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Former adviser wins appeal, convictions quashed

A former adviser who was found guilty of fraud and sentenced to 12 years in prison in 2019 will have his case retried, having successfully argued there was a miscarriage of justice.

Ben Jayaweera was a financial adviser and director of now-defunct Growth Plus Financial Group, based in Queensland. In 2019 he was found guilty of six charges of dishonestly causing detriment to clients when, between 2013 and 2015, he advised clients to invest in an unregistered managed investment scheme that was actually just an abalone farm in South Australia which he controlled.

Jayaweera had told clients it was a diversified fund, investing in cash, property equities, aquaculture and agriculture, and induced various investors to transfer money - including from SMSFs - into the fund, known as the Australian Diversified Sector Income Fund. It was also alleged he invested some clients' superannuation into the vehicle without their knowledge.

It was also alleged that throughout the offending, Jayaweera transferred small amounts back to investors to create the impression they were earning interest on their investment.

The fraud amounted to about $6 million and largely impacted retirees or those readying for retirement, some of which were forced to sell their homes and other assets, or delay retirement.

The abalone farm was subsequently wound up and liquidators of Growth Plus advised there would be no returns provided to investors.

Jayaweera faced a three-week trial, was convicted, and was subsequently sentenced to 12 years' prison with a non-parole period of six years. However, last week the Court of Appeal of the Supreme Court of Queensland ordered Jayaweera face a retrial, on grounds including that the trial judge's directions to the jury resulted in a miscarriage of justice.

Grounds of appeal raised during the appeal hearing included that Jayaweera's counsel during the trial was incompetent, and that the judge failed to direct the jury as to what the alleged dishonesty was "in so far as the summing up included a direction that there was no direct evidence before the Court as to the state of mind of the appellant when he made the alleged misrepresentations".

"It does not follow from the fact that someone makes a misrepresentation to another person which causes them to suffer a pecuniary detriment that the person making the misrepresentation has been dishonest. It is a truism that misrepresentations can be made innocently or negligently, but not necessarily dishonestly," appeal documents read.

"Nor does it follow from the fact that an agent has made an unauthorised transfer from a principal's account, that the agent has done so dishonestly. It is also a truism that agents may honestly exceed the bounds of their authority."

At the time, the judge determined that Jayaweera's conduct involved a high level of planning, sophistication and persistence. In appealing the conviction, it was argued that there was no direct evidence presented during the trial of the relevant state of Jayaweera's knowledge, belief or intent at the time of the conduct.

Read more: Ben JayaweeraGrowth Plus Financial GroupAustralian Diversified Sector Income Fund