New South Wales District Court CITATION: R v Thomas Douglas WATKINS [2006] NSWDC 147 HEARING DATE(S): 10/07/2006 - 03/08/2006 - Trial 10/07/2006 - 11/07/2006 - Application JUDGMENT DATE: 11 July 2006 EX TEMPORE JUDGMENT DATE : 07/11/2006 JUDGMENT OF: Berman SC DCJ DECISION: Application for permanent stay is refused CATCHWORDS: Criminal Law - Permanent Stay of Proceedings CASES CITED: Crimes Act 1900 PARTIES: Crown Thomas Douglas Watkins FILE NUMBER(S): 05/11/0742 COUNSEL: S. Higgins (Solicitor) - Crown A. Martin - Accused SOLICITORS: NSW DPP Nikola Velcic & Associates (Watkins) JUDGMENT 1 HIS HONOUR: I have before me an application for a permanent stay of proceedings made by Thomas Douglas Watkins who has been indicted on a series of forty-three charges, each relating to an allegation that he took money in effect not belonging to him, in the following way. 2 It is suggested that Mr Watkins who was employed by a company known as Tasman KB Pty Limited, provided to a person authorised to sign cheques on behalf of that company a series of forty-three cheques with words similar to "pay Westpac" on them. It is alleged by the Crown that after the signature was applied to the cheques, the accused has inserted between the word "pay" and the word "Westpac" his own name and then deposited the proceeds of those cheques to his own bank account. 3 This is a retrial and so it is possible to ascertain the accused's response to the Crown's allegations. The accused does not deny that he deposited the proceeds of the cheques to his personal bank account, but he says that this was done pursuant to an arrangement that he made with officers of the company and in particular two officers who were authorised to sign cheques on behalf of the company. The accused's defence is that at one stage he was having trouble getting signatures on the company cheques and one of the officers complained about the time it took for him to deal with cheques presented to him for signature. The suggestion made by the officers of the company was that they would sign cheques, the effect of which was to deposit large sums of money in the accused's personal bank account and that he would then pay creditors of the company from his personal bank account. 4 It is accepted by everyone that this is an unusual arrangement. It was of course denied by the officers of the company called by the Crown. The accused accepts that it was an unusual arrangement. There are a number of problems with accepting it of course, not the least of which is why a company would entrust sums of money to a person who was not authorised to sign company cheques. The Crown case was described by one member of the Court of Criminal Appeal who heard the appeal against Mr Watkins' earlier conviction as overwhelming and by another member as perhaps even stronger than that, but that only goes to show the importance of ensuring that the accused is tried fairly. 5 The application for permanent stay is made because it is said by Mr Martin on behalf of the accused that he cannot get a fair trial due to a number of missing documents. The decision as to whether to grant a permanent stay of a criminal prosecution involves the application of competing principles. On the one hand it is well established that it is in the interests of the community and the criminal justice system in particular, that those who are charged with criminal offences face trial for those offences. Those charged with criminal offences should not be able to easily obtain immunities from prosecution because there is a public interest in the due administration of the criminal law. On the other hand, Courts will not allow themselves to become instruments of oppression or part of an abuse of process so the community's interests have to be balanced with those of those charged with serious criminal offences, there is a need to ensure that such people are tried fairly. 6 The onus is on Mr Watkins to demonstrate that circumstances are such that he would suffer an unacceptable disadvantage or prejudice because of the missing evidence. The first thing he has to establish of course is that the evidence is missing and then must, as I have said, demonstrate that because of that fact, he suffers an unacceptable disadvantage. What I mean by unacceptable is that a trial of the offences would be an unfair one. The trial would be unfair if it involved the risk of the accused being improperly convicted. It is of course not enough for the accused to demonstrate some prejudice. Not all imperfections result in an unfair trial. Not all imperfections result in there being an abuse of process. What is required is that the applicant for the stay, Mr Watkins, demonstrate that the prejudice is so great that it would lead to a trial which is unfair. Of course, in making that determination, I have to consider not only what is missing but what can be done to remedy any unfairness and here one of the most important things that a trial judge can do is to fashion appropriate directions to be given to a jury. 7 With those principles in mind, let me turn to the present proceedings. Attention has focussed during the course of the evidence and submissions on what is said to be four areas where documents are missing. The procedures of Tasman KB Pty Limited were such that when a cheque was prepared, there first should have come into existence, a cheque requisition. There are forty-three charges on the indictment and requisitions in relation to only three of those counts relating to three cheques have been found. The accused says that he needs the cheque requisitions or copies of them in order to support his case which is that the cheques were paid into his account in order that Tasman KB Pty Limited creditors could be paid from his personal bank account. 8 After the accused was arrested at his home, a police officer, Detective Sergeant Gates asked him whether he had any documents relating to Tasman KB Pty Limited. The accused said that he did. The officer and Mr Watkins then went upstairs to a study where the officer took possession of a large stack of documents. Mr Watkins helpfully provided the officer with two cardboard boxes with which to transport the documents away from the accused's home. Detective Sergeant Gates says that he looked through the boxes at some stage but saw nothing of relevance to these proceedings. He saw nothing that could be put before the Court by way of evidence relating to either the two charges the accused was arrested upon or other matters about which Detective Sergeant Gates was then aware. 9 He took the documents back to Dee Why police station and then contacted Tasman KB Pty Limited. In response to that phone call Mr and Mrs Frost attended at the police station. The documents in the two boxes were inspected. One particular document exhibit A on the voir dire was identified by Mrs Frost as being perhaps relevant to the matters and so she gave it to Detective Sergeant Gates. The remaining documents were taken back to the offices of Tasman KB Pty Limited in Belrose and placed in the boardroom. There the documents were inspected by a number of people. Firstly by Mrs Frost, secondly by an auditor Ms Jodie Davey, now known as Jodie Alden, having married in the meantime. There is evidence that where documents could be identified as relating to particular Tasman KB records or files, the documents were returned to those files or placed in those files. Other documents were bundled up and kept separately. 10 It is said by Mr Martin on behalf of the accused that contained within those two boxes may well have been either cheque requisitions or copies of them. However, the evidence of Mr Frost, Mrs Frost and Mrs Alden was to the contrary. Mrs Linda Frost said that she found nothing relating to the cheques that were stolen. She found nothing that related to the forty-three cheques when she went through the boxes with Ms Davey as she was then known, not could she recall any reconciliations of director's loans or prepayments to the Austral group being in those boxes. The evidence that Ms Alden and Mr Frost was to similar effect although Mr Frost's inspection of the contents of the documents was much more cursory than that of Mrs Frost and Mrs Alden. In those circumstances, I am not satisfied that the applicant has established that there were ever any cheque requisitions in the two boxes or copies of them. 11 It has to be said that even if the conduct of Mr Gates in returning the boxes to Tasman KB was not a breach of procedures written down anywhere, it would have been better had he either retained possession of the documents or at least copied them before returning them to Tasman KB. In those circumstances I have taken into account that it is conduct of an instrument of the prosecution, namely the police officer, which has led to this aspect of the application and borne that factor in mind when considering whether the accused has overcome the onus placed upon him. But even given that situation, the evidence before me satisfies me that there were no cheque requisitions, or copies of them, in the two boxes handed to Detective Sergeant Gates and inspected by those from Tasman KB Pty Limited. 12 Attention has also focussed in the course of submissions on two letters, copies of which I have before me as exhibit 10 on the voir dire. They are both letters purportedly signed by Mr McAndrew, an officer of Tasman KB Pty Limited, which, if they were accepted, would be capable of advancing the case for the accused. It is said by Mr Martin that the originals of those documents cannot be found and that it is important to have the originals because the document examiner requires the originals in order to identify whether it truly is Mr McAndrew's signature on those letters. It is a part of the Crown case that these documents are forgeries of some kind, perhaps done by way of the accused forging Mr McAndrew's signature or the accused taking a legitimate signature and by means of some photocopy or computer process creating the documents in their present form. Of course, if the originals of such documents were available, then assuming what the accused says is true, namely that they were genuine letters produced and signed by Mr McAndrew, then his case would be advanced. However, there is no evidence that there were ever originals of those documents in existence. There is a stamp which I can not read but which I am told is a District Court stamp on a letter of 11 October 2000 but that does not establish that it was the original of that document which was produced to the Port Macquarie District Court. Further there is, as I understand it, no evidence that these copy documents were ever shown to a document examiner and his or her opinion asked as to whether the purported signatures of Mr McAndrew were genuine. Again it is the Crown case that these documents were forgeries and there is an available inference that they were produced by the accused. 13 The Crown points out that there was evidence from Ms Swadling that she prepared at the accused's request, a document similar to the letter of 29 June 2000 and that these documents first surfaced on the Crown case by being produced by the accused as annexures to affidavits in civil proceedings before the criminal proceedings commenced. I am not satisfied that it can be said that there is evidence which is missing. I am not satisfied that there were ever originals of the documents of 29 June 2000 and 11 October 2000, purportedly signed by Mr McAndrew. 14 Attention is next focussed on what is said to be the absence of monthly reports provided by the accused to the directors of Tasman KB Pty Limited. The evidence is most confusing. It does not establish however, that there is any difference between the situation which existed at the first trial before his Honour Judge Woods and the situation which now exists. It does not establish that such monthly reports were lost in the flood and it does not establish that such documents are essential to or even important in the accused's defence. As I have said, the material before me does not establish that there is any difference between what was available at the first trial and what is now available and I note that there was no application for a permanent stay based on missing evidence at the first trial, despite the fact that the accused was represented by experienced counsel and no complaint by senior counsel who appeared for the accused on his appeal, that there was any miscarriage of justice occasioned by any missing documents. Of course, that does not preclude Mr Martin who now appears for the accused from genuinely and accurately taking the view that such documents are important. He says that the reports are required because they are secondary evidence as to the contents of the cheque requisitions which I have spoken about earlier. As I understand what is available, and having seen the copies of the monthly reports which are in existence, (they were tendered yesterday) the contents of those monthly reports would not significantly advance the accused's position beyond what is available in other records still kept by Tasman KB. The situation is similar in relation to other documents which the accused says can not be found concerning loans made to the directors of the company by the company itself. 15 The result is that I am not satisfied that it can be accurately said that many of the documents are actually missing because it cannot be said that they were ever in existence in the first place. Even if all of the documents which I have referred to are truly missing, that is even if I accept that there were cheque requisitions in those two boxes, that there were originals of the letters purportedly signed by Mr McAndrew, that there were and are no longer in existence the monthly reports and loan documents, I would still not be satisfied that there is such a fundamental defect in the conduct of this trial and in the accused's ability to defend himself, that the trial of the accused would be unfair. As I mentioned earlier, not all imperfections in a trial result in permanent stay of proceedings and it is important to bear in mind that a trial judge is able to deal with matters of prejudice by directing the jury accordingly. It may well be a case where as the evidence unfolds, I will be giving the jury strong directions about how they should approach the matter in the event that they find that documents which were in existence are now missing. Given the strength of directions which can be given and I am not saying that they will be, but which can be given if the evidence in the trial justifies them, I am satisfied that any residual prejudice which the accused suffers, can be overcome by such directions, such that the accused will have a fair trial. 16 The application is therefore refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.