Regina v Thomas Douglas Watkins [2005] NSWCCA 164

Reported Decision : 153 A Crim R 434

New South Wales Court of Criminal Appeal

CITATION: Regina v Thomas Douglas Watkins [2005] NSWCCA 164

HEARING DATE(S): 26 April 2005, 28 April 2005

JUDGMENT DATE: 1 June 2005

JUDGMENT OF: Grove J at 1; Barr J at 6; Howie J at 56

DECISION: Appeal allowed - quash the conviction and the resulting sentences - order a new trial.

PARTIES: Regina, Thomas Douglas Watkins

FILE NUMBER(S): CCA 2004/2614

G Rowling COUNSEL: P Boulten SC

S Kavanagh SOLICITORS: Bilbie Dan

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1147

LOWER COURT JUDICIAL OFFICER: Woods QC DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2614

GROVE J BARR J HOWIE J

1 JUNE 2005 REGINA v THOMAS DOUGLAS WATKINS Judgment 1 GROVE J: I have had the advantage of reading the judgment of Barr J in draft form. I agree with his conclusions regarding grounds 1 and 2 and his remarks concerning other grounds. 2 His Honour has observed that, absent the evidence which caused the trial to miscarry, the Crown case was strong to the point of being almost overwhelming. It was perceptibly strong beyond that description. When imposing sentence the trial judge described that part of the appellant's evidence which asserted that a large company, with audit procedures in place, permitted the chief accountant to put cheques into his private account in the fashion suggested as "manifest nonsense and treated by the jury as such". 3 It is difficult to appreciate why the Crown, given the strength of its case, chose to embark upon the tender of evidence not directly touching upon the crimes charged which it must have known was at least, arguably inadmissible and, for the reasons given by Barr J, was in fact inadmissible. 4 The strength of the Crown case, absent the purported tendency or coincidence evidence, is so powerful as to have given me significant pause before declining to apply the proviso to s 6(1) of the Criminal Appeal Act and dismissing the appeal. However, in the light of the concession by Crown counsel in the appeal (who did not prosecute in the District Court) and the centrality of the credibility of the appellant to the issues of trial I share the conclusion that it cannot appropriately be applied in this case. 5 I agree with the orders proposed by Barr J. 6 BARR J: This is an appeal by Thomas Douglas Watkins against his conviction following a trial by jury in the District Court on thirty counts, each of which charged that he, being an officer of a body corporate, deposited its cheque to the credit of his own bank account with intent to cheat and defraud the body corporate. The appellant also seeks leave to appeal against the resulting sentences. The Crown appeals against the sentences. 7 The appellant was born on 2 November 1938. He trained and qualified as an accountant. During the early 1990s he was engaged as a consultant to a wholesale timber merchant called Tasman KB Pty Limited (Tasman KB), which was setting up a computer system. In April 1998 he joined the company permanently as financial administrator and accountant. Among his responsibilities was the preparation of cheques for the payment of creditors' accounts. 8 When the appellant joined Tasman KB it was half-owned by members of the Frost family. Mr Robert Frost was Chairman of Directors. Mr Neil Frost, his son, was an Alternate Director with Robert Frost's son-in-law, David McAndrew. All three men took an active interest in the management of Tasman KB. Each had authority to sign the company's cheques. 9 The remainder of the shares in Tasman KB were owned by New Zealand interests. In June 2001 a company called Newkoy, which was jointly owned by Neil Frost and Mr McAndrew, bought out the New Zealand interests. At all material times Mr Gordon Wood, the appellant's uncle, was company secretary. 10 Tasman KB had a number of bank accounts with Westpac Banking Corporation in Queensland, Victoria and New South Wales. Its principal account, from which funds were drawn to pay creditors, was kept in Brisbane. Payments by Queensland debtors were deposited into that account. Payments by New South Wales and Victorian debtors were deposited into an account at St Marys, Sydney, and funds were routinely transferred from that account to the principal account in Brisbane. 11 The Crown case was that on each of thirty occasions, the first on 16 July 1999 and the last on 2 April 2002, the appellant hand-wrote on the Brisbane account a cheque payable to "Westpac – St Marys". He had no authority to sign cheques and asked Mr McAndrew to sign each one. Mr Mc Andrew did so, believing that the appellant was transferring funds from the Brisbane account to Tasman KB's St Marys account in order to pay creditors. On each occasion the appellant left a gap, varying between two and three centimetres wide, between the printed instruction "Pay" and the name of the payee. After Mr McAndrew had signed each cheque the appellant inserted into that gap his own name, thus: "T Watkins – ". He deposited the thirty cheques into a private account that he had opened at Westpac at St Marys. On two of the cheques he wrote his account number as well as his name. The amounts of the thirty cheques ranged from just under $39,000.00 to more than $240,000.00. The total amount involved was $1, 911, 000.00.