requires the jury to consider if the person charged of an indictable offence is of sound mind.
The trial judge declined to put that issue to the jury, after the Mental Health Court determined that Young was fit to be tried in relation to State charges, but only if he “had proper representation or assistance”.
Young therefore succeeded on the one ground that the trial judge should have put to the jury the question of his mental fitness to stand trial.
The end result of the appeal? Young’s convictions were set aside but as he had not succeeded on the main grounds of his appeal, a new trial was ordered.
A pyrrhic victory? Young is now 68 years old. Another trial is a looming possibility. And if the S645 of the Criminal Code process is invoked in the new trial, and the jury finds that Young is not of sound mind, the court must order the person (Young) to be admitted to an authorised mental health service to be dealt with under the Mental Health Act 2016.
Young’s first two trials in 2016 and 2017 ended with both juries discharged before returning a verdict, and Young became self-represented on the 15th day of the third 59-day trial in 2019. Now, over 12 years after the collapse of Kleenmaid, Young faces being tried for the fourth time.