R v McNamara & Pitman - [2019] SADC 128

District Court of South Australia
(Criminal)
R v MCNAMARA & PITMAN
[2019] SADC 128
Reasons for the Verdicts of His Honour Judge Boylan
3 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERVERTING THE COURSE OF JUSTICE
First accused charged with theft (10); aggravated theft (7) and of using fabricated evidence in judicial proceedings (16). Second accused charged with one count of using fabricated evidence in judicial proceedings - part of same offending. Two previous jury trials miscarried - election for trial by judge alone.
Held: First accused guilty of all 33 counts- proved beyond reasonable doubt. Second accused - prosecution unable to prove beyond reasonable doubt accused had knowledge of investments - not guilty.

R v MCNAMARA & PITMAN
[2019] SADC 128
Reasons for verdicts

Stephen Patrick McNamara is charged with 10 counts of theft, 7 counts of aggravated theft and 16 counts of using fabricated evidence in judicial proceedings. Philip John Pitman is charged with one count of using fabricated evidence in judicial proceedings. After two jury trials had miscarried, the accused elected for trial by judge alone. I heard the trial and now give reasons for my verdicts.
As the Information is lengthy, I attach a copy of it to these reasons.
History of proceedings
This matter has an unfortunate history. A trial, before Judge Muscat and a jury, began on 2 July 2018 but, after five days, his Honour was obliged to declare a mistrial and discharge the jury. A new jury trial began (‘the second trial’) before me on 6 May 2019. During the first two weeks of that trial, I discharged two jurors as they were unwell. On 27 May 2019, the day that would have been the last day of the trial, I was obliged to discharge a third juror for the same reason. I then had no choice but to discharge the remaining 9 jurors and to declare a mistrial. The following day, without any opposition from the Director of Public Prosecutions, both accused filed applications for trial by judge alone, applications which I granted. The accused were re-arraigned and pleaded not guilty. I then embarked upon this trial, without a jury. Mr Foundas, for the prosecution, asked me to receive the transcript of his opening in the second trial as his opening in this trial; he then tendered all the evidence adduced by the prosecution in the second trial. He asked me to treat his final address in that trial as his address in this trial.
Mr Caldicott, for the accused Mr McNamara, followed the same course; he tendered Mr McNamara’s evidence in the second trial and asked me to rely on the transcript of his final address in that trial.
Mr Redmond, for the accused Mr Pitman, had not addressed before I discharged the jury. Accordingly, he addressed me in this trial on the basis of the evidence which had been tendered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McNamara & Pitman

Details

AGLC: R v McNamara & Pitman [2019] SADC 128
Case: [2019] SADC 128
Decision Date: 3 September 2019

CaseChat Overview and Summary

In the matter of R v McNamara & Pitman, the case before the court involved serious allegations against two individuals. The first accused was charged with multiple counts, including theft, aggravated theft, and using fabricated evidence in judicial proceedings. The second accused was charged with a single count of using fabricated evidence in judicial proceedings as part of the same offending. This case came before the court following two previous jury trials that had been unsuccessful, leading to an election for a trial by judge alone.

The central legal issues before the court were whether the first accused was guilty of all the charges against him and whether the second accused was guilty of the charge of using fabricated evidence in judicial proceedings. Specifically, the court needed to determine if the prosecution had proven beyond reasonable doubt that the second accused had knowledge of the investments in question.

In reaching its decision, the court meticulously examined the evidence presented. It found that in relation to the first accused, the prosecution had successfully proven each of the charges against him beyond reasonable doubt. However, concerning the second accused, the court concluded that the prosecution had not proven beyond reasonable doubt that he had knowledge of the investments. Consequently, the court found the second accused not guilty of the charge against him.

The court’s final orders reflect the findings of guilt and acquittal. The first accused was found guilty on all 33 counts. The second accused was acquitted of the charge of using fabricated evidence in judicial proceedings. This decision underscores the importance of the prosecution meeting the high threshold of proof required in criminal cases, particularly when it comes to charges involving fabricated evidence.

Orders