R v Thompson; R v Farrugia (No.2)

[2019] NSWDC 329

District Court

New South Wales

Medium Neutral Citation:	R v Thompson; R v Farrugia (No.2) [2019] NSWDC 329
Hearing dates:	24 and 25 June 2109
Date of orders:	25 June 2019
Decision date:	25 June 2019
Jurisdiction:	Criminal
Before:	Smith SC, DCJ
Decision:	In respect of Counts 2 and 3 there should be a directed verdict.
Catchwords:	CRIMINAL LAW – verdict by direction
Legislation Cited:	Corporations Act 2001 (Cth) Criminal Code
Cases Cited:	Commonwealth Director of Public Prosecutions v Poniatowska (2011) 244 CLR 408 Doney v The Queen (1990) 171 CLR 207 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 R v Barbouttis (1995) 37 NSWLR 256
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ian Athol Thompson – Defendant Joseph Carmec Farrugia - Defendant
Representation:	Counsel: Crown: Mr L Fernandez with Mr C McGorey Ian Athol Thompson: Mr P Boulten SC with Mr A O’Brien Joseph Carmec Farrugia: Mr P Strickland SC with Mr S Wells     Solicitors: Crown: Commonwealth Department Public Prosecution Ian Athol Thompson: Clayton Utz Joseph Carmec Farrugia: McPherson Kelly
File Number(s):	2017/305308 – Ian Athol Thompson; 2017/305247 – Joseph Carmec Farrugia
Publication restriction:	Nil.

Judgment

1. Each of the accused is being tried on indictment of three charges. At the conclusion of the Crown case the accused each made an application that there be directed verdicts of not guilty on each count. I concluded that there should be a directed verdict in respect of counts 2 and 3 but not in respect of count 1. These are my reasons for that conclusion.

Relevant principles

2. The principles were not in dispute and are set out in the written submissions for Mr Thompson at [4] to [14]. In summary, there must only be a directed verdict if there is no evidence on which a jury, properly directed, could convict. There must, in other words, be no logical basis in the evidence to conclude that each element of the offence in question has been established.

3. Determining the availability of inferences from evidence and drawing a distinction between an inference and speculation is not without difficulty. Differences of opinion can occur even at the highest level: see, for example, Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. The resolution of those issues in other cases can be instructive. In Doney v The Queen (1990) 171 CLR 207 the High Court considered whether it was open to infer that the accused was involved in the importation of cannabis resin from a note written by him some weeks after that importation concerning the delivery of the substance to a particular vehicle. The Court said, at 212:

… given that it was only a matter of some few weeks since the container had been landed in Sydney, it was open to the jury to reason that it was likely, although not inevitable, that the person who wrote the note, thus exercising dominion over the boxes from the container by directing the removal of some of them to some other place, was a person who had been knowingly concerned in the importation of its contents.

4. The logical connection between the note and involvement in the importation was the combination of the time since importation and the exercise of control over the substance. That involved a qualitative and contextual analysis of the evidence of the note.

Count 1

5. The first charge on the indictment is that Mr Thompson and Mr Farrugia between about 7 November 2008 and about 30 June 2011 at Sydney, New South Wales and elsewhere, did conspire with each other, Samantha Cousins, and Glyn Raines, being officers or employees of Hastie Services Pty Ltd to engage in conduct that results in the falsification of books affecting or relating to the affairs of Hastie Services Pty Ltd.

6. The Crown particularised this charge as follows [1] :

“The Crown case is that the agreement that it alleges was made on 7 November 2008 was an agreement to falsify entries in the general ledger of Hasty [sic] Services, to improve the reported EBIT results on an ongoing “as needs” basis when it was judged that the gap, or the magnitude of the gap, between the actual EBIT and the budget or forecast was unacceptable.”

1. Transcript D5.79.26-31.

7. The elements of the offence are as follows:

1. the physical element of the offence is that the accused did conspire with one or more other persons to commit an offence contrary to s 1307(1) of the Corporations Act 2001 (Cth): s 11.5(1) Criminal Code 1995 (Cth);

2. the fault element is that the accused intended to conspire with at least one other person to commit the offence against s 1307(1) of the Corporations Act: ss. 5.6(1) and 11.5(1) of the Code.

8. The Crown must establish against each accused that:

1. the accused and at least one other person entered into an agreement: s 11.5(2)(a) of the Code;

2. the accused and at least one other party to the agreement intended that the offence against s 1307(1) of the Corporations Act would be committed pursuant to the agreement: s 11.5(2)(b) of the Code; and

3. a party to the agreement committed an overt act pursuant to the agreement: s 11.5(2)(c) of the Code.

Consideration

9. There is little question that it is open to a jury to find that the alleged conspirators agreed in November 2008 to make false entries in the books and records of Hastie Services: Samantha Cousins examined the draft month end accounts for October 2008 and, in an email to Ian Thompson, proposed various adjustments be made to them. She expressed discomfort about making those adjustments and explained why. Mr Thompson wrote back, copying both Mr Farrugia and Mr Raines, saying that he had discussed it with Mr Farrugia and that “we will take these adjustments to the result up for the Month of October”. Ms Cousins then effected the adjustments. Each person was involved in, and so could be taken to have agreed to the adjustments, the actions were arguably illegitimate for the reasons given by Ms Cousins and action was taken on the decision.

10. The only question is whether it is open to find that the agreement was to adjust the EBIT on an ongoing, as needs, basis. There was nothing express or implicit in the email of the time to support that conclusion; however, the Crown relies on the fact that there were similar steps taken by two or more of the alleged conspirators over the next 2 and a half or so years. That requires a qualitative analysis of those steps. For that purpose, the timing, subject and context of the steps is important. There are two categories of transactions involved: first, those concerning the business of Hastie Services in Queensland and, secondly, those concerning issues that arose on the balance sheet of the business in Western Australia (WA Issues).

11. Two very real difficulties face the Crown in its case. First, there is direct evidence that there was in fact no agreement as charged; and secondly, the Western Australian transactions are not only of a different character to the others, but the uncontested evidence is that they were driven by people outside of the group of alleged conspirators, namely, officers of the parent company, Hastie Group Limited (Group). If accepted, those two matters may well be fatal to the Crown’s case. However, it is a matter for the jury to decide what evidence it accepts or not and what weight is to be given to evidence that is accepted. I must take the Crown’s case at its highest and leave those matters to one side. On that approach, while the matter is not without difficulty, I have concluded that inferences may be drawn from the course of conduct of members of the alleged conspiracy that raise matters of degree, impression and empirical judgment. Giving full weight to that, I am not satisfied that a jury could not be satisfied that the elements of the first charge have been proven.

12. I have already dealt with the first sequence of events in November 2008. I now turn to the later events which, in my view, support the inferences contended for by the Crown.

13. In an email dated 8 April 2009 Mr Raines addresses finance managers about the fact that the result for the previous month (i.e. the EBIT) was short of budget. He said that Mr Farrugia would “undoubtedly” “work the GM’s until they give something you will have to clean up later”. It is open to infer from this that Mr Farrugia had a practice of asking for adjustments to the results that were not legitimate. That inference is underscored by the balance of the email that suggests that, up to that point, the finance managers had done everything legitimately available to increase the result. In light of those inferences, the transactions in November 2008 can possibly be seen to be part of a larger practice or agreement.

14. Emails on 9 July 2009 between Mr Raines and Ms Cousins (amongst others) and subsequently, between Ms Cousins and Mr Thompson add further strength to that inference. Mr Raines wrote about having a $250k “gap to fill” and that he “would like you please to do an entry of your choice to increase the EBIT”. There was no justification for the request other than to increase EBIT and it may be inferred that the means could be illegitimate. Ms Cousins met the request and told Mr Thompson. He replied “No dramas mate, I have also had Joe on the phone!!” In the context of the April email, this supports the inference that Mr Farrugia (Joe) was continuing his practice and, in turn, that Mr Raines, Ms Cousins, Mr Thompson and Mr Farrugia were carrying out their ongoing agreement.

15. At this point the focus shifts to the WA issues. It is unnecessary to examine each of the asserted acts in detail. It is necessary to note that counsel for Mr Thompson argued that a number of these acts did not properly correspond to count 1, but rather to count 2. In one sense that submission is correct: there were a number of instances where the failure to take a particular action in respect of a line item in an account was relied on by the Crown (specifically overt acts 35 and 37). Count 2, as will be seen, alleges an agreement to fail to take actions whereas Count 1 is put in positive terms: falsify entries. I have not found it necessary to determine that argument because there are sufficient other acts from which the pleaded agreement may be inferred. I note, in any event, that overt act 37 is no longer relied on by the Crown.

16. One act relied on by the Crown that relates to a potential omission is the email from Ms Cousins to Mr Thompson on 9 April 2010. By this time, Hastie Services had been re-organised into two regions, North and South. Mr Thompson was the General Manager for the North region and Ms Cousins was its Financial Manager. The businesses in Western Australia were in the North region and so were the responsibility of Mr Thompson and Ms Cousins. So it was that, in about March 2010, Ms Cousins started looking at the accounting records in Western Australia and discovered the WA issues. This context is important and may ultimately undermine the whole of the Crown case. However, looking globally at the way in which the WA issues were dealt with, it is possible to see a pattern emerge of moulding the accounts to suit an outcome, and an overall willingness in the alleged conspirators to create an impression of the state of the business that was either actually or probably inaccurate.

17. Thus, in an email of 9 April 2010 to Mr Thompson, Ms Cousins identified a potentially large issue and suggested a way of holding it over to be dealt with at a later time. That may, or may not have been for illegitimate reasons; for present purposes that does not matter.

18. In April there was a transaction by which $897,000 was transferred to a particular account with a contemporaneous journal entry reversing that transaction at the beginning of the next month. In an email to Ms Cousins and Mr Raines, the person who undertook this noted that this was “as discussed, bringing closing EBIT for WA to $272K”. Mr Thompson was eventually copied in on this by Ms Cousins with a message that she did not “have enough to close the below to the number delivered to the Board…” This transaction effectively kicked the issue of the $897,000 down the road to be dealt with later. It is not necessarily nefarious, however, it does show a willingness to manipulate the accounts to meet a particular number and that the willingness was joined in by Mr Thompson and Mr Raines.

19. In an email dated 8 July 2010 Mr Raines told Ms Cousins that he had reviewed the WA position with Mr Farrugia and that it was “not pretty”. He then wrote:

“Cutting to the chase, can you put $200k back into the result – I am not going to say where.

Joe is just on the phone to Ian …”

20. This interaction supports the inference that the agreement was ongoing. It may be inferred from the reference to the “review … with Joe” and the request that followed that both Mr Farrugia and Mr Raines discussed, and agreed upon, the need to improve the WA result. The lack of specificity in the request supports the inference that the addition could be illegitimate and the fact that Mr Farrugia was on the phone, in the context of the April 2009 email and the request in this email, supports the inference that Mr Farrugia continued with his practice of asking for adjustments to results that may be illegitimate. As the interaction involved all four alleged conspirators, it supports the conclusion that this was part of an ongoing understanding or agreement.

21. In September 2010 Mr Thompson was out of Australia and Ms Cousins was acting General Manager. Mr Farrugia spoke to her by telephone at this time about the WA results and asked her to see if there was a better number that could be achieved [2] . She understood that there were two aspects to this request: first, that there was a number that would have to be achieved regardless, and secondly, that there might have been something that they had actually missed in the process. Although the basis of that understanding was not at all clear, and indeed may not have come from anything Mr Farrugia said at that time, it is still possible to infer from this conversation that there was a general understanding between Ms Cousins and Mr Farrugia that adjustments were to be made whenever and however the circumstances required. Again, this interaction must be seen against the background of what had occurred since November 2008. The longer temporal context is important and gives scope for an impression to be gained, or judgment made, at a general level about the practices engaged in with respect to the accounts of the company. These practices, in turn, seen over a period, support the inference that there was an agreement or understanding.

    2. Transcript D8.312.18.

22. Finally, in June 2010 Mr Thompson gave Ms Cousins a profit and loss report on which he had handwritten certain actions to be taken by way of adjustments. This followed email correspondence between Mr Thompson and Mr Farrugia (copied to Mr Raines) in which Mr Thompson foreshadowed another gap (between actual and forecast EBIT) and Mr Farrugia replied that “we must close out as our total result is in the prospectus and cannot come off.”

23. The prospectus referred to related to capital raising being undertaken by Group.

24. Ms Cousins’ evidence was that there was then a discussion between Mr Raines, Mr Farrugia, Mr Thompson and herself before she was given the document with the handwritten note. She said that there was no legitimate basis for the suggested adjustments. The clear inference available from this is that the four alleged conspirators were, again, adjusting the records with the sole purpose of achieving a particular result, namely, an improved EBIT.

25. The significant gap in time between this interaction and the last interaction concerning the Queensland business weakens any possible connection between this event and the agreement in November 2008. However, the similarity in approach and purpose, give the basis for some logical connection between the two events. If this had been the only interaction after November 2008, that connection would have been speculative at best. However, each of the other matters I have referred to provides the necessary link between June 2011 and November 2008 so that it is possible to infer that it was another instance of the same agreement rather than, say, simply an ad hoc event involving the same people.

26. For those reasons, I am satisfied that there is evidence on which a jury could convict each of the accused in respect of count 1 on the indictment and I refuse the application to direct the jury to return a verdict of not guilty.

Count 2

27. Count 2 is, at a general level, the same as Count 1 except that it concerns the period 5 May 2010 to 13 February 2011. That period is immediately recognisable as referrable to the WA issues discussed briefly above. The important distinction, however, is that the offence which is said to have been the object of the conspiracy to commit was one of omission. In its case statement the Crown explained that the parties conspired:

“… to commit an offence against s 1307(1) of the Corporations Act, namely as officers or employees of Hastie Services Pty Ltd (“the company”), to engage in conduct that resulted in the falsification of books affecting or relating to affairs of the company, by not correcting overstatements of assets contained in the financial records of the company’s Western Australia branch.”

28. The accused both argue that the fact that the physical element of the offence under s 1307(1) as contended for by the Crown involves an omission brings s 4.3 of the Code into consideration. During the period of the charge, that section provided:

4.3 Omissions

An omission to perform an act can only be a physical element if:

(a)   the law creating the offence makes it so; or

(b)   the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.

(Emphasis in original)

29. The “law” here is a Commonwealth law.

30. This provision was considered by the High Court in Commonwealth Director of Public Prosecutions v Poniatowska (2011) 244 CLR 408 in which the respondent had initially pleaded guilty to offences of “obtaining financial advantage” under s 135.2(1) of the Code. It was an offence under that provision for a person to engage in conduct, and as a result of that conduct, obtain a financial advantage from another person (being a Commonwealth entity). As in the Corporations Act, the Code defined “engage in conduct” as doing an act or omitting to perform an act. The question before the High Court was whether the omission to perform an act that a person is not under a legal obligation to perform may be a physical element of the offence created by s 135.2(1).

31. The Court held, by majority that, by operation of s 4.3 of the Code, such an omission could not constitute a physical element of the offence. Their Honours said, at 422:

“35.   If the law creating the offence does not criminalise the failure to do a thing (the exception to the general principle stated in s 4.3(a)) and if that failure is not the breach of a duty imposed by the law (the exception to the general principle stated in s 4.3(b)) it is difficult to characterise the fact that a person does not do the thing as the omission of an act. …”

32. Applying this, the accused argued that the Crown had not established and could not, on the evidence, establish that there was either a proscription in the Corporations Act against the failure to change the books of Hastie Services or that the failure to do so was in breach of a duty imposed by a Commonwealth law. In respect of the latter it was noted that there was, for example, no evidence to support the contention that certain doubtful debts, as a matter of law, were required to be removed from the balance sheet of the company and taken to the profit and loss account.

33. The Crown did not cavil with either of those propositions but contended that the argument misses the point as the offence was one of conspiracy and the physical element was a positive act, not an omission. In the alternative, it argued that s 1307(1) did proscribe a failure to act because, as I have noted, “engage in conduct” is defined to include omitting to perform an act. Neither argument can be sustained.

32. The difficulty with the first argument is that the agreement said to be a conspiracy was to commit an offence under s 1307(1) of the Corporations Act. If what the parties to the agreement agreed to do was not, and could not be an offence, then there is no offence of conspiracy. The law relating to conspiracy punishes people because of the nature of the agreement they have made: R v Barbouttis (1995) 37 NSWLR 256 at 266 (Gleeson CJ). Thus, if, as is the case here, there is no proscription of an omission in the substantive offence and no obligation under Commonwealth law to perform a particular act, there can be no unlawful conspiracy not to do that act.

33. The second argument fails on the express authority of Poniatowska. The majority addressed the issue at 423:

“37   … Section 135.2(1)(a) allows that the offence is one that may be committed by the omission to perform an act but the provision does not proscribe the omission of any specified act. The law creating the offence does not make the omission of an act a physical element of the offence within the meaning of s 4.3(a).”

(Emphasis in the original)

36. Justice Heydon dissented on this point, relying on the definition of “engage in conduct”: CLR 425 [46]. While much might be said in favour of that view, the majority view prevails and disposes of the Crown’s alternative argument.

37. I am satisfied that there is no evidence on which the jury could convict either of the accused in respect of count 2 on the indictment.

Count 3

38. This count is that between about 17 June 2010 and 9 April 2011 at Sydney, New South Wales and elsewhere, the accused conspired with each other, Ms Cousins and Mr Raines, being officers or employees of Hastie Services Pty Limited to make false information available to an auditor that related to the affairs of Hastie Services Pty Ltd, knowing that the information was false or misleading in a material particular.

39. The Crown relies on two essential acts of concealment from the auditor. The first in June 2010, relating to the audit conducted in respect of the second half of the financial year ending 30 June 2010; and the second in February 2011, relating to the audit conducted in respect of the first half of the financial year ending 30 June 2011.

June 2010 concealment

40. The June 2010 concealment turns on a plan developed to deal with the WA Issues. There are three parts to the Crown’s case in this respect:

1. emails and discussions between Ms Cousins, Mr Raines and Mr Thompson in early June 2010;

2. an email from Ms Cousins to Mr Raines and Mr Thompson regarding a “plan of attack”; and

3. the later concealment by Ms Cousins of $500,000.

41. While the Crown relies on the falsity of the accounts in and of itself as part of the conspiracy, the overt acts relied on as part of its case only include one aspect of those accounts: the transfer of approximately $500,000 of WA issues to another account by Ms Cousins. It is important, then, that there is a link between that transfer (and the later concealment of it for the purposes of the audit) and the accused.

The conversations

42. In her evidence Ms Cousins said that she had meetings with Mr Thompson and Mr Raines in the beginning of June 2010 about the WA Issues. The Crown relies on the following passage in her evidence [3] :

“Q.   At the end of those conversations that there were had among the three of you, together was there an outcome? …

A.   Yes. There was a plan of attack to be put together for how we would deal with the WA issues.

Q.   You use the words plan of attack. What do you mean by that?

A.   I, like a plan to write off several things, adjust certain things, move certain things between different accounts on the balance sheet. Make them, I guess, less obvious than they currently stood.”

3. Transcript D7.222.25-34

The emails

43. The critical email was sent by Ms Cousins on 10 June 2010 to Mr Thompson and Mr Raines in which she wrote:

“Please confirm this is the plan of attack you want in place for WA for year end:

1: Write off all bank issues in this year

2: Adjust I/C with Austral if required

3: Split Lge Project that holds adjustments into four effective as of May

4: Invoice out all old jobs in Projects (over 180 day WIP), hold statements, and then credit in late August

5: Explain reason for $360k (which is net adjustment of March adjustment)

6: Review all other identified issues”

44. Both Mr Thompson and Mr Raines replied saying that they agreed.

45. Ms Cousins gave evidence about what she meant by each of these points, but did not say that any of them included transferring large amounts of WIP from the accounts of the WA business.

Ms Cousins transfers amounts out of WA to FNQ

46. This part of the sequence has two parts. First, Ms Cousins posted an amount of $498,000 in respect of outstanding work in progress (WIP) from the Western Australia accounts to the accounts for Far North Queensland effective as at 31 May 2010. Next, she emailed Mr Raines spreadsheets of the Western Australia WIP accounts that did not include the $498,000. She did this so that Mr Raines could, in turn, send these to the auditor. Mr Raines then sent the spreadsheets to the auditor.

Consideration

47. There are a number of fundamental flaws in the Crown’s case. Overall, it is important that the Crown must establish a link between the conversations in early June and the ultimate form of the document that was sent to the auditor. It is only by establishing that link that it is possible to find that there was an agreement that involved one or more of the accused in the final concealment. The flaws in the evidence are as follows:

1. one premise of the Crown’s argument is that the conversations about the WA Issues and the “plan of attack” emails all occurred at a time when it was known that the auditor was going to examine the books of the Western Australia business. Obviously, that would have provided an important context to those communications. However, there is no evidence to support it and, indeed, the evidence is all one way against it. The meeting in which that question was decided was held in the week starting 14 June 2010 [4] .

2. There is a gap between the conversations in early June, the “plan of attack” email and the acts of concealment relied on as part of the offence. According to Ms Cousins, it was only agreed that a “plan of attack” was to be put together. In her email, she asked for confirmation that what she had written was what was suggested. That confirmation was given. Critically, the “plan of attack” email said nothing about moving amounts from the balance sheet of one business to another business. Together, subject to one thing, those facts deny the possibility of an agreement to transfer WIP and then to hide that fact from the auditor.

3. The qualification referred to in the previous paragraph is that Ms Cousins gave evidence that she had email correspondence “with both Glyn and Ian Thompson around the transfer of those to Far North Queensland.” [5] Those emails were not in evidence and there was no evidence about the content of them other than what I have recorded. Assuming that there was such correspondence, the highest inference that can be drawn is that Mr Thompson was aware of the transfer. It could, at a stretch, be inferred that he agreed with it. To suggest that there were also conversations about it and that those conversations brought the transfer within the agreed “plan of attack” goes beyond inference and into speculation. The result is that there is nothing to support the inference that there was an agreement that these transactions would be made in order to conceal anything from the auditor.

4. Finally, there is nothing beyond mere speculation to connect Mr Farrugia with any of this. There is no evidence that either he or Mr Thompson had any role in deciding what did or did not go to the auditor. The only evidence is that Mr Raines had that role (with assistance from his offsider Mr Lechowski and, occasionally, Ms Cousins). There is no evidence that Mr Farrugia, or Mr Thompson knew about the transfer or the fact that Ms Cousins provided a spreadsheet to Mr Raines to give to the auditor, let alone the contents of any such spreadsheet. The Crown’s case in this respect is simply that, given Mr Thompson’s role and that of Mr Farrugia, there “must have been” discussions about this issue. There appears to be no logical basis for that submission. The missing element is any involvement whatsoever in the process of the audit.

4. Exhibit 1.81.

5. Transcript D7.244.37-38.

February 2011 concealment

48. This aspect of count 3 can be dealt with briefly. In short, it had been decided by Group that $1.45m of the WA Issue was not to be written off in the 2011 financial year. Ms Cousins gave instructions that this amount be transferred from the suspense account (where all the WA Issues had been parked) to various other balance sheet accounts for the WA business. On 31 January 2011 Mr Raines emailed Ms Cousins a spreadsheet itemising WA balance sheet issues that remained in the suspense account as at that time. It contained no mention of the $1.45m that had been transferred on the instructions of Ms Cousins. On 8 February 2011 he forwarded the same spreadsheet to the auditor.

49. The following day, Mr Raines emailed Ms Cousins, copying Mr Thompson, saying that they were at the “hard end of the audit” and that the “spotlight was glued to WA”. He said that he had had discussions with the auditor about the “$3m issue” and was trying hard to move the auditor away from “doing a deep dive on it. So can you help with some data to deflect them.”

50. The Crown argued that it was open to conclude that Mr Raines, Ms Cousins and Mr Thompson knew that the true value of the WA Issues was $4.5 million and it could be inferred that Mr Thompson knew that the $3 million did not include the second amount of $1.45m. The Crown adds that, given that both accused knew that the $1.45m had not been written off and were both responsible for month end and half yearly financial results for WA, they “must have discussed with Mr Raines or Ms Cousins how the additional $1.45 million was to pass the upcoming audit.”

51. The missing step in the Crown’s case is the lack of evidence connecting the accused with the auditor. There is no evidence, or available inference, that either accused had any role in deciding what did and what did not go to the auditor. The suggestion that there “must have been discussions” does not logically arise from any of the matters relied on by the Crown. The fact that Mr Thompson was told about a discussion concerning the “$3m issue” does not logically support any prior or ongoing involvement of his in the concealment of the $1.45m. In my view, the evidence here goes all one way: Ms Cousins could recall no discussion about the $1.45m, Mr Raines said the decision to conceal it was made by him, both said that they were the ones that dealt with the auditor (Ms Cousins only indirectly). While all of that may be rejected, there is nothing to fill the gap and to place the accused in any position from which it may be inferred that they were involved in any concealment from the auditor.

52. For those reasons, I am not satisfied that there is any evidence on which the jury could convict either Mr Thompson or Mr Farrugia in respect of count 3.

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Endnotes

Decision last updated: 18 July 2019