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 minutes before by the prosecution and by counsel for Mr McNamara. At the conclusion of Mr Redmond’s address, I reserved my verdicts.
Overview of prosecution case
Mr McNamara is a solicitor and a director of his firm, Commercial and General Law. Mr Pitman is a trustee of an entity known as the Andamooka Opal Stone Unit Trust (‘AOSUT’).
Mr McNamara’s firm operated a statutory trust account in which he held funds belonging to the estates of the late Neil Heanes and the late Mildred Matthews. It is the prosecution case that, on 17 separate occasions, over a period of some 18 months, McNamara transferred estate funds from the statutory trust account to other accounts which he operated before using the estate funds for his own purposes, such as paying his home loan and his staff’s wages. Those 17 transfers are the counts of theft and aggravated theft.
Because he had exhausted the Heanes estate funds in that way, Mr McNamara was unable to distribute the estate among Mr Heanes’s beneficiaries. Therefore, he used Matthews estate funds to do so. That left the Matthews estate beneficiaries unpaid and they eventually complained to the Law Society of South Australia. As a result of their complaint, the Law Society decided to appoint a supervisor to Mr McNamara’s trust account. In an attempt to prevent that appointment, Mr McNamara issued injunctive proceedings in the Supreme Court. In those proceedings both Mr McNamara and Mr Pitman filed affidavits. To their affidavits filed on 22 December 2014, each accused exhibited a letter, signed by Mr Pitman, addressed to Mr Rugari, an accountant. That letter asserted that the funds in the two estates had been invested. Mr McNamara filed another affidavit on 23 January 2015. He exhibited to that affidavit 16 documents entitled “Certificates of Investment”. The Rugari letter and those 16 certificates are, on the Crown case, fabricated because no moneys from either estate had ever been invested. The Rugari letter is the subject of counts 18 and 19 on the Information and the Certificates of Investment exhibited to Mr McNamara’s affidavit filed on 23 January 2015 are the subject of counts 20 to 34.
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.
Overview of defence case
Mr McNamara does not dispute that no moneys were ever paid directly from any of his accounts to AOSUT. His case is that he invested the funds without any money ever changing hands. He did so in the following way.
First, he transferred money from his statutory trust account into the Legal Costs Trust (‘LCT’), a trust he had established for the specific purpose of enabling clients to invest trust funds. 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 owed 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.
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.
Mr Pitman’s position is that Mr McNamara had invested estate funds with AOSUT, and, even if Mr McNamara had not done so, the prosecution has not proved that Mr Pitman knew there were no such investments when he swore the affidavit.
Assessment of witnesses generally
I have decided this case on the transcripts of evidence tendered. I have not assessed the evidence of any witness, including Mr McNamara, by reference to the witness’s demeanour.
Mr McNamara gave evidence. I have considered his evidence in the same way as I have considered the evidence of the other witnesses. I shall deal with it in more detail later. I do not accept much of Mr McNamara’s evidence and, where it differs from the evidence of prosecution witnesses, I prefer and accept the evidence of the prosecution witnesses. But I emphasise here that my rejection of Mr McNamara’s evidence is no basis for conviction.
Mr Pitman chose not to give evidence. I have not drawn any inference against him for exercising his right to remain silent.
With respect to both accused, I have reminded myself of the presumption of innocence and directed myself that, before I can convict either of them of any count, I must be satisfied that the evidence produced by the prosecution in support of that count, considered separately from the evidence in support of other counts, proves the particular offence beyond reasonable doubt. Neither accused is obliged to prove anything.
I shall explain later how I have used some evidence of uncharged acts. I have not used any evidence as evidence of propensity.
Undisputed background matters
By way of background to my consideration of the evidence, I set out some undisputed matters.
Former employees
Ms Helen Roach, the executor of both estates was first employed by the accused McNamara as a law clerk and, after her admission to practice in 2001, as a solicitor. Ms Roach left South Australia in 2007 but she always kept in touch with Mr McNamara.
Ms Bei-Bei Grieger (known as “Bella”) began working for Mr McNamara’s firm in September 2011, first as a paralegal officer and then, from the end of September 2011, as a solicitor on a Restricted Practising Certificate, which required that her correspondence be settled by a director of the firm. She remained subject to the Restricted Practising Certificate until the end of September 2013. During her two-year period of restricted practice, one of her supervising directors was the accused Mr McNamara. Ms Grieger worked on both the Heanes and Matthews estate files but always under the supervision of Mr McNamara.
Former clients and associated entities
Former clients of Mr McNamara’s included Mr Sotirios Portellos and his wife Ms Dorothea Tomazos (sometimes spelt “Tomazou”). At all relevant times they were living in Greece. Ms Tomazos is a solicitor. Mr McNamara had also acted for a company named Opal World Andamooka Australia Pty Ltd (‘OWAA’). At various times, its directors included Mr Portellos and Mr John Pitman, father of the accused Philip Pitman.
In January 2011, the Andamooka Opal Stone Unit Trust was established. Mr Portellos was a trustee until about December 2011. Ms Tomazos was both a trustee and the secretary of AOSUT from 1 January 2011. The accused Mr Philip Pitman was appointed a trustee on 19 December 2011, at about the same time as Portellos ceased being a trustee.
The “Certificates of Investment” the subject of counts 20 to 34 on the Information all include references to the “Avestra Credit Fund”. At relevant times, Avestra Asset Management Limited was a funds management business and Avestra Capital Proprietary Limited was a financial advisory business. Both businesses operated from Queensland. Neither business has any record of any investment or history of investments with any of the individuals, companies or trusts involved in this trial. The purported investment certificates the subjects of counts 20 to 34 were not issued by either of those Avestra businesses.
Natale Rugari
Mr Natale Rugari is an accountant registered with the Law Society to audit solicitors’ statutory trust accounts. By 2013, he had been auditing Mr McNamara’s statutory trust account annually for about 25 years. Those audits were compliance audits conducted by way of a sampling process to confirm that Mr McNamara’s law firm was complying with the relevant statutory regulations.
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.
In September of 2014, the Law Society asked Mr Rugari for information about purported investments in the name of a Mr David Khizam. Mr Rugari followed up that request by obtaining, from Mr McNamara, an email address for Mr Pitman as trustee for AOSUT. Mr Rugari then contacted Mr Pitman who replied, saying that he needed to obtain authority before he could provide any information.
In an email of 17 October 2014, Mr McNamara let Mr Rugari know that he, Mr McNamara, had been asked for authority to release the information. His email reads:
I have been asked by the investment trust for authority to release the information to you, which I have obviously given them. I presume they have contacted you to verify that it is a bona fide request?
Eventually, Mr Pitman sent to Rugari an undated letter confirming purported investments in the name of Khizam. Although the Law Society had only sought information about the Khizam matter, Mr Pitman went on to say in his letter:
In addition to this investment our investor has requested we confirm the following other investments arranged through the Legal Costs Trust.[1]
There followed two tables setting out the purported investments in the estates of Heanes and Matthews. That letter to Mr Rugari is, of course, the document the subjects of counts 18 and 19. I have attached a copy of it to these reasons.
[1] Exhibit P2, 342.
Mr Khizam was not called. He declined to give a statement to investigating police. I know nothing about him or his affairs.
The estates of Heanes and Matthews
Neil Heanes and Mildred Matthews both made wills in 2006, when Ms Helen Roach was employed as a solicitor at Mr McNamara’s firm. Ms Roach drafted the wills and, as I have mentioned, was appointed executor in each of them. Neil Heanes died on 27 May 2011. By then, Ms Roach had left Adelaide and was living in northern New South Wales. She had ceased working for Mr McNamara in 2008 but stayed in touch with him. Although she continued to practise law, Ms Roach did not do estate work and did not want to act as executor of the Heanes estate. When Mr McNamara told Ms Roach of Mr Heanes’s death, he suggested that she renounce her executorship and that he apply for a grant of probate as he had been appointed alternate executor in the will in the event of Ms Roach’s death. Ms Roach agreed. But the Supreme Court refused Mr McNamara’s application for probate and then, at his suggestion, Ms Roach applied for probate on the basis that she would continue as executor but that Mr McNamara would “do the work”.[2] That is what happened. Probate was granted to Ms Roach on 29 February 2012 and, from then on, Mr McNamara acted as her solicitor in all matters concerning the Heanes estate.
[2] Exhibit P2, 169.
The estate was worth about $480,000.[3] Mr Heanes left it between his four children but in unequal shares and there was a dispute about distribution of the estate. In that dispute, Mr Michael Hegarty acted as solicitor for three of the beneficiaries and Mr Mark Jordan, of Carpenter and Associates, acted as solicitor for the fourth. Mr Heanes’s children eventually settled their dispute by a Deed of Family Arrangement executed on 17 August 2012.[4]
[3] Exhibit P2, 173.
[4] Exhibit P2, 186.
Mr McNamara did not distribute the estate after the execution of the deed and Mr Hegarty and Mr Jordan began pressing him to do so. Mr McNamara told them that distribution was delayed because the estate funds had been invested pending resolution of the dispute and could not be paid out until the investments had matured.[5] He also told them that early calling-up of the invested moneys could result in “break costs” being borne by the estate. Pressure from the beneficiaries’ solicitors increased. Mr McNamara explained the delay by saying that he was making enquiries of what he referred to variously as the “investment entity” the “investment manager” and the “funds manager”. At no stage did he make any mention of the Andamooka Opal Stone Unit Trust. Eventually, Mr Jordan threatened action for breach of trust.[6]
[5] Exhibit P2, 199.
[6] Exhibit P2, 223.
While there had been some relatively small payments made to the Heanes beneficiaries, the bulk of the estate remained undistributed as at January 2013. Then, on 14 January 2013, approximately $280,000 from Ms Matthews estate was paid in to Mr McNamara’s trust account. On 22 and 23 January 2013, Mr McNamara withdrew sums of $170,000 and $100,000 respectively from those Matthews funds and paid them into the Legal Costs Trust. On 23 January 2013, he withdrew $260,000 from the Legal Costs Trust and paid $156,000 to Mr Hegarty and $104,000 to Mr Jordan.[7] The payment to Mr Hegarty was in full satisfaction of what was owed to Mr Hegarty’s clients, the minor beneficiaries of the estate. Mr Jordan’s client was not finally paid out until 6 June 2013, one day after Mr McNamara had withdrawn $160,000 from the Matthews estate and paid it into the Legal Costs Trust.
[7] Exhibit P1, 100.
Mildred Matthews died on 23 December 2012. By then, Ms Roach was living in Victoria. Ms Roach was notified of Ms Matthews’s death in an email of 23 January 2013 sent by Ms Grieger.[8] Ms Grieger suggested that Mr McNamara’s firm prepare probate documents and send them to Ms Roach for her to sign. As in the case of the Heanes estate, Ms Roach was the executor and Mr McNamara, with some assistance from Ms Grieger, acted as solicitor for the Matthews estate. Ms Grieger had no trouble contacting Ms Roach.
[8] Exhibit P2, 256.
Ms Matthews estate was worth some $500,000.[9] She left $10,000 and her personal effects to her friends Mr and Mrs Bonner; $10,000 to the Salvation Army; and the remainder in equal shares to her niece, Julie Roberts and her nephew, Phillip Matthews. Julie Roberts is married to Mr Phillip Roberts.
[9] Exhibit P2, 287.
Ms Matthews’s family had always believed that she had left her whole estate to the Salvation Army. Mr McNamara did not get in touch with Julie Roberts and Phillip Matthews about their aunt’s will and they knew nothing of their inheritances until Mr Phillip Roberts was asked by his father-in-law, who was doing some work on a family tree, if there was a copy of Ms Matthews’s will available. Mr Roberts eventually obtained a copy from the Supreme Court. Probate had been granted on 14 May 2013. After learning the contents of the will, Mr and Mrs Roberts were in regular contact with Mr McNamara. There was no reason why the estate could not be distributed promptly. Mr Roberts queried the delay and was told that the firm was awaiting the release of funds from Ms Matthews’s superannuation fund. Mr Roberts was satisfied with that answer but, after some little time, no funds had been distributed and he continued to ask for an explanation.
On 30 October 2013, Mr McNamara wrote to Mr and Mrs Roberts. I set out parts of his letter.
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.[10]
[10] Exhibit P2, 268.
After noting that probate had not been granted until 14 May 2013, Mr McNamara continued:
I appreciate that you had made enquiries 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.[11]
Having explained that some delays had been caused by banking regulations and by the requirements of Ms Matthews’s superannuation fund, he continued:
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.[12]
On 8 November 2013, Mr McNamara sent to Mr and Mrs Roberts, by email, a document headed:
Legal Costs Trust
OWAA Avestra Credit Fund
Statement of Investment
The certificate records that $465,000 has been invested and that “the anticipated payment on redemption” will be $487,194.63.[13]
[11] Exhibit P2, 269.
[12] Exhibit P2, 269.
[13] Exhibit P2, 272.

Mr and Mrs Roberts continued to make enquiries about the delayed distribution and Mr McNamara continued to give explanations. On 5 February 2014, he paid out $24,272.23 to each of Julie Roberts and Phillip Matthews. A couple of days later, by way of explanation for the delay, he told them that the “investment company does cheque runs at various times during the month”[14] and then, in a series of text messages between him and Mr Roberts between 3 March 2014 and 13 May 2014, Mr McNamara gave various explanations for the delay.[15] At no stage in any of those messages did he mention the AOSUT. All communication between Mr Roberts and Mr McNamara came to an end when, on 14 May 2014, Mr McNamara received a complaint from the Law Society about his handling of the Matthews estate.[16]
[14] Exhibit P2, 289.
[15] Exhibit P2, 297-334.
[16] Exhibit P2, 335.
Main bases of prosecution case
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.
Evidence of the forensic accountant
Ms Fiona Panagis, a forensic accountant, analysed Mr McNamara’s statutory trust account, his business accounts, and his personal accounts.
There were two parts to Ms Panagis’s analysis. First, she reviewed and identified deposits into Mr McNamara’s bank accounts that related to the Heanes and Matthews estates. After she had identified those deposits, Ms Panagis identified the withdrawals and subsequent use of the funds of those estates. The second part of her analysis was to undertake a review of the correspondence between Mr McNamara and AOSUT, being the correspondence exhibited to his affidavit filed in the Supreme Court, to determine whether there were any transfers of the funds of either estate to AOSUT and also to see how funds which had been transferred out of the statutory trust account had been disbursed. Because her conclusions were not challenged, I shall not describe the process involved in Ms Panagis’s analysis but I note this: in tracing the funds in both estates through the various accounts, Ms Panagis always gave Mr McNamara the benefit of the doubt; that is, she only ascribed transferred moneys to estate funds once she had satisfied herself that there were no other funds available to Mr McNamara.
Ms Panagis concluded that no estate moneys were ever transferred to the AOSUT and that that trust never transferred any moneys into the estates of Heanes or Matthews. Ms Panagis traced all of the estate moneys. Her tracing exercise showed 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. On each of the 17 charged occasions, the amounts the subject of each charge were transferred from the statutory trust account to the LCT account and from there into Mr McNamara’s business or personal accounts when there were no other funds available to him.
Ms Panagis also gave evidence about payments made to the beneficiaries of the estates – purportedly by way of interest on invested funds. Those “interest payments” did not come from the AOSUT but from Mr McNamara’s own funds, from his business account. Further, on some occasions interest payments simply went around in a circle between various accounts of Mr McNamara’s, sometimes all of the transfers occurring on the same day.
I accept Ms Panagis’s evidence. It was, as I said, unchallenged. Firstly, I find that no moneys were ever paid to AOSUT by LCT and no interest payments were ever paid by AOSUT to LCT. I find, on the basis of her evidence, that the amounts the subject of the 17 charged transfers varied. In the case of the Heanes estate, the smallest transfer was $10,000 and the largest $75,000. In the case of the Matthews estate, the largest amount transferred was $170,000 and the smallest $10,000.
Ms Roach’s evidence about the Heanes estate
Ms Roach always understood that, pending settlement of the dispute among Mr Heanes’s children, the estate funds would be held in Mr McNamara’s statutory trust account. Ms Roach provided no instructions for the funds to be invested; she had no discussions with Mr McNamara about investing the funds; and she did not know of any suggestion that the funds had been invested until investigating police officers contacted her. Ms Roach had no knowledge of any delay in the distribution of the estate. Indeed, after she executed the deed of family arrangement, she had no further dealings with the Heanes estate.
During her evidence, some documents which purported to advise her of investment of Heanes estate funds were put to her. One of them is a letter dated 17 July 2012:[17]
[17] Exhibit P2, 179.
I digress here to note that, in his evidence, Mr McNamara admitted that he wrote that letter to himself and placed on it an electronic version of the signature of Mr Sotirios Portellos. He inserted that signature by mistake; he had intended to insert the electronic signature of John Chambers, the other trustee of the Legal Costs Trust.[18] He kept electronic signatures of both men in his computer.
[18] T708.
Ms Roach denied ever having seen that letter.[19]
[19] T135.
Ms Roach also denied seeing a similar letter, dated 4 October 2012, again addressed to her and Mr McNamara at Mr McNamara’s Adelaide office address bearing the electronic signature of John Chambers.
Ms Roach also denied ever having seen any documents headed:
Legal Costs Trust
OWAA Avestra Credit Fund
Statement of Investment
Finally, Ms Roach denied ever having seen an email dated 7 June 2013 from Mr McNamara to Mr Jordan enclosing a “Final Settlement Statement” received from “the Investment Trust” and a “Consolidated Trust Account Statement”.[20] Ms Roach noted in her evidence that while that email is marked “cc Helen Roach” it does not contain her email address.
[20] Exhibit P2, 249.
I accept Ms Roach’s evidence. Her evidence about not receiving documents accords with there being no address for her on any of those documents which were put to her and which she denied seeing. I find that Ms Roach knew nothing about any purported investment of funds in the Heanes estate.
Ms Roach’s evidence about the Matthews estate
I turn now to Ms Roach’s involvement with the Matthews estate.
Ms Roach understood that funds in the Matthews estate would also be paid into Mr McNamara’s statutory trust account. She knew nothing of any purported investments until 31 January 2014 when she received an “update letter” from Mr McNamara. She remembers the circumstances leading up to her receipt of that letter. Mr Phillip Roberts rang her when she was at a barbeque on the Australia Day public holiday near the end of January 2014. She described him as having been “cranky”. She then rang Mr McNamara and, as a result of that call, Mr McNamara wrote to her. He wrote:
As the financial assets had been collected prior to probate being granted and given our experience of delays that had been occasioned in the Probate Office, the funds were invested in term deposits (This is permitted under clause 6 of the Will).[21]
[21] Exhibit P2, 277.
Mr McNamara went on to advise Ms Roach in that letter that $465,000 had been invested; that he had been advised that those investments would be paid out in early February; and that he was holding in his trust account $26,349.83 being the principal amount received from Ms Matthews’s superannuation fund and interest payments from the investment through to December 2014 in the sum of $22,194.63. He sought her instructions to pay out sums of $24,272.23 to each of Mrs Roberts and her brother, Mr Phillip Matthews. He went on to say that he would pay the outstanding amounts to Mrs Roberts and Mr Matthews and to Mr and Mrs Bonner and to the Salvation Army when the principal of the invested moneys came in.
It was Ms Roach’s evidence that, prior to 31 January 2014, she had never given any permission for any of the funds in the Matthews estate to be invested.[22] After receiving that update letter, she did not contact Mr McNamara about the investments because she believed that the funds had been invested in term deposits with a bank. She had no objection to that, but she would not have agreed to an investment with the Legal Costs Trust.
[22] T145.
Ms Roach’s next memory of any involvement with the Matthew’s estate was hearing that there had been a complaint to the Law Society. Some time after her hearing of that complaint, the police contacted her. I note here the evidence of Detective Brevet Sergeant Della Sala that police first became involved in this matter in July 2014.
Ms Roach denied that she had ever seen any of the certificates of investment exhibited to Mr McNamara’s Supreme Court affidavit. She gave no permission for any of those purported investments. She never knew of nor had any dealings with AOSUT.[23]
[23] T151.
In cross-examination, Ms Roach was asked about exhibit D4, an email to her from Mr McNamara dated 31 January 2014.[24] Attached to the email is the letter to Ms Roach dated Friday 31 January 2014 to which I have already referred and the Statement of Investment to which I have also referred. Ms Roach remembered receiving the email, which had been sent to her personal email address. Her memory is that she did not read the attached letter at the time but forwarded it to her office email address after she had had a quick look at it. The following day, when she opened the email in her office, she came to the letter and thought “I’ve already read this”. She did not see any attached Certificate of Investment. In evidence, she assumed that a certificate was attached because it was referred to in the email.[25]
[24] Email from Mr McNamara to [email protected] dated 31/01/2014 4.02pm with attached letter and Legal Costs Trust Statement.
[25] T170.
Near the end of her cross-examination, Ms Roach said that she did not actually think about the funds having been invested because, had she been asked about their being invested in a term deposit she would have readily agreed.[26]
[26] T171.
Again, I accept Ms Roach’s evidence. I find that, prior to 31 January 2014, Mr McNamara had never sought her instructions about investing any moneys in the Matthews estate and he had never told her of any purported investment of those funds.
E-Crime evidence
I turn now to the E-Crime evidence.
Police officers seized Mr McNamara’s office computer, his laptop and his mobile telephone. They also seized Mr Pitman’s mobile telephone and two laptops. The contents of those various devices were examined at the Electronic Crime Section (“E-Crime”) of the South Australian Police Department. Dr Yi-Chi Lin, who is attached to the E-Crime section, gave evidence about the results of those examinations. Dr Lin holds a PhD in Computer Science. There is no challenge to his qualifications or to his expertise.
Before turning to Dr Lin’s evidence, and in order to make its context clear, I go back briefly to some of Ms Panagis’s evidence and to the affidavit of Mr McNamara filed in the Supreme Court on 23 January 2015 (“the fourth affidavit”).
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 Trust 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.[27]
[27] Exhibit P1, 67.
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 hereto.
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.
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. I set out one of the letters in full.[28]
Dorothea Tomazou
C/- Adplan Pty Ltd
21 June 2012
The Directors
LMCS/SA Pty. Ltd. ATF
Legal Costs Trusts
By email
Dear Steve,
[28] Exhibit P2, 386.
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
(electronic signature of Dorothea Tomazu)
Dorothea Tomazou
Secretary for the Andamooka Opal Stone Unit Trust
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 a 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[29]. 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.
[29] T300.
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.
Skype messages
E-Crime investigators also examined a series of “Skype” messages mainly between the accused Mr McNamara, Mr Portellos and Ms Tomazos. Mr Pitman is included in some of them. These Skype conversations occurred between 5 December 2014 and 12 February 2015. Mr McNamara filed affidavits on 22 December 2014 and 23 January 2015. Mr Pitman filed his affidavit on 23 December 2014. It is the prosecution case that these Skype conversations again show McNamara working together with Mr Portellos and Ms Tomazos near the times the affidavits were filed to create a false set of documents.
In considering this evidence, I have borne in mind Dr Lin’s evidence that the Skype conversations before me are not necessarily a complete record of all the Skype communications between the various parties. To use Dr Lin’s exact words:[30]
We cannot be certain that the extractions from the database contain every single history of the conversation.
[30] T294.
I set out only some of those conversations.
On 22 December 2014, the accused McNamara sent to Ms Tomazos a message which included the following:[31]
…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.
[31] Exhibit P2, 359.
On 22 December 2014, McNamara sent this message:[32]
Dorothea are we able to come up with some money…as stated in the scheme of things not much is required.
[32] Exhibit P2, 360.
On 24 December 2014, McNamara sent this message to Mr Portellos:[33]
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.
[33] Exhibit P2, 361.
On 1 January 2015, Mr McNamara sent this message to Ms Tomazos:[34]
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 was all a big sham. Sotiri was bank rupt 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.
[34] Exhibit P2, 364.
On 13 January 2015 Ms Tomazos wrote to Mr McNamara:[35]
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?
[35] Exhibit P2, 366.
On 18 January 2015, Ms Tomazos wrote to Mr McNamara:[36]
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.
[36] Exhibit P2, 368.

I shall return to those messages as I discuss Mr McNamara’s evidence.
Evidence of the accused McNamara
Mr McNamara has been practising as a solicitor since 1978. His experience includes some three years as director of Professional Conduct and Practice at the Law Society of South Australia and as secretary of the Legal Practitioners Complaints Commission.
In 1987, Mr McNamara established a business called Legal Management Consultancy Services SA Pty Ltd (LMCS) Its directors were Mr McNamara and Mr John Chambers, a business associate of Mr McNamara’s. But, by 2006, that company was no longer being used for computing purposes, so Mr McNamara used it as a trustee company for the LCT[37].
[37] T500.
Mr McNamara had acted for Mr Portellos and Ms Tomazos in dealings with the Australian Taxation Office. As a result of those dealings they had supplied him with the ledger accounts of the ADPLAN Group of Companies.[38]
[38] T501.
Mr McNamara knew that AOSUT owned a large quantity of Australian opal which was kept in a storage facility at Cavan, in South Australia.[39] He had seen some of the opal when he attended a valuation of part of it. The opal was eventually valued at more than $US200,000,000. Mr McNamara understood that the opal was the trust’s “asset backing”.[40]
[39] T523.
[40] T613.
In October of 2011, in an unsigned letter from Ms Tomazos, AOSUT offered the LCT the opportunity to invest with it on terms and conditions offered by the Avestra Credit Fund.[41]
[41] Exhibit P2, 379.
After Mr McNamara became aware that there might be a delay in the distribution of the Heanes estate owing to the dispute among the beneficiaries, he accepted AOSUT’s offer and invested Heanes estate funds with that trust. To effect the investment he did not transfer a lump sum but transferred various amounts of money out of the LCT. I shall return to his reasons for doing so.
In order to create an audit trail, Mr McNamara ensured that all of the investment transfers were recorded. The transfer from the statutory trust account to the LCT was documented by a ledger entry and, when the money was invested, a Certificate of Investment was generated. That certificate showed when money had been invested, the amount invested, the interest and the term of the investment. Mr McNamara himself created the information contained in those certificates and a copy of the relevant certificate of investment was placed on the law firm’s files. By way of example I attach a copy of the certificate the subject of count 1.[42]
[42] Exhibit P1, 13.
The LCT’s balance ledger[43] in which the transfers were recorded was managed by the accused Mr McNamara in association with Mr John Chambers. Each of them stored their copies of that ledger on their home computers.
[43] Exhibit D6.
Mr McNamara gave evidence about his dealings with Ms Roach. He said that he informed Ms Roach of the investment of the Heanes estate funds.[44] After the Supreme Court refused his application for probate, and after he had sent Ms Roach an email advising her of that result, they had a brief telephone conversation. In that conversation, Mr McNamara told Ms Roach that the estate was going to be contested and, as it was going to be involved “as per our normal practice, the estate should be invested”.[45] Mr McNamara said that Ms Roach agreed and that he then invested the Heanes estate funds through the Legal Costs Trust. [46]
[44] T532.
[45] T505.
[46] T506.
It was Mr McNamara’s evidence that copies of the investment certificates which he prepared as part of the audit trail were provided to Mr Hegarty and Mr Jordan.[47]
[47] T508.
In the case of the Matthews estate, Mr McNamara attached copies of an investment statement in his update letter to Ms Roach of 31 January 2014, to which I have already referred. His copy of that letter, a covering email sent with it and a copy of the statement of investment comprise exhibit D4.
I turn to Mr McNamara’s evidence about the E-Crime evidence.
Mr McNamara denies that he created the letters to Dorothea not long before he filed his affidavit. He incorporated the letter dated 21 June 2012 from Ms Tomazos into the set of records he was compiling for ultimate use in his affidavit. He incorporated the letter by using the “save as” function on his computer.[48] His use of that function explains the apparently anomalous (later) creation dates incorporated into the various versions of the letter.
[48] T698.
It was Mr McNamara’s evidence that he created the various letters from Dorothea from an original letter dated 21 June 2012, a letter which he had received at about that time. He opened that file, and used the “save as” function, thus creating a new file.[49] So, there is Mr McNamara’s explanation for the apparently anomalous dates: because a new file had been created, the “content created” field in the metadata shows January 2015 not the much earlier date of the creation of the letter, namely, 21 June 2012. In other words, January 2015 dates appear because that was the time at which he was collating and saving documents for incorporation into his affidavit.
[49] T705.
But it was Dr Lin’s evidence that, while the use of the “save as” function creates a new file, it does not destroy the old file from which that new file has been created. There is no evidence from Dr Lin that the letters which he examined and about which he gave evidence were anything other than versions of the first created letter preserved in the metadata of the relevant files.
Further, Mr McNamara’s explanation of the “save as” function does not account for the fact that one of the four letters is dated 1 March 2012. That date is plainly wrong; there is no dispute about that. It was quite clear from Ms Panagis’s evidence that the $35,000 transfer from the Heanes estate was made on 22 June 2012.[50]
[50] T411-412.
In cross-examination, Mr McNamara agreed that the date 1 March 2012 is wrong. He said:[51]
It’s an error. I can’t explain why that would be but it’s not the correct letter.
He went on to say that, as he was saving documents he was using the “save as” function and changing the names of the files but not the content. But he could not explain why the June date had been changed to a wrong date in March. He suggested that it could have been an “automatic update”. His final answer on the topic was:[52]
I don’t know why the date is different.
Mr McNamara denied the suggestion put to him that the explanation for the date anomalies was that, in January 2015, he was creating the documents “from scratch”. I again note here that Mr McNamara is not obliged to prove anything.
[51] T705.
[52] T705.
I accept Dr Lin’s evidence and I find that the four letters to which I have referred were all created by Mr McNamara in January 2015. In particular, I find that the letter dated 21 June 2012 exhibited to Mr McNamara’s fourth affidavit at SPM46 was first created at about the same time as the affidavit.
Mr McNamara gave evidence about, and was cross-examined at some length about, the Skype messages. He maintained that the Skype messages represent efforts made by him to force AOSUT to repay the invested moneys. He explained his suggestion that AOSUT attempt to pay the funds into a bank account by saying that all he was doing was asking that the money be paid. When asked why he said to Ms Tomazos “are we able to come up with some money?” he answered that he used “we” because it is “a colloquial term”. He explained his statement that he might end up in gaol as an attempt by him to get “them” to realise how serious the situation was.[53] When asked why he was corresponding on many occasions with Mr Portellos, rather than Ms Tomazos, when Mr Portellos was no longer a trustee of AOSUT, he said that Mr Portellos was working on Ms Tomazos’s behalf.[54] He said that he was sending his affidavit to be checked by Ms Tomazos to ensure that the facts that he had in his affidavit were correct.
[53] T675.
[54] T676.
When asked why he was sending his affidavit to people who might cause him to go to gaol, Mr McNamara answered:[55]
For them to look at to make sure that what I was putting in they agreed with. That doesn’t mean to say that I would have accepted what they came back with. I wanted to know what they had to say with respect to what I was putting to the court.
In my view those explanations are quite implausible. They are not the 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 recover legitimately invested estate moneys.
[55] T682.
In my view, the Skype correspondence supports the Crown’s submission that Mr McNamara, Mr Portellos and Ms Tomazos were all engaged in creating a false set of documents to deceive the Law Society and the Supreme Court.
There are other aspects of Mr McNamara’s evidence which I find implausible. I am not going to deal with all of them. But one is especially significant.
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:[56]
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.[57]
[56] T641.
[57] T643.
I do not accept Mr McNamara’s explanations. As I have just mentioned, the transfers of smaller sums after he had been permitted 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.
I mention one other topic about which he gave evidence. On 22 January 2013, Mr McNamara transferred $170,000 from the Matthews estate to the Legal Costs Trust. He admitted in his evidence that he did so without first obtaining Ms Roach’s instructions. He had already told the police in his interview that he had made that transfer without instructions, saying:[58]
I tried to get instructions, I hadn’t been able to contact Helen Roach.
He went on to say that it was his belief that he had “standing instructions” from Ms Roach and that, if she did not later give those instructions, he could have reversed the transfer. [59]
[58] T634.
[59] T635.
I do not accept that explanation. This was the first purported investment of Matthews estate money. I do not accept, in those circumstances, that a solicitor acting professionally in the normal course of his practice would invest moneys without first obtaining the instructions of the executor of the estate. Nor do I accept that he ever had any trouble contacting Ms Roach. He always had Ms Roach’s mobile number, a number that had not changed since 2007, and when her office email address changed, she had sent him the new one.
I do not intend canvassing Mr McNamara’s evidence further. I have considered all of it carefully as I have considered carefully all of the documents tendered by him and his police interview. In my view, Mr McNamara was not an honest witness. As I mentioned earlier, where his evidence or documents tendered by him differ from the evidence of the prosecution, I prefer and I accept the evidence of the prosecution.
Uncharged acts
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.
Conclusion
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.
I must then determine whether or not, the prosecution has proved beyond reasonable doubt each of the elements of the offences with which Mr McNamara is charged.
The prosecution must first prove that Mr McNamara dealt with the moneys in the estates. There is no doubt about that. He effected each of the 17 transfers.
Next, the prosecution must prove that Mr McNamara transferred the sums the subject of each count without Ms Roach’s consent. As I have said, I accept Ms Roach’s evidence that she did not consent to any of the transfers the subject of these charges.
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.
Finally, the prosecution must prove that, at the time of each transfer, Mr McNamara intended to deprive the relevant estate permanently of the money or, at the time of the relevant transfer, he intended to make a serious encroachment upon the owner’s rights. 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.
Element of aggravation
There is no doubt that, as a solicitor, Mr McNamara was in a position of trust. In the case of all 17 counts of theft he breached that trust. Only 7 of the counts are charged as aggravated counts because the aggravated offence was first enacted after the offending in count 10 occurred. I find the circumstance of aggravation proved in counts 11 to 17.
In summary, therefore, I am satisfied beyond reasonable doubt, having considered the evidence against Mr McNamara with respect to each of the 17 counts separately that he is guilty of the 10 counts of theft and 7 counts of aggravated theft.
I find that he stole $385,000 from the Heanes estate and $465,000 from the Matthews estate.
To prove the counts of using fabricated evidence, the prosecution must prove beyond reasonable doubt that the accused used the document the subject of the particular charge, be it a purported certificate of investment or the Rugari letter. I am satisfied beyond reasonable doubt that, in the case of each of those 16 charges, Mr McNamara used the document by filing it in the Supreme Court exhibited to the relevant affidavit.
Next, the prosecution must prove that at the time of using the document in that way, he knew that it was fabricated; that is, he knew that it was deliberately false. I am satisfied of that element beyond reasonable doubt with respect to each of the charges because no investments were ever made.
Finally, the prosecution must prove that, at the time of filing the affidavit containing the document, Mr McNamara intended the relevant document to influence the outcome of the proceedings in the Supreme Court. I am also satisfied, with respect to each of the counts of using fabricated evidence, that the prosecution has proved that element; that is, I am satisfied beyond reasonable doubt that Mr McNamara intended to influence the outcome of those proceedings by persuading the presiding judicial officer that he had, in fact, invested the estate funds with Andamooka Opal Stone Unit Trust. I have, of course, directed myself that the proceedings between Mr McNamara and the Law Society were judicial proceedings. I am therefore satisfied beyond reasonable doubt he is guilty of the 16 counts of using fabricated evidence.
The case against Pitman
Mr Pitman is charged with one count of using fabricated evidence. Before I could find him guilty of that offence, I must be satisfied beyond reasonable doubt that he knew that no estate funds had been invested in either estate as asserted in the letter which he sent to Mr Rugari and which he exhibited to his affidavit.
The prosecution submitted that I can infer such knowledge from a number of facts, including that fact that Mr Pitman was a trustee of AOSUT; from his statement in the affidavit that he had access to the books and records of the trust; and from the contents of the Skype messages found in his electronic devices.
While I acknowledge that there is significant force in the Crown’s submissions, I am not satisfied beyond reasonable doubt that Mr Pitman knew that there had been no investments. In coming to that conclusion, I have borne in mind that suspicion, even deep suspicion, is insufficient for a finding of guilt.
I have a doubt about the extent of Mr Pitman’s knowledge for a number of reasons. While he is a trustee, it seems to me a possibility that he may be something of a “puppet”. It is clear from the agreed facts that he became a trustee at about the time Mr Portellos ceased to be one, near the end of 2011. It was Mr McNamara’s evidence that Mr Portellos became bankrupt in the second half of that year. Although I cannot know, it seems to me possible that Mr Pitman held the office while Mr Portellos continued to “pull the strings”. Further, suspicious as some of the Skype conversations involving Mr Pitman are, in some of them he is plainly seeking instructions. And, after all, it was Mr McNamara who was responsible for the first draft of the Rugari letter; Mr McNamara admitted that. The extent of the knowledge of some of the parties to the Skype conversation is cloudy. Even Ms Tomazos, also a trustee, did not know who David Khizam was: she said in an email sent to Mr McNamara on 10 October 2014:[60]
…Adplan has nothing to do with David Khizam – whoever he may be.
So, I am unable to infer that all parties to the Skype conversations were fully aware of the affairs of the AOSUT.
[60] Exhibit P2, 407.

There is a further matter which causes me to be doubtful about the extent of Mr Pitman’s knowledge. The affidavit to which Mr Pitman’s letter was exhibited was filed by Mr McNamara’s firm. In his evidence, Mr McNamara conceded the affidavit may have been drafted by a solicitor at Commercial and General Law but denied having had a hand in the drafting of it himself.[61] As I am not prepared to rely on Mr McNamara’s evidence, I think it may well be a possibility that he drafted the affidavit and Mr Pitman signed it possibly not knowing of the falsity in the Rugari letter.
[61] T620.
I find Mr Pitman not guilty of count 19, the only charge against him.