McNamara v The Queen - [2021] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
MCNAMARA v THE QUEEN
[2021] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, the Honourable Justice Livesey and the Honourable Justice Bleby)
28 January 2021

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF CROWN CASE
Appeal against conviction.
The appellant was convicted on a trial by judge alone in the District Court of South Australia of 10 counts of theft, seven counts of aggravated theft and 16 counts of using fabricated evidence in judicial proceedings.
The appellant was a solicitor and director of a legal practice. The prosecution case was that over the course of 18 months, on 17 separate occasions, the appellant purported to invest funds from two deceased estates held in his practice’s statutory trust account in a trust known as the Andamooka Opal Stone Unit Trust (AOSUT), but instead used those funds for his own purposes. After a complaint by the beneficiaries of one of the estates, the Law Society determined to appoint a supervisor to the statutory trust account. The appellant resisted this appointment, and in proceedings brought in the Supreme Court he filed false documents in an attempt to show that the purported investments in AOSUT were genuine.
The defence case was, essentially, that the estate funds were invested in the AOSUT in a manner that did not require the transfer of funds. Rather, investments in AOSUT were recorded by way of ledger entries, and the documents filed in the Supreme Court were genuine documents recording those investments.
The trial judge found that he was satisfied beyond reasonable doubt that no funds from either of the deceased estates were ever invested with the AOSUT, and found the appellant guilty of all of the charged offences.
The appellant appeals the conviction on numerous grounds.
Held, per Nicholson, Livesey and Bleby JJ, granting permission to appeal on grounds 1, 4, 5 and 6, refusing permission to appeal on ground 7, and dismissing the appeal:
1. The prosecution case did not change between opening and address;
2. Whether reasons are adequate in a given case is a highly contextual question. The prosecution case hinged on the key issue whether the purported investments were legitimate. The trial judge’s reasons dealt sufficiently with the matters actually in contest between the parties;
3. The trial judge did not reduce his consideration to a contest of 'word against word' or otherwise err in the application of the burden and standard of proof;
4. While the trial judge’s express engagement with his obligation under s 34R was not well put, the use to which he put evidence of other fabricated documents, that is, as circumstantial evidence that the investments were a sham, is sufficiently clear in all of the circumstances.
Criminal Law Consolidation Act 1935 (SA) ss 50, 131, 132, 243(b); Evidence Act 1929 (SA) ss 34R, 34P, referred to.
R v McNamara & Pitman [2019] SADC 128; Douglass v The Queen (2012) 86 ALJR 186; DL v The Queen (2018) 266 CLR 1, discussed.
R v Keyte (2000) 78 SASR 68, considered.

MCNAMARA v THE QUEEN
[2021] SASCFC 2

Court of Criminal Appeal: Nicholson, Livesey and Bleby JJ

THE COURT: On 3 September 2019, the appellant, Stephen McNamara, was convicted following a trial by judge alone in the District Court of 10 counts of theft, seven counts of aggravated theft and 16 counts of using fabricated evidence in judicial proceedings. The matter had a difficult history. A trial commenced on 2 July 2018, but after 5 days the judge declared a mistrial and discharged the jury. A second trial began on 6 May 2019. In the course of that trial, two jurors were discharged for illness and then a third, on what would have been the final day of trial. Again, the judge was required to discharge the remaining jurors and declare a mistrial.
Following that declaration, Mr McNamara, together with his co-accused, Mr Pitman, filed applications for trial by judge alone. The Director of Public Prosecutions did not oppose this. The accused were re-arraigned and pleaded not guilty. The prosecutor asked the judge to receive the transcript of his opening in the second trial, tendered all of the evidence that he had adduced in that second trial and asked the judge to rely on the transcript of his final address in that trial.
Counsel for Mr McNamara followed the same course. Only counsel for Mr Pitman had not addressed prior to the second jury being discharged. Following that address, the trial judge reserved his verdicts.
The trial judge found Mr McNamara guilty on all counts and acquitted Mr Pitman of the single charge against him.
Mr McNamara applied for permission to appeal. On 1 May 2020, the Chief Justice referred the question of permission on Grounds 1, 4, 5, 6 and 7, and the substantive argument on those grounds, to the Full Court (Court of Criminal Appeal), to be heard together with Grounds 2 and 3, with respect to which permission to appeal was not required.
At the hearing of the appeal, how the prosecution case had been articulated, and whether the prosecution had changed its case in the course of the trial, were key issues. What follows is a summary of the prosecution case as articulated in the trial judge’s reasons for verdict, bearing in mind that the appellant challenges the accuracy and sufficiency of this articulation and argues that it represents an unfair change in the prosecution case.
The prosecution case
Mr McNamara was a solicitor and director of the legal practice, Commercial and General Law. The firm had a statutory trust account. Mr McNamara had also established a trust called the Legal Costs Trust (LCT), for the purpose of enabling clients to invest trust funds. The Trustee of the LCT was Legal Management Consultancy Services (LMCS) SA Pty Ltd.
In 2006, an employee of the practice, Ms Helen Roach, drafted wills for two clients, Neil Heanes and Mildred Matthews. Ms Roach was appointed executor in each will. Ms Roach left the employ of the practice in 2008 and moved to New South Wales.
The grants of probate and collection of estate funds
Neal Heanes died on 27 May 2011. Mr McNamara advised Ms Roach of this. Ms Roach did not wish to continue to act as executor. Mr McNamara suggested that she renounce her executorship, and that he apply for a grant of probate, as he had been appointed alternate executor in the event of Ms Roach’s death. The Supreme Court, however, refused Mr McNamara’s application for a grant of probate. At Mr McNamara’s suggestion, Ms Roach then applied for probate, having arranged with Mr McNamara that she would continue as executor, but that he would ‘do the work’. Probate was granted to Ms Roach on 29 February 2012. From that time, Mr McNamara acted as her solicitor in respect of the Heanes estate. The estate funds were paid into the statutory trust account of the practice.
The estate, worth about $480,000, was the subject of a dispute between Mr Heanes’s four children, to whom it had been left in unequal shares. That dispute was settled by a Deed of Family Arrangement on 17 August 2012. However, Mr McNamara did not then distribute the estate. Mr Jordan of Carpenter and Associates, solicitor for one of the children, began to press him to do so. Mr McNamara told him that he could not distribute the estate funds immediately, as they had been invested pending the resolution of the dispute and could only be paid out once they had matured, or else the estate would suffer ‘break costs’. In response to further pressure from Mr Jordan, Mr McNamara said that he was making enquiries of the ‘investment entity’, the ‘investment manager’ and the ‘funds manager’. He did not identify the entity with which the funds were said to be invested.
Mildred Matthews died on 23 December 2012. On 23 January 2013, an employee of the practice, Ms Greiger, who was working under the supervision of Mr McNamara on a restricted practising certificate, emailed Ms Roach (now in Victoria) and made arrangements similar to those in place for the Heanes estate, namely that probate would be granted to Ms Roach and that Mr McNamara would act as solicitor for the Matthews estate. Probate was granted on 14 May 2013. Ms Matthews’ estate was worth about $500,000. She had left small bequests to some friends and the Salvation Army, and the remainder to her niece and nephew, Julie Roberts and Phillip Matthews, in equal shares.
Ms Roberts and Mr Matthews were unaware of the bequests until Ms Roberts obtained a copy of the will in the course of an unrelated inquiry relating to a family tree. When they discovered the existence of the bequests, Ms Roberts’ husband, Phillip Roberts, made inquiries of Mr McNamara. Mr McNamara advised him that the firm was awaiting the release of funds from Ms Matthews’ superannuation fund.
This correspondence occurred after the grant of probate on 14 May 2013. In fact, some moneys from the Matthews estate had been paid into the statutory trust account in January 2013. In any event, on 30 October 2013, Mr McNamara wrote to Mr and Mrs Roberts in terms which included the following:[1]
On being advised of your late aunt’s passing we immediately set about contacting Ms Roach…
In late January 2013 we were able to locate Ms Roach who had subsequently moved from northern NSW to Victoria. We were able to obtain her instructions and consent to obtain probate of the Will. As a large portion of the financial assets of the estate had been collected at that time, and given our experience of delays that had been occasioned in the Probate Office, we sought the Executor’s instructions and had the funds that we had in hand invested in term deposits. The Executor has an obligation to preserve and earn interest on the estate if there is going to be an anticipated period of time before Probate is obtained and all the requirements of the Will satisfied before a distribution can take place…
I appreciate that you had made inquiries of the content of the Will prior to the date Probate was granted, but until Probate is granted in respect of the Will that was lodged it is not appropriate to comment on its contents as the Probate on that Will may for some reason not be granted or alternatively the Will may be contested. Our office, and more importantly me should have obtained instructions from Ms Roach to advise you of the contents of the Will once Probate was obtained. I apologise for not doing so…
In respect to money that has come into the estate, this has been invested in term accounts that mature in January 2014 and will be paid out at the end of January or early February 2014. The fund that it is invested in has been used by Executors on numerous occasions and pays 3% above the RBA cash rate calculated monthly. I have asked for a statement from the funds so that you can see what is invested and what the return is, and we will provide this to you as soon as it comes to hand.
[1] R v McNamara & Pitman [2019] SADC 128 at [38].
On 8 November 2013, Mr McNamara emailed Mr and Mrs Roberts a document headed:
Legal Costs Trust
OWAA Avestra Credit Fund
Statement of Investment
This certificate purported to record an investment of $465,000 with an ‘anticipated payment on redemption’ of $487,194.63.[2]
[2] ‘OWAA’ denotes ‘Opal World Andamooka Australia Pty Ltd’. This reference and the reference to ‘Avestra Credit Fund’ are discussed below.
At no stage in his correspondence with the beneficiaries of the Heanes and Matthews estates, or their representatives, did Mr McNamara mention an entity known as the Andamooka Opal Stone Unit Trust, a trust which was to assume considerable significance in the prosecution.
Counts 1-17 – theft and aggravated theft
The prosecution case was that over the course of 18 months, on 17 separate occasions, Mr McNamara transferred estate funds held in the statutory trust account to the LCT, before using those funds for his own purposes, such as paying his own home loan and his staff wages. Those 17 occasions comprise the counts of theft and aggravated theft.
Prior to setting out the evidential basis of the prosecution case on these counts, it is helpful to describe, briefly, the defence case. This is, essentially, that the estate funds were invested in the Andamooka Opal Stone Unit Trust (AOSUT) in a way that did not actually require the transfer of funds to AOSUT. The trial judge described Mr McNamara’s case in the following manner:[3]
First, he transferred money from his statutory trust account into the [LCT] … Then, the moneys were placed with AOSUT by way of journal entries: the investments were received on behalf of AOSUT by crediting the relevant estate with the amount of each transfer in AOSUT’s ledger. The secretary for AOSUT then instructed Mr McNamara to disburse the funds, still in Mr McNamara’s control in the LCT, by making payments for and on behalf of AOSUT; for example, by paying legal fees said to be owed to Mr McNamara’s law firm. Having been invested, the estate funds accrued interest and, in the case of the Heanes estate, some interest payments were made to the beneficiaries. But AOSUT failed to pay the Matthews investments when they fell due; Mr McNamara made repeated attempts to get the AOSUT to pay what it owned but, to this day, it has not done so. He believes the funds were eventually invested by a Dr Volker Flick with Deutsche Bank, in Germany, where they remain.
On this explanation, then, the funds themselves were never transferred to AOSUT (as indeed, they were not). Rather, investments in AOSUT were recorded by way of ledger entries.
[3] R v McNamara & Pitman [2019] SADC 128 at [11].
The fate of the funds was the subject of evidence from a forensic accountant, Ms Fiona Panagis. Ms Panagis traced all of the estate moneys. The tracing exercise showed that all of the transfers the subject of the 17 charges of theft were used for Mr McNamara’s personal or business expenses. On each occasion, the amount the subject of the charge was transferred from the statutory trust account to the LCT account, and from there to Mr McNamara’s personal or business account when there were no other funds available.
In this manner, the Heanes estate funds were exhausted by twelve transfers, the subject of the first twelve counts, by August 2012. This was around the same time as the dispute over the Heanes estate was settled by a Deed of Family Arrangement, and Mr Jordan began pressing Mr McNamara to distribute the estate.
On 14 January 2013, approximately $280,000 of the Matthews estate was paid into the statutory trust account. On 22 and 23 January 2013, Mr McNamara withdrew sums of $170,000 and $100,000 respectively from those funds and paid them into the LCT. Then on 23 January 2013, he withdrew $260,000 from the LCT and paid $156,000 to the solicitor for the minor beneficiaries of the Heanes estate, in full satisfaction of their entitlements, and $104,000 to Mr Jordan. Mr Jordan’s client was finally paid out on 6 June 2013, one day after Mr McNamara had withdrawn a further $160,000 from the Matthews estate and paid it into the LCT. These three withdrawals from the Matthews estate, made to satisfy the entitlements to the Heanes estate, are the subject of Counts 13, 14 and 15.
Counts 16 and 17 related to further withdrawals from the Matthews estate of $25,000 and $10,000 respectively, both in July 2013.
It was a particular of each of the 17 counts that the dealings were without the consent of Ms Roach, the executor in each case. The trial judge accepted the evidence of Ms Roach (contrary to the evidence of Mr McNamara, which he rejected) that she knew nothing about any purported investment of funds in the Heanes estate. He also accepted that prior to 31 January 2014, Mr McNamara had never sought her instructions about investing any moneys in the Matthews estate and had never told her of any purported investment of those funds. She neither knew of, nor had any dealings with, AOSUT.
Before coming to the trial judge’s conclusion with respect to these counts, it is necessary to turn to Mr McNamara’s relationship with the AOSUT and its personnel, and the balance of the counts on the information.
The AOSUT and Counts 18 and 20-34 – Using fabricated evidence
The AOSUT
Mr McNamara had previously acted for Mr Sotirios Portellos and his wife, Ms Dorothea Tomazos (sometimes spelt ‘Tomazou’), who at the relevant times for present purposes, lived in Greece. Mr McNamara had also acted for a company, Opal World Andamooka Australia Pty Ltd (OWAA). Mr Portellos had been a director of OWAA, as had one John Pitman, the father of Philip Pitman, the co‑accused at the trial.
The AOSUT was established in January 2011. Mr Portellos was a trustee until about December 2011, when Mr Philip Pitman was appointed as a trustee. Ms Tomazos was a trustee and secretary from 1 January 2011.
The Law Society Complaint and the injunctive proceedings
When the beneficiaries of the Matthews estate remained unpaid, the funds from that estate having been paid out to satisfy the entitlements of the beneficiaries of the Heanes estate, the Matthews estate beneficiaries complained to the Law Society of South Australia. The Law Society determined to appoint a supervisor to the statutory trust account of the legal practice.
Mr McNamara commenced proceedings in the Supreme Court seeking an injunction preventing the appointment. Both he and Mr Pitman filed affidavits in support of the application on 22 December 2014. Each of those affidavits exhibited a letter signed by Mr Pitman to Mr Natale Rugari, an accountant registered with the Law Society to audit solicitors’ statutory trust accounts (and who had audited the statutory trust account of Commercial and General Law for many years). The letter (the Rugari letter) asserted that the funds in the two estates had been invested.
Mr McNamara filed a further affidavit on 23 January 2015. This affidavit exhibited 16 documents entitled ‘Certificates of Investment’.
The Rugari letter is the subject of Counts 18 and 19 on the Information (Count 19 relating to Mr Pitman), and the 16 ‘Certificates of Investment’ are the subject of Counts 20 to 34.
Each Certificate of Investment was headed:
Legal Costs Trust
OWAA Avestra Credit Fund
Certificate of Investment
Each Certificate of Investment further recorded the amount of the purported investment, the ‘date received’, the term of the investment and the ‘Class of Units’.
The prosecution case was that ‘Avestra’ referred to investment businesses that did in fact exist at the time of the purported investments, but that neither OWAA nor the AOSUT were ever customers of those businesses. In examination‑in-chief, Mr McNamara was asked about the appearance of the word ‘Avestra’ in each Certificate of Investment. He said that estate funds were invested with the AOSUT using the terms and conditions of the Avestra Credit Fund, ‘because they had previously applied to invest with them and it was easier to copy that investment’.[4]
[4] T 507.21-26.
The trial judge found that, at all relevant times, Avestra Asset Management Limited was a funds management business and Avestra Capital Proprietary Limited was a financial advisory business. Both of these businesses operated from Queensland. Neither had any record of investment or history of investments with any individual, company or trust involved in the trial. Neither business issued the Certificates of Investment.

There was no issue that Mr McNamara had created the Certificates of Investment himself.[5]
[5] T 528.15.
The trial judge characterised the prosecution case with respect to the fabricated documents counts as follows:[6]
The prosecution case is that, having stolen the estates’ funds from his trust account, Mr McNamara tried to cover his tracks by pretending to have invested those funds in AOSUT. After the Law Society intervened Mr McNamara, with Mr Pitman’s assistance, filed false documents in the Supreme Court with a view to proving that those purported investments were genuine.
He characterised the defence case as follows:[7]
It is Mr McNamara’s case that the Rugari letter and the certificates filed in the Supreme Court proceedings are genuine documents setting out investments actually made with AOSUT. He denies that he created any false documents.
On appeal, these characterisations were contentious, for reasons which we explain below. For now, it is sufficient to note that the certificates did not refer to AOSUT, but did refer to the Legal Costs Trust, the vehicle created by Mr McNamara. It also referred to ‘OWAA Avestra Credit Fund’.
[6] R v McNamara & Pitman [2019] SADC 128 at [9].
[7] R v McNamara & Pitman [2019] SADC 128 at [12].
Returning to the evidence adduced by the prosecution, in addition to the evidence of the transactions themselves and the evidence of Ms Roach’s failure to authorise the purported investments, or even know of them, the prosecution relied on ‘E-Crime’ evidence. This took the form of system data and metadata on Mr McNamara’s computer, relating to the documents that Mr McNamara had relied on in his affidavit of 23 January 2015 (the fourth affidavit) in support of his application for an injunction.
The trial judge approached this evidence by particular reference to dealings between 21 June 2012 and 4 July 2012 in the amount of $35,000, the subject of Count 11 on the information, and the corresponding count of using fabricated evidence, being Count 29. Count 29 was particularised as follows:
Stephen Patrick McNamara on the 23^rd day of January 2015 at Adelaide, used evidence or a thing, namely a purported Certificate of Investment dated the 22^nd day of June 2012, knowing it to have been fabricated, with the intention of influencing the outcome of judicial proceedings.
The actus reus of this offence was the use of a fabricated certificate in the affidavit. That is to say, it was a necessary element of the offence that the certificate was not genuine. However, neither the circumstances nor the timing of the fabrication of the certificate formed an element of the offence. The trial judge then explained the relevance of the E-Crime evidence by reference first to the tracing evidence of Ms Panagis, and then the relevant portion of Mr McNamara’s affidavit:[8]
When examining his accounts, Ms Panagis saw that, on 22 June 2012, Mr McNamara transferred $35,000 from the statutory trust account to the Legal Costs Trust. That was money belonging to the Heanes estate. From the Legal Costs Trusts account, the money was then moved into various other accounts from which it was subsequently withdrawn and used for Mr McNamara’s benefit. I shall not set out each of those subsequent withdrawals but mention only a few of them. Some $8,000 was used to pay Mr McNamara’s personal credit cards; some $6,500 was used to pay staff wages; and $16,500 was used to pay Mr McNamara’s home mortgage.
I now go to the affidavit. In paragraphs 62 to 65, Mr McNamara described his receipt and use of that $35,000.
62.On 20 June 2012, I caused letter to be sent to AOSUT on behalf of LCT referring to a further investment to be made by LCT in regard of the estate of Heanes. In the letter I sought permission to disburse the funds on behalf of AOSUT. A copy of the letter from LCT to AOSUT dated 20 June 2012 is now produced to me marked SPM45 and exhibited hereto.
63.On 21 June 2012, I received a letter from AOSUT referring to SPM45 accepting the investment in regard of the Estate of Heanes and authorising disbursement of funds from LCT. A copy of the letter from Ms Tomazou dated 21 June 2012 is now produced to me marked SPM46 and exhibited thereto.
64.On 22 June 2012 I caused the sum of $35,000.00 to be transferred from the Trust Account of the plaintiff to LCT. A receipt for this sum was issued by LCT setting out the basis for the investment. A copy of the receipt issued by LCT dated 22 June 2012 is now produced to me marked SPM47 and exhibited hereto.
65.Between 22 June 2012 and 24 June 2012 LCT disbursed funds on behalf of AOSUT pursuant to the authority set out in SPM46.
(Footnote omitted)
[8] R v McNamara & Pitman [2019] SADC 128 at [66]-67].
The E-Crime evidence was adduced primarily in pursuit of the prosecution case that the certificates were fabricated, and thus in further support of its case that the ‘investments’ were not genuine, because of what that evidence disclosed about the date of creation of the documents. Specifically, the prosecution case was that the certificates were created in 2015, well after the event, and that this was demonstrative of the sham.
However, it was not necessary for the prosecution to prove that the certificates had been created after the event in order to prove the charges of fabrication or dishonest dealing; the timing of their creation was not an indispensable intermediate step in reasoning to guilt.[9] The two sets of charges were intertwined, in the sense that the genuineness of the ‘investments’ stood or fell with the genuineness of the certificates. If the investments were not real, then neither were the certificates, regardless of when they had been created. Evidence that spoke primarily to the genuineness of the investments (in particular, the evidence of Ms Panagis and the evidence of Ms Roach) was, together with the balance of the evidence, capable of contributing to a conclusion beyond reasonable doubt that the investments were a sham and that the certificates were fabricated, whether or not the timing of the creation of the certificates was established beyond reasonable doubt.
[9] Shepherd v The Queen (1990) 170 CLR 573 at 576 (Mason CJ); 579, 583 (Dawson J, Toohey and Gaudron JJ agreeing); Cf. Chamberlain v The Queen [No.2] (1984) 153 CLR 521.
Nevertheless, the E-Crime evidence was relevant to both classes of charge. Staying with the documents the subject of the above paragraphs of Mr McNamara’s affidavit, the trial judge held as follows:[10]
As I mentioned, Dr Lin examined Mr McNamara’s computer. In it he found four files containing near identical letters purportedly from Dorothea Tomazos to Mr McNamara. The file containing each letter was entitled “Letter from Dorothea”. I say “near” identical because three of the letters bear the date 21 June 2012 while one of them bears the date 1 March 2012. They all refer to the sum of $35,000…
[10] R v McNamara & Pitman [2019] SADC 128 at [68].
The judge then set out the full text of one of the letters, which contained the electronic signature of Dorothea Tomazou as secretary for the AOSUT. The relevant text of the letter was as follows:
Dear Steve
Legal Costs Trust – Investment with Andamooka Opal Stone Unit Trust (“the Trust”)
The Trust accepts the further investment of $35,000 relating to the Heanes Estate.
The Trust authorises the following payments for and on its behalf from the monies received into the LCT:
1. Payment of legal fees for Sotiri Portellos.
We look forward to the investment statement after 30 June 2012.
Regards
The judge then continued:[11]
Dr Lin examined the files containing those four letters and files containing other letters exhibited to Mr McNamara’s fourth affidavit. Before stating his conclusions, Dr Lin explained a number of features of the operation of the computer. In particular, he explained the difference between metadata and system data. The metadata stored in a computer file does not change when the document is transferred from one computer to another. The system data may well change. Having examined the metadata and the system data of the four letters to which I have referred above, Dr Lin concluded that all four of them had first been created on Mr McNamara’s computer on 4 and 5 January 2015. On the basis of Dr Lin’s evidence, the Crown submits that the letter dated 21 June 2012 exhibited to Mr McNamara’s fourth affidavit was in fact first created in January 2015 shortly before the affidavit was filed. It is the prosecution case that Mr McNamara created those four versions of that letter early in 2015 in the course of creating a set of false records which he then exhibited to the affidavit filed on 23 January 2015.
Mr McNamara explained the apparent inconsistency in dates by his use of the “save as” function on the computer. I shall return to that evidence. I do not accept it. I accept Dr Lin’s evidence and I find that the letter dated 21 June 2012 attached to Mr McNamara’s fourth affidavit was first created shortly before the affidavit was filed.
(Footnote omitted)
[11] R v McNamara & Pitman [2019] SADC 128 at [69]-[70].
The fourth category of evidence, which also fell generally within the descriptor of ‘E-Crime’ evidence, comprised a series of Skype messages, mainly between Mr McNamara on the one hand, and Mr Portellos and Ms Tomazos on the other. These conversations occurred between late 2014 and early 2015. Dr Lin could not be certain that the extractions contained all of the conversations. The following passages of the trial judge’s Reasons for Verdict set out some of the conversations that were extracted by Dr Lin:[12]
[12] R v McNamara & Pitman [2019] SADC 128 at [74]-[79].
On 22 December 2014, the accused McNamara sent to Ms Tomazos a message which included the following:[13]
[13] Exhibit P2, 359.
…Anyway what will stop all of this is money coming from the Andamooka Opal Stone Unit Trust. In the first instance the $460K is needed. If the trust can arrange this in any way it would certainly diffuse the pressure. It will avoid the need for the Trust having to disclose any of its business. It will be interesting for the Andamooka Opal Stone Unit Trust to try to send some money to the LCT account to see if the funds are rejected. I believe this may occur because the Law Society has blocked the account so it would mean the Andamooka Trust could say it attempted to pay funds but they bounced. Anyway the solution is money. In the scheme of things it is not a large amount. It just has to be raised.
On 22 December 2014, McNamara sent this message:[14]
[14] Exhibit P2, 360.
Dorothea are we able to come up with some money…as stated in the scheme of things not much is required.
On 24 December 2014, McNamara sent this message to Mr Portellos:[15]
[15] Exhibit P2, 361.
The matter apparently has been reported to major Fraud squad as they have no doubt seen the Portellos web site and are saying it’s a Ponzi Scheme and has no backing. If money does not materialise I will probably end up in gaol and it will not stop there. As I said the situation is starting to get very serious and Flick needs to know that his delay is getting the authorities very excited. They have an army of people (wo)rking in this.
On 1 January 2015, Mr McNamara sent this message to Ms Tomazos:[16]
[16] Exhibit P2, 364.
The Biggy however is that there is no evidence that the money is any bank account. They are making a lot of noise, and you can see that they are angling at saying thiss [sic] was all a big sham. Sotiri was bank rupt [sic] the Trustee controls the opals therefore there was never any prospect of any money. Ergo, money will solve this. We can then supply the documentation required to support what happened and we will be on the front foot to nail all of these people.
On 13 January 2015 Ms Tomazos wrote to Mr McNamara:[17]
I’ll need tomorrow to sort out the time lines, eg. SP resigned as trustee on 21 Dec 2011 – how does that impact on the info contained in the Matthews email files scan?
On 18 January 2015, Ms Tomazos wrote to Mr McNamara:[18]
Steve, in the communications re your stuff I’m not comfortable with the references to the Avestra Credit Fund because we knew that the application didn’t go anywhere. This should be more general.
[17] Exhibit P2, 366.
[18] Exhibit P2, 368.
The defence case
The trial judge then addressed the evidence of Mr McNamara, reminding himself that Mr McNamara did not have to prove anything. Without setting out verbatim his Honour’s entire summary of Mr McNamara’s evidence, the following aspects of that summary are particularly pertinent:[19]
[19] R v McNamara & Pitman [2019] SADC 128 at [81]-[100].
•Mr McNamara had previously acted for Mr Portellos and Ms Tomazos in their dealings with the Australian Taxation Office. He was aware that AOSUT owned a large quantity of Australian opal, worth more than $200,000,000, which was kept in a storage facility at Cavan. He understood this opal to be the ‘asset backing’ of the Trust;
•in October 2011, AOSUT, by an unsigned letter purportedly under the hand of Ms Tomazos, offered the LCT the opportunity to invest with it on terms and conditions offered by the Avestra Credit Fund. (We interpolate here that both the independent evidence and the records of the Skype conversations provide a sound basis for concluding that investment on the terms of the ‘Avestra Credit Fund’ was never available to AOSUT, and that Mr McNamara knew this, certainly by January 2015);
•once the likely delay in distribution of the Heanes estate on account of the beneficiaries’ dispute became apparent, he accepted the offer and invested the Heanes estate funds with AOSUT, through the LCT. It is useful to set out here Mr McNamara’s evidence in chief of his belief:[20]
[20] T 526.33-527.5.
A.    That the money would be invested by the Legal Costs Trust, with the Andamooka Opal Stone Unit Trust, so that interest would be earnt while there was a dispute going on between the beneficiaries and potential beneficiaries, with the – the idea was to try and cover the cost of the estate, by earning interest.
Q.    And what was your belief as to the amount of interest that the estate would earn.
A.    The interest that was it was going to earn was pursuant to the Avestra Credit Fund document which was, I think, 3% over the Reserve Bank of Australia rate, cash rate.
•Mr McNamara then recorded the various investment transfers, in order to create an audit trail. He documented the transfer from the statutory trust account to the LCT by way of a ledger entry in each case. When the money was invested, a Certificate of Investment was generated. His evidence was that it was he who had created the information contained in the certificates. Indeed, he created the certificates;[21]
•Mr McNamara had informed Ms Roach of the investment of the Heanes estate funds. Specifically, his evidence was that he believed that Ms Grieger was sending copies of the investment documents to Ms Roach by email;[22]
•copies of the Certificates of Investment were provided to the solicitors for the beneficiaries of the Heanes estate;
•with respect to the Matthews estate, Mr McNamara attached copies of an investment statement update in a letter to Ms Roach of 31 January 2014;
•Mr McNamara did not create the letters to Ms Tomazos shortly before filing his affidavit. He incorporated the letter dated 21 June 2012 from Ms Tomazos into the records he was compiling for use in his affidavit by using the ‘save as’ function on his computer, which explains the later creation dates. These letters were created from an original letter dated 21 June 2012. The trial judge noted that this did not explain, and that Mr McNamara was unable to explain, why one of the four letters was dated 1 March 2012;[23]
•the Skype messages represent efforts he made to force AOSUT to repay the invested moneys. His language, ‘are we able to come up with the money’ was simply colloquial. His statement that he might end up in gaol was an attempt to get ‘them’ to realise how serious the situation was. He was corresponding on a number of occasions with Mr Portellos, even though Mr Portellos was no longer a trustee, as Mr Portellos was acting on behalf of Ms Tomazos. He had sent his affidavit to Ms Tomazos for her checking to ensure that the facts included were correct. He wanted to make sure that they agreed with what he was saying. He would not necessarily have accepted what they came back with; rather, he wanted to know if they agreed with what he was putting to the Court.
[21] T 528.15.
[22] T 532.10.
[23] R v McNamara & Pitman [2019] SADC 128 at [96].
The trial judge rejected Mr McNamara’s explanations as implausible. He considered that the Skype conversations were not conversations that a solicitor acting for the executor of a deceased estate would have with the representative of an investment entity from which he was trying to cover legitimately invested moneys.[24] He concluded that the Skype correspondence supported the Crown case that Mr McNamara, Mr Portellos and Ms Tomazos were engaged in creating a false set of documents to deceive the Law Society and the Supreme Court.[25]
[24] R v McNamara & Pitman [2019] SADC 128 at [100].
[25] R v McNamara & Pitman [2019] SADC 128 at [101].
The trial judge regarded one anomaly in Mr McNamara’s explanation as particularly significant. He explained his rejection of Mr McNamara’s explanation for the size and number of transfers made:[26]
As I have mentioned, transfers of money out of the two estates were made in varying amounts on separate occasions. Mr McNamara was cross-examined about his reasons for not investing estate funds in a lump sum, or in lump sums. His evidence was that, with respect to the early transfers, his firm could only make electronic transfers of sums up to $15,000 on any one day. When asked why he did not make transfers of $15,000 on consecutive days he said:[27]
Probably because I was busy at the time. I don’t know.
He went on to say that his firm was able to get the electronic limit changed. But that does not explain the numbers and amounts of the various transfers. For example, on 25 January 2012, there was a transfer of $50,000. There must, therefore, have been an increase in the daily transfer limit by that date. But, on the same day, there was a transfer of $10,000. And, on 6 February 2012 and 2 March 2012, there were separate transfers of $20,000 and $10,000 respectively. When asked about those transfers, made after any purported limit had been increased, Mr McNamara explained that he was instructed by AOSUT to make the transfers in those amounts.[28]
I do not accept Mr McNamara’s explanations. As I have just mentioned, the transfers of smaller sums after he had been permitted [sic] transfer of $50,000 does not sit with his explanation. Nor do I accept the explanation that he was receiving instructions from AOSUT. After all, as he agreed in evidence, it was his decision how and when to invest the money.
[26] R v McNamara & Pitman [2019] SADC 128 at [103]-[104].
[27] T 641.
[28] T 643.
This explanation was directly contrary to the evidence that the transfers were used to meet various of Mr McNamara’s own expenses. The trial judge further remarked on Mr McNamara’s admission that he had transferred $170,000 from the Matthews estate to the LCT on 22 January 2013 without obtaining instructions from Ms Roach. Mr McNamara gave evidence that he had tried to get instructions, that he had not been able to contact her, and that he believed that he had ‘standing instructions’ from Ms Roach. The trial judge rejected this explanation, finding that a solicitor acting professionally in the normal course of his practice would not so act, and that in any event, based on other evidence, Mr McNamara had never had any difficulty in contacting Ms Roach.[29]
[29] R v McNamara & Pitman [2019] SADC 128 at [105]-[106].

The trial judge concluded, on the basis of all of the evidence, that Mr McNamara was not an honest witness.
The conclusions on the charges
The trial judge concluded that no funds were ever invested with the AOSUT:[30]
Because the 17 charged transfers occurred on separate occasions and in differing amounts always at times when no other funds were available to Mr McNamara in his accounts; because no funds were paid by the Legal Costs Trust to Andamooka Opal Stone Unit Trust; because the purported interest payments came not from AOSUT but from Mr McNamara’s own accounts; and because the letter marked SPM46 annexed to Mr McNamara’s fourth affidavit was first created shortly before the affidavit was filed, I am satisfied beyond reasonable doubt that no funds from either of the deceased estates were ever invested with the AOSUT.
He then turned to the elements that comprised each of the first 17 counts, being the offences of theft and aggravated theft.
[30] R v McNamara & Pitman [2019] SADC 128 at [110].
As to the element that Mr McNamara had dealt with the money in the estates, as particularised, he concluded that there was no doubt about that, Mr McNamara having effected each of the 17 transfers.[31] As observed above, these were the transfers to the LCT.
[31] R v McNamara & Pitman [2019] SADC 128 at [112].
Next, he accepted that Mr McNamara had transferred the sums the subject of each count without Ms Roach’s consent. He confirmed his acceptance of Ms Roach’s evidence that she did not consent to any of the transfers.[32]
[32] R v McNamara & Pitman [2019] SADC 128 at [113].
Thirdly, he addressed the element that, at the time he effected the transfers, Mr McNamara was acting dishonestly according to the standards of ordinary people and that he knew at the time, on each occasion, that he was acting dishonestly. He found that it was ‘plain from the almost immediate use of estate moneys for his own purposes that Mr McNamara was acting dishonestly’.[33]
[33] R v McNamara & Pitman [2019] SADC 128 at [114].
Finally, he addressed the element that at the time of each transfer, Mr McNamara intended to deprive the relevant estate permanently of the money or intended to make a serious encroachment on the owner’s rights. He held:[34]
I note here that the owner, for the purposes of this case, was Ms Roach. He would have intended to have made a serious encroachment on the rights of the owner if he intended to treat the property as his own regardless of the owner’s rights; or he intended to deal with the money in a way that created substantial risk – a risk of which he was aware - that the owner of the money would not get it back. I am satisfied that, at the time of each of the 17 transfers, Mr McNamara intended to make a serious encroachment upon the rights of the executor: he intended to use the money to benefit himself. In making that finding, I have not overlooked the fact that Mr McNamara may have intended, at some time in the future, to repay the transferred moneys. It seems to me clear, from the Skype messages, that Mr McNamara had some expectation that AOSUT would send him money to satisfy the Law Society’s queries. I do not know the basis of those expectations.
[34] R v McNamara & Pitman [2019] SADC 128 at [115].
The trial judge also concluded that the circumstance of aggravation alleged in each of Counts 11 to 17 (the aggravated offence having been enacted only after the offending alleged in Count 10 had occurred) was established, Mr McNamara having been in a position of trust when he committed the thefts.[35]
[35] R v McNamara & Pitman [2019] SADC 128 at [116].
On the counts of fabricating evidence, he concluded that the first element was satisfied in each case, namely, that Mr McNamara used the document the subject of the charge by filing it in the Supreme Court attached to the relevant affidavit.
Secondly, the trial judge addressed the element that at the time of using the document in that way, he knew that it was fabricated. Critically, he held:[36]
I am satisfied of that element beyond reasonable doubt with respect to each of the charges because no investments were ever made.
[36] R v McNamara & Pitman [2019] SADC 128 at [120].
Finally, he concluded that he was satisfied beyond reasonable doubt that Mr McNamara had intended to influence the outcome of the Supreme Court proceedings by persuading the presiding judicial officer that he had, in fact, invested the estate funds with the AOSUT. In consequence, he was satisfied beyond reasonable doubt that Mr McNamara was guilty of the 16 counts of using fabricated evidence.
The appeal
The Amended Grounds of Appeal against Conviction and Sentence, filed on 8 April 2020, are lengthy. They descend, to an unnecessary extent, to a level of detail more appropriately associated with submissions. This is particularly so with respect to those grounds that complain of an inadequacy of reasons on the part of the trial judge. The appellant’s submissions took a more thematic approach, grouping certain of these extensive grounds and sub-grounds.
The submissions of the prosecution on the appeal were even more thematic. While the prosecution addressed, in writing, each ground, and supplemented those written submissions orally, its response to each ground was overlaid by a more fundamental submission which, it argued, placed the appellant’s complaints into their necessary context. It is helpful to explain that fundamental submission first, before addressing the grounds of appeal.
The prosecution submitted that the question of the appellant’s guilt on all of the charges hinged on a ‘key issue’. This was whether the purported investments were legitimate. It was not in question that the funds were transferred to the LCT. If there was no on-investment with AOSUT, then on no view could the transfers to LCT have constituted a legitimate investment at all, as opposed to a dishonest dealing with those funds. The prosecution based its identification of that key issue on a number of propositions:
•many of the factual issues were not in dispute. It was not contentious that Mr McNamara had ‘dealt’ with the estate funds by transferring them on each occasion to the LCT account, which was a vehicle that could be used to on‑invest. It was not in dispute that none of the money was then forwarded to AOSUT, but that it was, on each occasion, immediately transferred to various business and personal accounts of the appellant for his own use;
•the prosecution had not contended that acceptance of Mr McNamara’s evidence would lead to anything other than an acquittal. Thus, for example, there was no secondary case that had genuine investments been made, albeit without the consent of Ms Roach, the theft charges could still be sustained;
•it was common ground that the trial turned on the question of whether the purported investments were legitimate;
•to this end, the prosecution opened on the basis that if the money had never been invested in each case (that is, legitimately invested, as opposed to transferred to LCT for some other purpose), then it would follow that the appellant was guilty of each offence of theft and of fabricating;
•thus in closing, the prosecution submitted that the case turned on this factual question, and that if the trier of fact could not exclude, as a reasonable possibility, that the money was legitimately invested, it would necessarily acquit;[37]
•similarly, in closing, Mr McNamara’s counsel told the jury, ‘This case really is about whether or not there was any investment at all’,[38] and later submitted, ‘It all stems back to what was his intention at the relevant time? Was it his intention to steal the money, at the time the money was moved, or was it to get a good return on investment…’.[39]
[37] T 853.22-29.
[38] T 985.33.
[39] T 1001.23.
Against that framing of what was actually in issue at trial, the prosecution on appeal then made the overarching submission that this too was the focus of the trial judge in his Reasons for Verdict, that is, did Mr McNamara ever invest funds with the AOSUT? Thus, his Honour set out his understanding of the ‘main basis’ of the prosecution case as follows:[40]
In support of its case that no investments of any estate funds were ever made with the AOSUT, the prosecution relies mainly upon the following:
·the evidence of an accountant who examined Mr McNamara’s accounts and concluded, first, that there were no records of any money ever having been paid to the AOSUT; and, secondly, that the funds transferred from the two deceased estates out of the statutory trust account were all traceable to accounts from which they had subsequently been withdrawn and used for Mr McNamara’s own purposes.
·the evidence of Ms Roach that she was never told of any investments of Heanes estate funds and that she gave no permission for the investment of funds of either estate.
·evidence of a computer expert that letters purportedly sent to Mr McNamara by AOSUT and exhibited to his fourth affidavit had been backdated; that is, that they were first created some time after the dates appearing on each of them and shortly before the affidavit was filed.
·a series of Skype messages, text messages, emails and letters found on Mr McNamara’s phone and computer and on Mr Pitman’s computer which show that McNamara and Mr Pitman, together with others associated with the AOSUT, were engaged in creating a false set of records to hide Mr McNamara’s thefts.
[40] R v McNamara & Pitman [2019] SADC 128 at [40].
Then, as already observed, immediately before expressing his conclusions on each element of the offences, he reached the conclusion that he was ‘satisfied beyond reasonable doubt that no funds from either of the deceased estates were ever invested with the AOSUT’.[41] The prosecution submitted that this expressed focus on AOSUT was appropriate in the formulation of the ‘key issue’, for while the transfers themselves were to the LCT, the only purported actual investment was the on-investment with AOSUT. Without that investment, the putative ‘investment’ with LCT would be ‘entirely pointless’.
[41] R v McNamara & Pitman [2019] SADC 128 at [110].
It was in this sense that the case was said to turn on a single issue. If the presentation of the existence of on-investments in AOSUT was a sham, then the transfers to LCT were necessarily dishonest, as the funds were immediately deployed to Mr McNamara’s own use.
The prosecution then deployed this overarching response to the grounds of appeal, in context. We turn to those grounds and the prosecution’s responses as informed by its articulation of this ‘key issue’.
Ground 1
Ground 1 reads as follows:
1.The applicant’s trial miscarried as a result of the late change in the formulation of the prosecution case against the applicant (see mistrial application: T969ff), in particular:
1.1    The prosecution opened its case on the basis that the applicant had committed the offences of theft the subject of counts 1-17 by dealing with the Estate property by transferring funds from the statutory trust account operated by Commercial and General Law to an account operated by LMCS Pty Ltd as trustee for the Legal Costs Trust (T22-23, 33-34). The prosecution case was that the applicant did not invest any of the money the subject of the impugned transactions on behalf of the Estates (see eg T15, 18, 21, 23-24, 31-32, 33, 44).
1.2    In closing its case, the prosecution submitted that the applicant could be found guilty of the theft charges on the basis that there was no “legitimate” investment of the Estate funds in the Andamooka Opal Stone Unit Trust (AOSUT) (see eg T871, 873, 878, 879, 880, 936-937).
1.3    The learned trial judge directed himself that the issue to be determined was whether funds were invested with AOSUT (R[111]) and in circumstances where the applicant had an explanation that AOSUT would send money for him to repay the Estates (R[116]).[42]
1.4    This change in the prosecution case gave rise to a miscarriage of justice.
[42] These paragraph numbers should be [110] and [115], respectively.
This ground, unnecessarily discursively expressed, is a complaint that the prosecution unfairly changed its case between opening and address. The appellant’s submissions in support of this ground, both written and oral, tended to slide into complaints about the trial judge’s reasons, in illustration of the unfairness said to have arisen.[43]
[43] See, e.g., Applicant’s Written Submissions at [33]. The written submissions relied upon had been prepared for the applicant for permission to appeal, hence the use of the term ‘Applicant’ in those submissions.
The prosecution opening was to a jury. It contained some explanations that might not have been required in their entirety on a trial by judge alone. Relevantly, in the course of that opening, the prosecutor said:[44]
So the deceased estate funds of the Heanes estate were transferred from Mr McNamara’s law firm trust account to be invested with this Legal Costs Trust. So it went from the bank account held in the trust account of the law firm Commercial & General to the bank account in the name of LMCS SA Pty Ltd as trustee for the Legal Costs Trust.
What that Legal Costs Trust was purportedly doing was reinvesting the money received from the deceased estates into another trust called the Andamooka Opal Stone Unit Trust. That trust had a number of trustees which included a company called Opal World Andamooka Australia Pty Ltd, and also a trustee was the accused Mr Philip Pitman…
So, in short, what Mr McNamara was doing was employing a system designed to give the impression the deceased estate funds were being invested from his law firm trust account into the Legal Costs Trust, through this trustee company LMCS SA Pty Ltd which was in turn purportedly investing with the Andamooka Stone Unit Trust through the trustee company Opal World Andamooka Australia Pty Ltd and the accused Mr Pitman.
[44] T 23.2-28.
The appellant’s complaint on this ground is that in opening, the prosecution case was expressed ‘in intractable terms: there had been no investment of the Estate money in LCT with the permission of the Executor’.[45] It is certainly the case that the prosecution alleged that the actus reus was the transfer of the money from the statutory trust account to the LCT.[46]
[45] Applicant’s Written Submissions at [28].
[46] See, e.g., T33.36-34.4.
The complaint, however, is that by the time of addresses, ‘the prosecution case appeared to slide and extend to no investment or, alternatively, illegitimate investments with AOSUT made in circumstances involving incomplete disclosure to the Executor and / or a conflict of interest on the applicant’s part’.[47] The appellant relies on various statements by the prosecution in address to this end. By way of example, the prosecutor said words that included the following:
•‘these investments were a sham in the first place’;[48]
•in comparing the treatment of the Heanes Estate funds with the Matthews Estate funds, and the existence of an investment register, ‘There is one for the Heanes’ estate but not one for the Matthews’ estate. We also know that the investments are exactly the same in the nature of those investments. To the Legal Costs Trust, off to Andamooka on behalf of the executor of the estate’;[49]
•on the consequence of Ms Roach’s lack of knowledge, ‘you might think that alone is sufficient to satisfy you that the accused was operating a dishonest system. Enough alone to satisfy you that these investments were all a sham’;[50]
• ‘As you know, each of these investments are made with the Avestra Credit Fund. That name on the investment certificate. You have the agreed facts that Avestra knew nothing about any of these people. Never any investment held by Mr McNamara, the Andamooka Opal Stone Unit Trust, anyone. That was all a sham. Mr McNamara’s explanation is ‘we were using the Avestra credit terms’. It’s a matter for you what you make of that. You might think the use of Avestra was simply to pass off like it was held with Avestra’.[51]
[47] Applicant’s Written Submissions at [29].
[48] T 871.21-22.
[49] T 873.2-7.
[50] T 878.28-31.
[51] T 908.10-19.
The appellant described this asserted change in the prosecution case variously as a ‘change’ in case, where the ‘emphasis’ had ‘evolved’ and as a ‘slide’. The difference complained of appears to be between claiming that there had been no investment in the LCT, to there having been an unjustifiable or illegitimate investment with AOSUT.
There are fundamental difficulties with this contention. First, the passages from the prosecution’s opening make it clear that the dishonest dealing being complained of was the payment of the moneys from the statutory trust account to the LCT. The prosecution case was clear from the outset that it was the steps that Mr McNamara took to give the impression that LCT was then on-investing those funds with AOSUT that demonstrated the dishonesty of those dealings. Had the prosecution failed to prove beyond reasonable doubt that the purported on‑investments in AOSUT were a ruse, its case would have failed.
Secondly, the passages in the prosecution address on which the appellant relies are hardly comprehensive. Thus, prior to any of the passages of which the appellant complains, the prosecution made its case perfectly clear:[52]
As I have said a number of times, not a single solitary dollar is used for investing with the Andamooka Opal Stone Unit Trust ever, not a single cent. Every dollar is used for Mr McNamara’s own personal and business expenses. We have all heard the saying ‘Actions speak louder than words’. What do Mr McNamara’s actions show you? No investment, all spent for his own purposes.
… cutting through all of the documents, all the distraction and confusion, you might think distraction and confusion designed to do just that thing to distract and confuse, but cutting through all of that is the clear accounting evidence. Nothing a single solitary occasion, not a single solitary dollar or cent of that money is invested with the Andamooka Opal Stone Unit Trust, full stop, period. But on every single occasion every single cent is used by Mr McNamara for his own personal and business expenses. It is a matter for you, ladies and gentlemen, but you might think that evidence alone – forget all the other evidence in this case – is enough to satisfy you beyond a reasonable doubt that this money was not legitimately invested.
[52] T 869.14-870.7.
It is certainly the case that the prosecutor in address referred to the correspondence with Ms Tomazos and Mr Portellos as being designed ‘to maintain this sham investment scheme’.[53] That does not represent any kind of change in case. The prosecution case was always that the transfers to LCT were dishonestly done and that the purported business of LCT on-investing those funds with AOSUT was a sham in that it did not happen. These two propositions sat together, in that the latter was the premise of the former. Both at the outset and in address, the prosecution pinned its case of the dishonest transfers to LCT on whether the purported on-investments were genuine.[54]
[53] T 900.17-18.
[54] T 853.22-37, 946-947.
Insofar as the appellant then complains, at Ground 1.3, that the trial judge erroneously directed himself at [110] that the issue was whether funds from either of the deceased estates were invested with AOSUT, that complaint must be rejected. This was the ‘key issue’ on the prosecution case. Relevant to the grounds that then follow, the expression at [110], ‘I am satisfied beyond reasonable doubt that no funds from either of the deceased estates were ever invested with the AOSUT’, was a comprehensive finding that in each case, the purported on‑investment in AOSUT was a sham and that, consequently, each transfer to the LCT was dishonestly done.

This was how the issue was framed at trial. Both the prosecution and the defence addressed in terms of the entire scheme, albeit by reference to certain of the individual transactions. Thus, for example, in respect of the transfers of money from the Heanes estate, counsel for Mr McNamara said:[55]
What we have is someone who’s invested the moneys on the basis he believed he could invest the money because he had the authority from Ms Roach. He put the moneys into an investment vehicle, Legal Costs Trust, which enabled him to get a good return on his investment and interest for the beneficiaries of the estate. He believed that he was going to get a good rate of interest, bearing in mind that it was, I think in one of the documents, 7‑and-a-half per cent.
[55] T 999.22-30.
The prosecution case did not change. Ground 1 fails. The approach by the parties to the issues at trial described above is then relevant to the first group of complaints about the adequacy of the Reasons for Verdict, which the appellant collected from a number of different grounds.
Grounds 2.1, 2.1, 4 and 5 – the judge’s treatment of the elements of the offences
These collected grounds read as follows:
2.The learned trial judge’s reasons for decision are inadequate in that:
2.1 The reasons do not identify or expose the learned trial judge’s consideration and analysis of each of the charged transactions (counts 1-17) or uses of fabricated evidence (counts 18-34) (R[7]-[9], [45], [113]-[122]).
2.2    The reasons do not sufficiently identify the learned trial judge’s process of reasoning and findings with respect to the elements of each individual charge.
4.The learned trial judge erred in law in failing to properly direct himself as to the elements of the offences of using fabricated evidence (counts 18-34) (R[120]-[122]) and the interrelationship between the elements of the offences and the evidence going to each count, in particular:
4.1    The learned trial judge failed to direct himself in relation to each count that it was necessary to identify the date or the occasion on which the document that was the subject of the count was fabricated.
4.2    The learned trial judge erred in failing to direct himself that it was necessary for the prosecution to prove that the applicant intended to influence a judicial proceeding at the time each document the subject of counts 18-34 were fabricated.
4.3 The learned trial judge erred in failing to direct himself adequately or at all as to whether the documents the subject of the charges were in fact “fabricated” within the meaning of s 243(b) of the Criminal Law Consolidation Act 1935 (SA) and, if so, in what respect.
4.4    The learned trial judge failed to adequately identify the defence case in relation to each element and identify on what bases it had been negatived by the prosecution.
5.The learned trial judge erred in failing to adequately direct himself as to the elements of theft (counts 1-17) (R[115]-[116]) and the interrelationship between the elements of the offences and the evidence going to each count, in particular:
5.1 The learned trial judge failed to properly consider the particular transaction that comprised the actus reus of each discrete charge and whether the applicant had been shown to have been acting dishonestly at the time of the relevant transaction, within the meaning of s 131 of the Criminal Law Consolidation Act 1935 (SA).
5.2 The learned trial judge failed to direct himself in accordance with s 131(5) of the Criminal Law Consolidation Act 1935 (SA) and determine whether the prosecution had negatived that the applicant had an honest but mistaken belief in the existence of a legal or equitable right to act as he did.
5.3 The learned trial judge failed to direct himself adequately or at all as to the statutory concept of consent in s 132 of the Criminal Law Consolidation Act 1935 (SA).
5.4    The learned trial judge failed to consider evidence relied upon by the applicant as a source of doubt in relation to dishonesty (including, for example, that D6 demonstrated that all relevant transactions were recorded and otherwise documented; that the Law Society were aware of the Legal Costs Trust; that Mr Rugari had audited the accounts of Commercial and General Law; that information was provided to Carpenter and Co, who were acting for a beneficiary of the Heanes’ Estate, about investment of the funds; that Ms Roach made no complaint about the fact of the investments when she became aware of them).
The appellant articulated three complaints in support of these collected grounds, as follows:
•first, he complained that the reasons do not address sufficiently, or at all, the discrete transactions or documents the subject of each charge. Rather, the reasons took a universal approach premised on the appellant having made ‘no investments’ (which the appellant also complains was unexplained);
•secondly, with respect to the theft offences, the reasons do not address separately the statutory concepts of dishonesty and consent. Specifically, the judge failed to direct himself that the prosecution was required to exclude beyond reasonable doubt that the appellant honestly, but mistakenly, believed that he had a legal right, or consent, to transfer the funds to the LCT;
•thirdly, the judge misdirected or failed to direct himself adequately as to the elements of the fabrication offences. Specifically, the appellant complains:
‒that it was necessary to analyse and make a finding as to the circumstances in which, and when, each document was brought into existence and what it purported to be. A document would not be a fabrication simply because subsequent events made the contents of the document untrue or misleading;
‒that the judge failed to direct himself that the prosecution was required to establish that the appellant knew that the certificates and the Rugari letter were fabricated at the time that they were created. As the appellant expressed it, establishment of the offence required ‘a finding as to what the accused knew about the relevant state of affairs (here, whether the funds had been transferred to LCT as investments) at the time the document was created; and
‒the judge gave little or no attention to the individual acts, and ‘what must have been the co-existent guilty knowledge and intention’.
It is convenient to address these collected grounds under the thematic categories adopted by the appellant. First, however, it is helpful to make some observations on the obligations of a trial judge to give adequate reasons for verdict on a trial by judge alone.
The appellant commenced by invoking the High Court’s statement in Douglass v The Queen,[56] approving of an observation by Doyle CJ of this Court in R v Keyte,[57] that:
in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law.
[56] (2012) 86 ALJR 186; [2012] HCA 34 at [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[57] (2000) 78 SASR 68 at 76.
The various complaints as articulated in the collected grounds, above, are very much directed to this end. Nevertheless, this observation does not explain what is actually required to satisfy this obligation in a given context. In pursuit of that question, the appellant relied heavily on the articulation of principle by Nettle J in his Honour’s dissenting judgment in DL v The Queen:[58]
Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.
(Footnotes omitted)
[58] (2018) 266 CLR 1 at [131].
The appellant relied on this passage as an orthodox statement of principle, being at one with the statements of the plurality, notwithstanding that Nettle J dissented in the result. Thus, in the same case, the plurality observed:[59]
The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision". In the absence of an express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied". One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
(Footnotes omitted)
[59] DL v The Queen (2018) 266 CLR 1 at [32] (Kiefel CJ, Keane and Edelman JJ).
Both passages quoted above emphasise not the minutiae of detail of facts and the application of the law to those facts, but the particular contests between the parties, the factual findings necessary to resolve those contests and the application of the law to those findings. Whether reasons are adequate in any given case is a highly contextual question.
DL concerned a charge of persistent sexual exploitation under the former s 50 of the Criminal Law Consolidation Act 1935 (SA). The complaint of inadequate reasons was to the effect that the trial judge had failed to identify two or more acts of sexual exploitation and the basis on which they were found proved. This argument was premised on the failure of the judge to resolve a number of factual and evidential contests.[60] In holding that the reasons were adequate in the context of the particular contest at trial, the plurality said:[61]
As described above, the reasons of the trial judge, at the outset, correctly set out the issue to be decided beyond reasonable doubt as required by s 50. He recorded that it was necessary, but not sufficient, that before he convicted he should reject the evidence of the appellant beyond reasonable doubt, which he did. He described the evidence of the witnesses and the central submissions of the parties, particularly the appellant's attack on the reliability and credibility of the complainant. He resolved that issue by finding that the complainant was honest and reliable about all of the allegations of sexual abuse.
The ultimate conclusion of the trial judge was that "the [appellant] sexually assaulted [the complainant] on numerous occasions over a period of some years. The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse." The reference to "numerous occasions" was adopted directly from the complainant's evidence that mutual oral sexual intercourse had occurred numerous times. The trial judge did not, and perhaps could not, reach any conclusion about (i) the complainant's age when various types of offending commenced, or (ii) the likely number of occasions of indecent assaults or mutual fellatio before the assaults ended on 28 August 1994. Nevertheless, his conclusion meant that the elements of the s 50 offence had been proved. The "simple and obvious logic" of this conclusion was that over a period of not less than three days, the appellant had committed more than one act of sexual exploitation of the complainant.
(Footnote omitted)
[60] DL v The Queen (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ).
[61] DL v The Queen (2018) 266 CLR 1 at [35]-[36] (Kiefel CJ, Keane and Edelman JJ).
The plurality held that it was not necessary to identify the specific instances in that particular context; the conclusion that the sexual assaults had occurred on ‘numerous occasions’ in the relevant time period was both available and adequate, given what had been placed in contest between the parties. It may not be necessary to resolve every factual contest. It depends on the ‘real issues’:[62]
Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.
(Footnotes omitted)
[62] DL v The Queen (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ).
It is in this context that the prosecution’s articulation, on the appeal, of what had been the ‘key issue’ at trial reveals its significance. Both parties cast the transfers to LCT the subject of the 17 theft offences as repeat instances of a scheme. As defence counsel put it, ‘[t]his case really is about whether or not there was any investment at all’,[63] and ‘[i]t all stems back to what was his intention at the relevant time? Was it his intention to steal the money, at the time the money was moved, or was it to get a good return on investment…’.[64]
[63] T 985.33-34.
[64] T 1001.23-26.
The trial judge resolved that question at paragraph [110], set out above. He did so by specifically referencing that the 17 charged transfers had occurred on separate occasions. He had earlier recounted Ms Panagis’s evidence, following her tracing of all of the moneys, to the effect that ‘all of the transfers of estate moneys the subject of the 17 charges of theft were used for Mr McNamara’s personal or business expenses’.[65] Having reached his conclusion at [110], his conclusion of dishonesty, and the reasons therefore, were made plain at paragraph [114]:
Next, the prosecution must prove that at the time he made each of the transfers, Mr McNamara was acting dishonestly according to the standards of ordinary people and that he knew, when he made each transfer that he was acting dishonestly. It is plain from the almost immediate use of estate moneys for his own purposes that Mr McNamara was acting dishonestly.
[65] R v McNamara & Pitman [2019] SADC 128 at [43].
That conclusion must be read together with paragraph [110], which determined what the prosecution correctly described as the ‘key issue’. Contrary to the effect of the appellant’s submission, this paragraph deployed the language of s 131 of the Criminal Law Consolidation Act 1935 (SA) in its definition of ‘dishonesty’. His finding of a lack of consent on the part of Ms Roach did not require specific invocation of s 132 of that Act.
Further, the judge specifically rejected Mr McNamara’s explanation of his belief that he had ‘standing instructions’ from Ms Roach in respect of the first purported investment of the Matthews estate money.[66] He accepted that Ms Roach knew nothing about any purported investment of the Heanes estate money.[67] He accepted Ms Roach’s evidence that prior to 31 January 2014, Mr McNamara had never sought her instructions about investing any moneys in the Matthews estate and that he had never told her of any purported investment of those funds.[68]
[66] R v McNamara & Pitman [2019] SADC 128 at [89], [105]-[106].
[67] R v McNamara & Pitman [2019] SADC 128 at [53].
[68] R v McNamara & Pitman [2019] SADC 128 at [62].
It was not necessary for the trial judge to go further into questions of implied or constructive consent in circumstances where he had resolved the key issue, beyond reasonable doubt, against Mr McNamara. That disposed of any case that Mr McNamara had the implied consent of Ms Roach to invest the funds in LCT or that he believed more broadly that he had standing instructions to so invest the funds. These could only have been possibilities of consequence if the purported on-investments in AOSUT had been real.
Once those conclusions are understood in the context of the contest that was actually raised between the parties, it is possible to address the complaints of the appellant in the collected grounds presently under consideration.
As to the complaint that the reasons do not address sufficiently, or at all, the discrete transactions or documents the subject of each charge, the contest between the parties did not require this. The judge’s relatively global treatment of all 17 transactions and associated documents engaged with the contest as the parties had framed it. All 17 transactions and the associated documentation necessarily stood or fell together on the parties’ respective cases. The trial judge’s treatment, as an example, of the evidence surrounding the 22 June 2012 transfer and Mr McNamara’s explanation for this transfer provided the necessary analytical detail. Similarly, his conclusion that there had been ‘no investments’ engaged directly with the key issue between the parties. It is hardly for the appellant to complain now that he does not know what that means.
The complaint that the reasons do not address separately the statutory concepts of dishonesty and consent then falls away. This complaint is that the judge failed to direct himself that the prosecution was required to exclude beyond reasonable doubt that the appellant honestly, but mistakenly, believed that he had a legal right, or consent, to transfer the funds to the LCT. Once the key issue was determined, and the judge concluded beyond reasonable doubt that Ms Roach did not consent to the transfers and that Mr McNamara was acting dishonestly on each occasion, no further direction was necessary.
The complaint that the judge misdirected or failed to direct himself adequately as to the elements of the offences of using fabricated documents similarly fails. The conclusion at paragraph [110] necessarily meant that the documents had been fabricated and that Mr McNamara knew that they had been. If there were no investments in AOSUT, on no view could the certificates and the Rugari letter have been anything other than fabricated, and that this was known to Mr McNamara. This necessary conclusion is reflected at paragraph [120] of the trial judge’s reasons.
The trial judge’s reasons dealt sufficiently with the matters in contest between the parties. The complaints of the appellant seem to demand a long-form rote recitation of every factual finding and expressed application of law to each found fact, notwithstanding that the appellant did not frame the contest in that way at trial. This is a demand for length, not clarity. While it will often be the case that multiple theft and related offences will require individual treatment in a trial judge’s reasons, whether that is so will always depend on the framing of the issues at trial. The trial judge here addressed the issues as framed.
Grounds 2.3-2.7 – the respective cases

Grounds 2.3-2.7, which the appellant addressed in writing as a group, complain:
2.The learned trial judge’s reasons for decision are inadequate in that:
…
2.3    The reasons do not adequately expose the learned trial judge’s treatment of:
a)the evidence of the applicant, including those aspects of the applicant’s evidence that were the subject of criticism by the prosecutor by way of his final address, but about which the applicant was not cross-examined;
b)the extent to which he found the evidence of the applicant to “differ” from the evidence of the prosecution witnesses (R[15]), which finding the learned trial judge apparently used as one of the primary bases to reject the evidence of the applicant;
c)how the learned trial judge approached the evidence of the applicant in those instances in which there was no difference or conflict between the applicant’s evidence and the evidence of prosecution witnesses;
d)the defence case generally, including documentary evidence;
e)the arguments advanced on behalf of the applicant by way of final address.
2.4    The reasons do not adequately identify how the trial judge dealt with the evidence of Bella Grieger, Natale Rugari, Anthony Weideman, Michael Hegarty, Phil Roberts, Rosalind Burke, Fiona Panagis and the applicant’s lengthy record of interview.
2.5    The reasons fail to address evidence adduced in the prosecution case and in documentary evidence that was supportive of the defence case or an alternative hypothesis consistent with innocence.
2.6 The reasons do not adequately explain the basis upon which the learned trial judge found, based on the qualified evidence of Dr Lin, that numerous documents not the subject of any charge, were created by the applicant in January 2015 and, further, the relevance of this finding to the learned trial judge’s verdicts in relation to counts 18-34 (R[67]-[70], [94]-[98]).
2.7    The reasons do not adequately expose whether, and if so, how the learned trial judge dealt with aspects of the evidence of Helen Roach that were supportive of or not inconsistent with the applicant’s evidence.
For the most part, these complaints tend to comprise a scattergun attack on failures by the trial judge to mention one or other aspect of the evidence. They do not engage with the task of the judge in giving reasons in the manner already explained.
The question is whether it was necessary to include the matters the subject of these complaints so that the reasons were ‘sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied’.[69]
[69] Douglass v The Queen (2012) 86 ALJR 1086 at [8].
It is well understood that this does not allow the resolution of a trial to be effected by a determination of ‘word against word’.[70] It is certainly the case that the trial judge expressly rejected the evidence of Mr McNamara where it differed from that of the prosecution witnesses.[71] However, that does not mean that the trial judge reduced his consideration to such a contest.
[70] Douglass v The Queen (2012) 86 ALJR 1086 at [12].
[71] R v McNamara & Pitman [2019] SADC 128 at [107].
Thus, for example, the trial judge accepted the evidence of Dr Lin about the creation date of the documents, and found that the letter SPM46 dated 21 June 2012 was created at about the same time as Mr McNamara’s fourth affidavit. One of the key pieces of evidence the judge also relied on was that one of the letters in the same category had a March 2012 date, which was anomalous on any view, and which Mr McNamara could not explain.[72] As we have already observed, the question of precisely when the documents were created was not essential to resolution of the question of whether they were fabrications. That the dates on Mr McNamara’s computer could reasonably possibly have been explained by use of the ‘save as’ function did not prevent the conclusion, based on all of the evidence, including the anomalous March date, that they were fabrications.
[72] R v McNamara & Pitman [2019] SADC 128 at [97]-[98].
Similarly, the judge rejected as ‘implausible’ Mr McNamara’s explanation for sending his draft affidavit to Ms Tomazos and Mr Portello in circumstances where he claimed to be trying to recover legitimately invested moneys from their vehicle.[73] The judge accepted the Skype messages as independent evidence of Mr McNamara, Ms Tomazos and Mr Portello creating a set of false documents to deceive the Law Society and the Supreme Court.[74] Further, he rejected Mr McNamara’s evidence about investment decisions not on the basis of any word against word, but on his independent consideration of the explanations.[75]
[73] R v McNamara & Pitman [2019] SADC 128 at [100].
[74] R v McNamara & Pitman [2019] SADC 128 at [101].
[75] R v McNamara & Pitman [2019] SADC 128 at [102]-[106].
The trial judge made it expressly clear that he was not approaching the case as one of word against word.[76] As to ‘differences’ between Mr McNamara and the prosecution witnesses, other than the question of Ms Roach’s involvement, these were very few. The key issue turned on Mr McNamara’s intention. Where his evidence as to facts aligned with that of a prosecution witness, there was nothing relevant to explain. Neither was it necessary to delve into the evidence of the other witnesses referred to above; they did not contribute to what was actually in contest.
[76] R v McNamara & Pitman [2019] SADC 128 at [15].
As the prosecution observed, Ms Grieger’s evidence that Mr McNamara drew an investment certificate to her attention did not assist, as she was unable to say when this occurred, other than that it was when lawyers for the beneficiaries of the Heanes estate had been asking questions about when distribution would be.[77]
[77] T 122.6-17.
The evidence of Ms Panagis was not controversial, including her evidence that it was an accepted accounting principle that journal entries may offset what is owed by one company to another.[78] The fact that this is an accepted accounting principle was not in dispute, and made no inroads into the prosecution case that the purported investments in AOSUT were a sham and that the certificates purported to represent those investments were fabricated.
[78] T 457.1-6.
The evidence of Mr Rugari, who had audited the statutory trust account (and had been doing so for about 25 years), was inconsequential to the question of dishonest dealings with the funds. As the trial judge explained:[79]
Mr Rugari audited Mr McNamara’s statutory trust account for the year to 30 June 2013 and concluded that all investments of trust moneys had been accounted for in the records in compliance with the statutory requirements. But, because Mr Rugari had audited Mr McNamara’s trust account for so many years and knew how he kept his records, Mr Rugari chose to audit the account on the basis of a very small random sample. He did not conduct a full audit. He saw, and apparently accepted as correct, a schedule of investments in the Heanes estate. While he saw, in a bank statement, a purported investment in the Matthews estate, he did not enquire further into that transaction because, owing to his sampling method, it was not a transaction selected for the purpose of his audit.
[79] R v McNamara & Pitman [2019] SADC 128 at [26].
The evidence of Mr Rugari did not require further attention than was given, in order to address that which was in contest.
With respect to the arguments put by defence counsel in address at trial, the appellant engages in highly detailed criticism of the failure of the trial judge to engage with various matters put. These matters are again raised at the level of the minutiae of evidence, extending so far as to complain that the judge did not deal with Mr McNamara’s ‘favourable demeanour’ when being interviewed and giving evidence.[80] Similarly, for example, the appellant claims that the judge did not address his argument as to the ‘importance’ of the evidence of Mr Wiedeman about the existence of the asset backing of AOSUT.[81] As the prosecution pointed out, the fact that an asset backing to the AOSUT did in fact exist was not in contention.
[80] Applicant’s Written Submissions at [69(l)]; T 1000.13-24.
[81] Applicant’s Written Submissions at [69(n)].
We do not set out every complaint about the Reasons for Verdict here. Those complaints extend to the smallest of detail, well beyond what was required for the judge to discharge his obligation to give adequate reasons. The litany of complaints is, however, directed to an overarching conclusion that the trial judge’s reasons do not contain sufficient explanations to ‘neutralise the inference that the judge rejected the appellant’s evidence out of a preference for the prosecution witnesses’.[82] For the reasons that we have already given, that complaint fails.
[82] Applicant’s Written Submissions at [74].
Ground 6 – burden and standard of proof
Ground 6 complains:
6.The learned trial judge erred in the application of the burden and standard of proof when determining the issues on the basis of choosing between acceptance of the evidence of specific witnesses, in particular Ms Roach (R[53], [62]), Ms Panagis (R[45]) and Dr Lin (R[70]) on the one hand and the evidence of the applicant on the other (R[15]) where:
6.1    There was, in many respects, no conflict between the witnesses;
6.2    The evidence of the prosecution witnesses was qualified or limited (because, for example, in the case of Dr Lin and Ms Panagis, the incomplete nature of forensic inquiries conducted or material available to them);
6.3    There was other evidence in the case which supported the evidence of the applicant.
The appellant in submissions acknowledged that Ground 6 largely overlaps with grounds 2.3, 2.5, 2.6 and 2.7. We have addressed much of the focus of this ground, above. For the reasons we have already given, the trial judge did not resolve the case on the basis of word against word.
This ground also takes issue with the trial judge’s statements to the effect that he ‘preferred’ and accepted the evidence of the prosecution witnesses where it differed from the evidence of Mr McNamara.[83] That there was in large part no conflict between witnesses does not undermine that statement. This is especially in circumstances where the judge also found that Mr McNamara was not an honest witness,[84] found his explanations ‘implausible’[85] and did not accept those explanations.[86] The language of the trial judge does not indicate that the trial judge merely embarked on an assessment of which witnesses he preferred. The judge addressed the limitations on the evidence of Ms Panagis[87] and Dr Lin.[88]
[83] R v McNamara & Pitman [2019] SADC 128 at [15].
[84] R v McNamara & Pitman [2019] SADC 128 at [107].
[85] R v McNamara & Pitman [2019] SADC 128 at [100]; [102].
[86] R v McNamara & Pitman [2019] SADC 128 at [104].
[87] R v McNamara & Pitman [2016] SADC 128 at [42].
[88] R v McNamara & Pitman [2016] SADC 128 at [96]-[98].
For these reasons, and the reasons given above in respect of Grounds 2.3-2.7, this ground fails.
Ground 7 – verdicts unreasonable
Ground 7 complains:
7.The verdicts are unreasonable and cannot be supported having regard to the evidence.
7.1    The evidence was incapable of excluding as a reasonable possibility that at the time the applicant made the transfers the subject of counts 1-17, he did not act dishonestly or intend to make a serious encroachment on the proprietary rights of the owner of the money.
7.2    The evidence of Ms Panagis accepted the legitimacy of “journal entry” accounting, such that the absence of any physical transfers of money from any account under the control of the applicant to an account operated by AOSUT did not exclude as a reasonable possibility that estate funds had been invested.
7.3. In relation to counts 1-17, the evidence was incapable of excluding as a reasonable possibility that the applicant had consent, within the meaning of s 132 of the Criminal Law Consolidation Act 1935 (SA) to deal with the property the subject of the charges.
7.4.   In relation to counts 18 and 20-34, there remained an ineradicable doubt that the certificates of investment were not fabricated and, further or in the alternative, that at the time the documents were created, the applicant did not have an intention to use the documents to influence the outcome of judicial proceedings.
This ground received little separate attention from the appellant. His only written submissions on this ground were as follows:[89]
The appellant relies on the matters canvassed in relation to grounds 2, 4 and 5 as illustrating the primary thrust of his complaint.[90] Essentially, the appellant contends that if his construction of the issues concerning the elements of both tranches of offences is correct, there had to be an ineradicable doubt as to the appellant’s guilt.
[89] Applicant’s Written Submissions at [11].
[90] For recent statements of principle in respect of this ground see Pell v The Queen [2020] HCA 12; Coughlan v The Queen [2020] HCA 15, [50]-[57].
We have not accepted the appellant’s ‘construction of the issues concerning the elements of both tranches of offences’. The matters raised under the heading of this ground reflect aspects of the appellant’s case in defence. However, it was open to the trial judge to find each of the four challenged conclusions proved beyond reasonable doubt. This ground fails.
Ground 3 – direction in accordance with s 34R of the Evidence Act 1929 (SA)
Ground 3 complains:
3.The learned trial judge erred in law in failing to adequately direct himself in accordance with s 34R of the Evidence Act 1929 (SA) in that he:
3.1 Failed to sufficiently identify evidence that had the character of discreditable conduct evidence;
3.2 Failed to adequately direct himself as to the permissible and impermissible use of such evidence (R[18], [110]-[111]).
The appellant abandoned Ground 3.1 in his written submissions.
The focus of Ground 3.2 was documents that were not the subject of any charge. These were the documents exhibited to the appellant’s fourth affidavit and found to have been created in early 2015, not being the Certificates of Investment and Rugari letter the subject of the charges.[91]
[91] R v McNamara & Pitman [2019] SADC 128 at [67]-[70].
The appellant submits that the prosecution case that these letters had been created at or around the time of the proceedings, for the purpose of influencing their outcome, was tantamount to an allegation that the appellant was complicit in further uncharged breaches of s 243(b) of the Criminal Law Consolidation Act, requiring directions under s 34R of the Evidence Act.
The trial judge found that these documents were fabricated.[92] He then said the following in respect of this evidence:[93]
Before turning to specific findings, I explain my use of uncharged acts.
On the Crown case, a number of documents exhibited to Mr McNamara’s fourth affidavit are false. I refer particularly to the letters purportedly from Ms Tomazos to Mr McNamara. Those various documents are not the subject of any charges. While my ultimate findings are, of course, that those documents are false, I have only used the documents to which I have referred in these reasons, being the documents examined by Dr Lin, in coming to my ultimate findings. I have used those documents examined by Dr Lin in determining whether or not, at the time Mr McNamara filed those documents they had been recently created. I have not used the documents, or indeed any documents before me, as evidence of propensity.
[92] R v McNamara & Pitman [2019] SADC 128 at [98].
[93] R v McNamara & Pitman [2019] SADC 128 at [108]-[109].
The appellant complains that this direction is unclear. Having found that the documents were fabricated, the judge needed to identify how that finding was relevant to proof of the charged acts. The appellant complained that, having eschewed any ‘propensity’ purpose, the use to which it was put was not at all clear, and therefore the reader could not be assured that the trial judge had not used it for the reasoning prohibited by s 34P.
The prosecution on appeal accepted that the wording of the trial judge’s treatment of this evidence was ‘somewhat clumsy’ and that, if read literally, it suggested that the permissible use was limited to whether those letters had been recently created. However, the prosecution pointed to exchanges in transcript where it was agreed – and accepted by the trial judge – that the permissible use was as circumstantial evidence relevant to the legitimacy of the investments.[94] That use had also been explained in the prosecutor’s closing address to the jury.[95]
[94] T 962.26-38. 963.26-34, 964.9-11, 34-37.
[95] T 907, 915-916.
The use of the letters as circumstantial evidence that the investments were a sham was permissible. At paragraph [110], the trial judge referred to SPM46 as one piece of evidence leading to his conclusion that no funds were ever invested with AOSUT. While the trial judge’s express engagement at [109] with his obligation under s 34R was not well put, the use to which he put this evidence is sufficiently clear from all of the circumstances. Having directly adverted to the prohibition on ‘propensity’ reasoning, in circumstances where he elsewhere had expressly identified, correctly, the use to which the evidence could be put, the trial judge manifestly adverted to both the permissible and impermissible uses of the evidence. There is no genuine risk that the judge may have put the evidence to an impermissible use.[96] Ground 3 fails.
[96] R v Pringle [2017] SASCFC 9 at [74] (Nicholson J, Kelly and Hinton JJ agreeing).
Conclusion
In circumstances where the various grounds of appeal overlapped so significantly and extended unnecessarily the length of the Notice of Appeal (including by way of sub-grounds), it is appropriate that permission be granted on the grounds that substantively raised the core issues requiring determination. As noted above, the appellant was entitled to raise Grounds 2 and 3 as of right. We grant permission to appeal on Grounds 1, 4, 5 and 6. In doing so we observe, again, that Grounds 4, 5 and 6 all involve a considerable amount of unnecessary duplication of the sub-grounds within Ground 2. That was not conducive to clear arguments or expedition. We refuse permission to appeal on Ground 7. We dismiss the appeal.