The State of Western Australia v Atherley - [2015] WADC 45

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- ATHERLEY [2015] WADC 45

CORAM: STONE DCJ

HEARD: 5-6, 9-13, 16-17 & 20 MARCH 2015

DELIVERED : 29 APRIL 2015

FILE NO/S: IND 365 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ROBERT CHARLES ATHERLEY

Catchwords:

Criminal law and procedure - Trial by judge alone - Indictment alleging stealing by general deficiency - Indictment alleging perjury - Honest claim of right - Prosecution case dependent upon inferences

Legislation:

Criminal Procedure Act 2004 (WA) s 120(2), sch 1 cl 6(12), cl 8(3)
Evidence Act 1906 (WA) s 32, s 44
Guardianship and Administration Act 1990 (WA) s 51, s 107(1)
Criminal Code (WA) s 1, s 22, s 371

Result:

Verdict of guilty on count 1

Verdict of guilty on count 2
Verdict of guilty on count 3

Representation:

Counsel:

The State of Western Australia : Mr J C Whalley & Ms S J Bowman
Accused: Mr S W O'Sullivan

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Chris Biris Barrister & Solicitor

Case(s) referred to in judgment(s):

Caratti v The Queen [1984] WAR 313
Kingdon v The State of Western Australia [2012] WASCA 74
R v Mews [1989] WAR 38

STONE DCJ:

Introduction

In this matter I have conducted a trial of the accused, Mr Robert Charles Atherley by judge alone on an indictment alleging that:
(1)Between 28 February 2002 and 16 August 2006 at Perth and elsewhere Robert Charles Atherley stole $1,369,275 the property of Mary Taylor Eva, and being the amount of a general deficiency.
(2)Between 17 August 2006 and 17 July 2010 at Perth and elsewhere Robert Charles Atherley stole $318,110 the property of Robert Charles Atherley as executor of the Estate of Mary Taylor Eva, and being the amount of a general deficiency.
(3)Between 2 December 2009 and 5 February 2010 at Perth Robert Charles Atherley, in a judicial proceeding, namely Bassert v Atherley, in the Supreme Court of Western Australia, having been duly sworn, knowingly gave false testimony to the effect that he performed accounting and financial planning work that he did not so perform.
And that the false testimony was material to a question then depending in the judicial proceeding.

An overview of the prosecution case

Mr Atherley was the accountant for Ms Mary Taylor Eva and the principal of an accounting practice in Osborne Park called Atherley's (Atherley's Accounting).
Mr Atherley held an enduring power of attorney (EPA) for Ms Eva. When she suffered from dementia and she was no longer able to manage her affairs he became her legal guardian. He arranged live-in carers to enable her to stay in her own home in Pingelly. He paid the carers' wages and superannuation from her account. Ms Eva died on 17 August 2006 at the age of 88 years.
The State alleges Mr Atherley took advantage of Ms Eva's inability to manage and monitor her own affairs by embarking on a deliberate, concerted and persistent series of stealing over a period of some eight years. During that time he stole in excess of $1.68 million from her account both before and after her death by transferring the money by cheque or internet transfer from her accounts into his business account or his personal accounts or his wife's account.
The State's case is, that at the time of the events the subject matter of count 1, Mr Atherley had control over Ms Eva's account, he had a duty to account and that within the period charged, he was unable to account for part of the money in her account. By the time she died he had allegedly stolen in excess of $1.3 million from her.
When Ms Eva died Mr Atherley was her executor under her Will.
The State's case is, that at the time of the events the subject matter of count 2, Mr Atherley had control over Ms Eva's estate account, he had a duty to account and that within the period charged, he was unable to account for part of the money in her estate account. After her death he continued transferring money from her account to his accounts and allegedly stole $318,000 from her estate.
When Mr Atherley was granted probate he did not inform any of the beneficiaries of Ms Eva's Will of their status as beneficiaries and he allegedly continued to steal money from her account. It was not until seven months later in 2007 that Mr Atherley informed the beneficiaries of their status under Ms Eva's Will.
In 2008 the beneficiaries commenced Supreme Court proceedings to challenge payments made by Mr Atherley from Ms Eva's estate in his capacity as executor.
The State contends that around that time Mr Atherley realised that the payments he made to his accounts from Ms Eva's account following her death were going to be scrutinised. He needed to justify the hundreds of thousands of dollars he had taken out of the account as part of the systematic plundering that had commenced prior to her death and continued after it.
At the time the accounting records at Atherley's Accounting were maintained on an accounting system called HandiSoft. The HandiSoft system enabled work in progress (WIP) to be recorded on a client's account.
The State contends that following his realisation that his withdrawals from Ms Eva's account were going to be scrutinised, Mr Atherley accessed the HandiSoft accounting computer records and made false entries about accounting work he had purportedly done for Ms Eva.
The State alleges a significant number of these false entries related to a 'portfolio reconstruction' which Mr Atherley claimed to have performed in relation to Ms Eva's share portfolio. The portfolio reconstruction was ostensibly an activity in which he claimed to have analysed each of the 49 companies in which Ms Eva held shares and performed various calculations to check the accuracy of the 'cost base' of shares that had previously been used for Ms Eva's Capital Gains Tax (CGT) assessments.
Mr Atherley eventually ceased making false retrospective WIP entries in HandiSoft computer records and he used the HandiSoft system to manually generate a series of invoices which totaled approximately the amount he had taken from Ms Eva's account since her death.
The State claims Mr Atherley had access to the bank statements of the account which showed all the money he had transferred from Ms Eva's account to his own accounts and for each transfer of funds he had stolen from her account he created a false invoice which was as close as he could get to the amount of that transfer. However, he could not get it to the exact amount because there was a Goods and Services Tax (GST) component in the calculation so the invoices were all slightly over or slightly under the amount he had actually transferred.
In 2009 and 2010 Mr Atherley gave evidence in the Supreme Court proceedings by affidavit and oral testimony.
Mr Atherley provided by affidavit a copy of all the invoices and a WIP Spreadsheet, Annexure 'RCA 9' (WIP Spreadsheet 'RCA 9').
Mr Atherley claimed in his oral testimony that the WIP Spreadsheet 'RCA 9' was a document he had compiled from his computerised accounting records held at his office. He claimed he had done that to make the records easier to understand. He asserted that the WIP Spreadsheet 'RCA 9' was a copy of the computerised accounting records and represented the work he had done on behalf of Ms Eva and her estate including the portfolio reconstruction.
The WIP Spreadsheet 'RCA 9' included a brief description of the work performed, a notation of the staff member who the work had been done by, that person's hourly rate and the amount of WIP that that work represented. It also showed the issuing of the invoices. A substantial part of the work recorded on the WIP Spreadsheet 'RCA 9' consisted of the portfolio reconstruction Mr Atherley claimed to have done with minimal assistance from other staff members.
The State alleges that Mr Atherley did not do that portfolio reconstruction. There had been a portfolio reconstruction done but it had not taken over 700 hours as claimed by him in the Supreme Court proceedings; it had taken at most 60 ‑ 80 hours. It had not been done mostly by him as he claimed in those proceedings; it had been done by Mr Donald McLaren. It had not been done between March and August 2006 as claimed by Mr Atherley in those proceedings; it had been fully completed by October 2005.
The State contends Mr Atherley was desperately looking for some professional services he could point to which he could use to justify the hundreds of thousands of dollars he had stolen from Ms Eva's accounts after her death. He remembered the portfolio reconstruction that Mr McLaren had done in 2005 and he picked that, exaggerated what it involved, pretended he had done it and created false documentation including fabricated invoices and the WIP Spreadsheet 'RCA 9' in an attempt to support his claims.
Following the Supreme Court proceedings the matter was referred to police who commenced an investigation. The investigation encompassed not only the money Mr Atherley had transferred from Ms Eva's account after her death but also looked into the money that he had transferred to his own accounts prior to her death.

The defence case

Mr Atherley was involved with two businesses which operated separately; the accounting practice and the financial planning business. Whilst the financial planning business operated separately and billed separately, implications of the financial planning actively manifested themselves in the accountancy practice. Financial planning for Ms Eva had consequences to be dealt with in the accountancy practice.
At the time of the events the subject matter of count 1, Mr Atherley was Ms Eva's accountant. He held an EPA for her and later he was her appointed guardian. He had legal access to her account as her accountant, the holder of an EPA for her and later as her guardian. He could legally access the account to deduct amounts in payment of accountancy fees and other amounts in his capacities as her EPA and guardian. Whatever he did for Ms Eva as her accountant, EPA or guardian he charged at his accountancy rate. When lodging her tax returns the amount of the deduction for preparing and lodging the tax return was for accountancy work. However, if he was dealing with her disability matters or a doctor for her medication these items would not be on the tax return as deductions because they were personal expenses.
Following her death, at the time of the events the subject matter of count 2, Mr Atherley was the executor of Ms Eva's estate pursuant to her Will and the estate's accountant. As both the executor of the Will and accountant for the estate he could legally access the estate account to deduct amounts in payment of accountancy fees and other amounts as executor. Whatever he did for her estate as its accountant or executor he charged at his accountancy rate.
The defence submits the sole issue in each of the stealing charges was whether the State could prove Mr Atherley stole the particularised amount or a portion of it. The defence contends the question in issue in each of those charges was whether the State could prove when Mr Atherley removed the amounts alleged from Ms Eva's accounts he did not have an entitlement to do so. The defence conceded that otherwise the legal elements of the offence of stealing in each case were not an issue.
The defence point out that whilst the State cannot prove an offence in respect of any one of the takings from Ms Eva's account, Mr Atherley admitted all the takings from the account. The defence also point out that the State's circumstantial case relies upon, in large part, an alleged lack of documentation of Mr Atherley's admitted takings from the account.
Mr Atherley conceded, in relation to the perjury charge in count 3, that his testimony as particularised in the global statement of the charge and the State's opening address was material to the Supreme Court proceedings for the passing of accounts relating to his administration of the estate as executor. The defence contends the only issue was whether the State could prove the particularised testimony was false. The defence point out there is a distinction between accounting work and financial planning work. The defence submits Mr Atherley never maintained he performed financial planning. Mr McLaren did the financial planning as a discrete exercise. Mr Atherley did not do financial planning. Mr Atherley did the portfolio reconstruction as accounting work.
Whilst the State alleges an absence of invoicing and documentary support for these transactions, the defence submits it was crucial to the defence case that there was recognition that entitlement to take the money does not depend upon the existence or absence of documentation.
The defence contends there was material missing from the HandiSoft computer records. What was there when Mr Atherley had access to the HandiSoft computer records for the Supreme Court proceedings was not there now.

The general principles of law that apply

Section 120(2) of the Criminal Procedure Act 2004 (WA) (CPA) requires me to state the principles of law that I apply and the findings of fact on which I rely in coming to my verdict.

More than one charge

There are three offences with which Mr Atherley has been charged in this trial. I am required to look at each charge separately and make a decision on them separately. When I am looking at one charge I must consider only the evidence that is relevant to that charge. My verdicts do not have to be the same on each charge. If I find Mr Atherley guilty of one charge it does not follow that he is guilty of another charge. Having considered all the evidence I may find Mr Atherley guilty of all charges, or I may find him not guilty of all charges or I may find him guilty of some and not guilty of others.

Burden and onus of proof

The burden of proving each of the charges is on the State. The standard to which it must do so is beyond reasonable doubt. I cannot deliver a verdict of guilty unless the State has satisfied me beyond reasonable doubt that Mr Atherley is guilty of the charges it has presented. Beyond reasonable doubt is a high standard. It is the highest standard that is known to the law. If I have a reasonable doubt as to whether Mr Atherley is guilty of these charges then it is my duty to acquit.

Presumption of innocence

It is important for me to remember when I am considering the evidence that Mr Atherley is presumed to be innocent of the charges against him. I cannot return a verdict of guilty unless I am satisfied beyond reasonable doubt that evidence has been produced in this trial which proves that Mr Atherley is guilty of the offences charged. If I have a reasonable doubt as to whether he is guilty or not guilty then it is my duty to find him not guilty.

Accused did not give evidence

Mr Atherley did not give evidence in this case. It is his right not to do so. No adverse inference can or should be drawn against him from exercising that right. The fact that he did not give evidence proves nothing, one way or the other.

Prejudice and sympathy

This matter concerns an elderly lady from whom it is alleged very large amounts of money were taken by her accountant. I must bring an impartial and unprejudiced mind to the resolution of the questions involved in the trial. I must determine the trial on the evidence. I should assess that evidence dispassionately. I should not decide the case on prejudice or on sympathy.

Inferences

When I consider the evidence I should not guess or speculate or look for theories not supported by the evidence.
However, I may draw inferences from facts.
As this is a criminal trial, before I draw an inference against Mr Atherley, I must be satisfied that it is the only inference that is reasonably available.
In relation to the facts from which the State asks me to draw an inference I do not consider those facts in isolation, but I consider them as a whole to determine whether the inference is the only inference reasonably available.

Forensic disadvantage

When I consider the evidence I should bear in mind the passage of time between the occurrences of the alleged events the subject matter of counts 1, 2 and 3 and Mr Atherley's police interviews in December 2012 and January 2013.
By reason of that long delay the evidence concerning what was on Atherley's Accounting's computer system and the AFPS computer system cannot be adequately tested. There was no police investigation at the time. There was no examination of the computer systems around the time of alleged offences. The police did not have access to the original source material from the computer systems. The long delay places Mr Atherley at a forensic disadvantage during the police interviews. There was more opportunity for error because of memory loss or being unable to recall with precision what was happening or what was done at a particular point in time. He did not have access to the computer records during the police interviews. The passage of time also has an impact upon the defence witnesses' ability to recall with precision what was happening or what was done at a particular point in time. The passage of time also has an impact on the ability of the defence to bring forward matters of defence and to test the evidence concerning what was on the computers. As a consequence the defence cannot adequately test the evidence of some of the prosecution witnesses about the occurrences of the alleged events the subject matter of counts 1, 2 and 3 and I should scrutinise their evidence with care.

Good character

There was no evidence of Mr Atherley's good character so I have given that matter no further consideration.

Elements of the offences

The charges in counts 1 and 2 are allegations of stealing property totalling the value specified in the charges in each count over a period as a general deficiency.
Prior to the trial there was a directions hearing concerning the particularisation of the charge in count 1 as a general deficiency. Davis DCJ gave a ruling on the law concerning the offence of stealing the amount of a general deficiency and what the State must prove to establish a general deficiency. I agree with that ruling and adopt what her Honour held in regard to the law with respect to general deficiency as follows.
Clause 8(3) of sch 1 of the CPA provides:
If it is alleged that on more than one occasion over a period a person stole property, the person may be charged with one offence of stealing all of the property as a general deficiency comprised of various quantities of various property stolen over the period.
A charge of stealing the amount of a general deficiency is a charge of stealing the amount of a shortfall: Caratti v The Queen [1984] WAR 313, R v Mews [1989] WAR 38.
A general deficiency is a device by which the prosecution is entitled to rope in a number of individual conversions under one total as having been stolen between two dates: Caratti v The Queen, 317 (Burt CJ), 324 (Brinsden J).
To establish a general deficiency in the sense of an amount of money in respect of which the accused person is called upon to account, the prosecution must prove what amount of money the accused person had under his control with that duty and that on a date within the period charged he was unable to account for the total or some part of it: Caratti v The Queen, 317 – 318 (Burt CJ), R v Mews, 40, 44 (Brinsden J).
There must be a date on which the account had to take place. The accounting day can be the date on which the deficiency was discovered. The date when the accused person is called upon to account, whether by an employer, police or some other person in authority, is a sufficient accounting date: R v Mews, 41, 42 (Brinsden J).
As to how the prosecution can prove a general deficiency case, Burt CJ explained in Caratti v The Queen, 318:
In the proof of that case the Crown may prove that the shortfall consists of 'any number of specific sums … the taking or conversion of which extended over any space of time' or that the stealing or conversion of specific sums of money within the charged time span is within the shortfall although not equal to it.

In R v Mews, 45 (Brinsden J) stated:
… the case could have been left to the jury as a general deficiency case being that on day or dates unknown to the Crown, but between the two specified dates, the respondent had fraudulently converted the various items of property to his own use and a verdict of guilty could have been brought in if the jury was satisfied that on a day or dates he had stolen one or more of the articles. And this would be so even though the Crown may not have been able to prove whether there was one or more distinct takings or conversions over the period alleged.
Section 371 of the Criminal Code (WA) (the Code) relevantly provides:
(1)A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
(2)A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say —
(a)An intent to permanently deprive the owner of the thing or property of it or any part of it;
…
(f)In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.
(3)The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.
(4)In the case of conversion, it is immaterial whether the property converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession, control or management of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.
…
(6)The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
(7)In this section, property includes any description of real and personal property, money, debts, bank credits, and legacies and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods and also includes not only such property as has been originally in the possession or in the control of any person but also any property in which or for which it has been converted or exchanged and anything acquired by the conversion or exchange, whether immediately or otherwise.
The State alleges in count 1 that between the dates specified and at the places specified Mr Atherley transferred via 165 transfers a total of $1,369,275 from Ms Eva's accounts to his own accounts with the intention of permanently depriving Ms Eva of those funds and being the amount of a general deficiency.
At the relevant time, the funds in Ms Eva's bank accounts were the bank credits in her favour or choses in action created by the bank deposits and as such they were her property: Kingdon v The State of Western Australia [2012] WASCA 74 [21] (Martin CJ). In transacting the withdrawals from the various bank credits and depositing those funds into his own bank accounts, Mr Atherley allegedly fraudulently converted the bank credits to his own use. Accordingly, the transferring of the funds is properly characterised as a conversion rather than a taking and enables the State to put its case on the basis that Mr Atherley allegedly stole the bank credits having a certain value, in which Ms Eva had a beneficial interest, by fraudulently converting them to his own use and not for, or on behalf of, Ms Eva: Kingdon v The State of Western Australia [19], [22], [43] (Martin CJ).
To prove the charge in count 1, the State must prove the following elements beyond reasonable doubt.
The first element is identity. The State must prove that Mr Atherley did the things that the State says constitute this offence.
This first element is not in issue.
The second element the State must prove is that Mr Atherley stole property to the value of $1,369,275 being the amount of a general deficiency particularised in the indictment or a lesser amount of which I am satisfied being the amount of a general deficiency. If that is a lesser amount then this element will be proved if I am satisfied that the amount of the general deficiency was at least that amount.
This second element is in issue.
For the State to prove that what Mr Atherley stole was the amount of a general deficiency, the State must prove:
(a)the amount of the property that Mr Atherley had under his control in that period; and
(b)within that period he had a duty to account to Ms Eva for that amount of the property; and
(c)he failed to account for that amount either wholly or in part.
It was not in dispute that, at the relevant time, Mr Atherley owed Ms Eva a fiduciary duty as her accountant, legal guardian and holder of an EPA for her.
Section 51 of the Guardianship and Administration Act 1990 (WA) (G&AA) provides that the guardian is to act in the best interests of the represented person.
Section 107(1) (b) of the G&AA sets out the obligations of the donee of an EPA to 'keep and preserve accurate records and accounts of all dealings and transactions made under the power.'
Section 44 of the Evidence Act 1906 (WA) (EA) provides:
(1)On the trial of a person charged with stealing money, an entry in any book of account shown to be kept by the accused person, or kept in, under, or subject to his charge or supervision, purporting to be an entry of the receipt of any money, shall be evidence that the money so purporting to have been received was so received by him.
(2)On the trial of a person charged with any such offence, it shall not be necessary to prove the stealing by the accused person of any specific sum of money, if, on examination of the books of account or entries kept or made by him, or kept or made in, under, or subject to his charge or supervision, or by any other evidence, there is proof of a general deficiency and if the jury are satisfied that the accused person stole the deficient money or any part of it.
The definition of 'money' in s 1 of the Code is inclusive, not exclusive. A charge of stealing money includes the proprietary interests arising from the deposit of funds at a bank: Kingdon v The State of Western Australia [34], [35], [39] (Martin CJ).
The third element the State must prove is that the property of a certain value for which Mr Atherley failed to account belonged to Mary Taylor Eva.
This third element is not in issue.
The State's case on the charge in count 1 is that Mr Atherley stole the amount of a general deficiency, a shortfall. It was a shortfall in the money that Mr Atherley had under his control with a duty to account for it to Ms Eva during the period particularised in the charge. Mr Atherley was called to account for it by the police and he failed to do so. The sum particularised in the charge represents an amount that Mr Atherley was unable to account for having been called upon to do so.
The State accepts that it is unable to prove that any single given transfer among the 165 impugned transfers was, in whole or in part, money to which Mr Atherley was not entitled. Put another way, the State accepts that it cannot prove that any specific individual transfer among the 165 impugned transfers was fraudulent.
The State acknowledges that amongst the HandiSoft accounting records Mr Atherley had entered some WIP entries reflecting work that he had ostensibly done on behalf of Ms Eva. The State submits these entries were random and irregular, they do not tie in with any given invoice but nonetheless they do exist and total $60,204.
As the State cannot exclude the possibility that Mr Atherley carried out some of the work that was recorded in the HandiSoft entries, the State accept it cannot prove that any single transfer or part of a transfer was money to which Mr Atherley was not entitled and rely upon s 44(2) of the EA to prove the stealing by general deficiency.
The defence case on the charge in count 1 is that Mr Atherley was entitled to transfer the money. Accordingly, the State must prove beyond reasonable doubt that Mr Atherley did not have an honest claim of right to do so: s 22 of the Code.
The law provides that a person is not criminally responsible for an act done by that person with respect to any property in the exercise of an honest claim of right and without intention to defraud.
Like all matters the onus of proof on this matter is on the State. Before I could convict Mr Atherley, I must be satisfied beyond reasonable doubt that he did not have an honest claim of right and that he did have an intention to defraud.
A claim of right is honest if a person honestly believed that the person was entitled to do what they did, even if they were wrong, and even if their belief was not based on reasonable grounds.
There are in theory three possible verdicts on the charge in count 1.
A possible verdict is that I could find Mr Atherley guilty as charged. Another possible verdict is that I could find Mr Atherley guilty of stealing a lesser sum and being the amount of a general deficiency. Another possible verdict is that I could find Mr Atherley not guilty.
The charge in count 2 is in similar terms to the charge in count 1 and the elements that the State must prove to prove the charge in count 1 are the elements that the State must prove to prove the charge in count 2.
The State alleges in count 2 that between the dates specified and at the places specified Mr Atherley transferred $318,110 from Ms Eva's account to his own accounts with the intention of permanently depriving Ms Eva's estate of those funds and being the amount of a general deficiency.
It was not in dispute that when Ms Eva died her property vested in the Public Trustee until probate was granted but once granted that grant of probate had retrospective effect back to the date of death. Accordingly, money that Mr Atherley allegedly stole between the date of Ms Eva's death and the granting of probate can be pleaded as a stealing from Mr Atherley as executor.
The State alleges that following Ms Eva's death Mr Atherley transferred $637,429 from Ms Eva's account into accounts operated by him. The amount of $320,983.75 went directly into his own ANZ account. The amount of $276,841 went into his business account which he used as a personal bank account. The amount of $37,650 went to the financial planning business account.
The State alleges that in an attempt to justify these transfers Mr Atherley claimed in the Supreme Court proceedings and subsequent police interviews that $318,110 was for a portfolio reconstruction that he had completed.
The State alleges that Mr Atherley did not do that portfolio reconstruction. Further, if he had a legitimate reason for transferring the money from Ms Eva's account to his own, then he would have had no reason to lie about having completed the portfolio reconstruction.
The State submits the only reasonable inference was that Mr Atherley fraudulently converted to his own use at least that amount of the estate money to his own use.
The defence case on the charge in count 2 is that Mr Atherley was entitled to transfer the money. Accordingly, the State must prove beyond reasonable doubt that Mr Atherley did not have an honest claim of right to do so: s 22 of the Code.
The charge in count 3 is an allegation of perjury.
Clause 6(12) of sch 1 of the CPA provides:
In a charge that alleges an offence involving the giving of false evidence, false information or a false statement (whether those words or others are used) —
(a)it is sufficient to allege the effect of the evidence, information or statement, or as much of the effect as is material, without alleging the actual evidence, information or statement given; and
(b)the charge may allege that in the evidence, information or statement the accused said 2 or more things that conflict irreconcilably, without specifying which of them is false.
To prove the charge in count 3, the State must prove the following elements beyond reasonable doubt.
The first element is identity. The State must prove that Mr Atherley did the things that the State says constitute this offence.
This first element is not in issue.
The second element the State must prove is that Mr Atherley gave sworn testimony in a judicial proceeding.
Relevantly, the term judicial proceeding includes any proceeding had or taken in or before any court in which evidence may be taken on oath.
This second element is not in issue. Mr Atherley accepts he gave testimony in the form of affidavits on oath and oral evidence on affirmation in a judicial proceeding, namely Bassert v Atherley in the Supreme Court of Western Australia.
The third element the State must prove is that Mr Atherley made the statements in his testimony deliberately and not inadvertently or by mistake or at cross purposes with the person questioning him.
This third element is not in issue. Mr Atherley accepts he intentionally gave the statements in his affidavit and oral evidence as particularised by the State in its opening address to the effect that he performed accounting and financial planning work, namely the portfolio reconstruction referred to in count 2.
The statements in the affidavits and oral evidence upon which the State relies were particularised by the State in its opening address as follows.
(1)paragraph 3 of Mr Atherley's affidavit sworn 5 May 2009 together with 'Annexure RCA9'. Paragraph 3 states:
[A]ttached to this affidavit and marked 'RCA9'is an amended spreadsheet of the work in progress (WIP) in connection with services provided prior to the Testatrix's death and to the Estate (WIP Spreadsheet). This spreadsheet indicates whether the WIP was incurred for accounting or for financial planning. This spreadsheet is true to the best of my knowledge, information and belief.
(2)the oral evidence at SCT 108:
And you spent yourself something like 700 hours you say on that? 780 hours?---Yes. On that yourself?---Yes.
(3)the oral evidence at SCT 341 in the context of other people helping him with the portfolio reconstruction:
All right. So they assisted you to what extent?---Minimal. Minimal, so basically the work was carried out by you?---Yes.
(4)the oral evidence at SCT 342 in the context of the portfolio reconstruction:
Who physically in this office was going to do this work?---Me. Yes; you did it?---I did it.
The fourth element the State must prove is that the testimony is false.
The State alleges Mr Atherley gave false testimony in his affidavit and oral evidence to the effect that he performed accounting and financial planning work that he did not so perform, namely the portfolio reconstruction referred to in count 2 and as particularised by the State in its opening address.
This fourth element is in issue.
The fifth element the State must prove is that the false statements in his affidavit and oral evidence was material to a question then depending in the judicial proceeding.
The State alleges that Mr Atherley's false evidence to the effect that he performed accounting and financial planning work that he did not so perform was material to a question then pending in the judicial proceeding.
This fifth element is not in issue. The defence accept that Mr Atherley's statements in his affidavit and oral evidence as particularised by the State in its opening address were material to a question then pending in the proceeding.
At law evidence is material if in a real sense it is likely to affect the decision upon a question then depending in the proceedings.
Notwithstanding the defence concession, I have determined as a matter of law, that Mr Atherley's statements in his affidavit and oral testimony as particularised by the State in its opening address related to a matter which was itself material to a question then pending in the proceeding. The Supreme Court proceedings concerned the passing of Mr Atherley's accounts as the executor of Ms Eva's estate. The amount of Mr Atherley's fees for the accounting and financial planning work involved in the portfolio reconstruction and whether he performed that work were of such significance to the passing of his accounts as the executor that they were capable of affecting the decision of the court.
The sixth element the State must prove is that at the time he gave the false testimony, Mr Atherley knew the testimony to be false or he did not believe it to be true.
For a person to commit perjury there has to be a deliberate lie. In other words that person must give the evidence knowing it to be false.
The State alleges that at the time he gave the statements in his affidavit and oral testimony Mr Atherley knew the statements in his affidavit and oral testimony to the effect that he performed accounting and financial planning work to be false or he did not believe them to be true.
This sixth element is not in issue in the sense that the defence accept a finding that Mr Atherley did not do the portfolio reconstruction would lead to a finding that he knew his statements in his affidavit and oral testimony were false.

Knowledge or belief and intention

The State alleges in the charges in counts 1 and 2 that at the time he transferred the money from Ms Eva's account or her estate account to his accounts Mr Atherley did not honestly believe that he was entitled to do so and he had an intention to defraud. The State alleges in the charge in count 3 that at the time he gave the statements in his affidavit and oral testimony Mr Atherley knew the statements in his affidavit and testimony to the effect that he performed accounting and financial planning work to be false or he did not believe them to be true.
A person's knowledge or belief or intention is a state of mind. Because it is a state of mind, it can never be directly proved as a fact, it can only be inferred from other facts which are proved. I should determine Mr Atherley's knowledge or belief or intention from what he said and did in all the circumstances in which he said or did those things.

Background circumstances that are largely common ground

From 1985 until 2000 Mr Atherley was the proprietor of an accounting business which he operated from his home.
In 1989 or 1990 Mr Atherley commenced as Ms Eva's accountant. He remained her accountant until her death. Ms Eva was also known as May Taylor Eva.
On 29 November 1996 Ms Eva appointed Mr Atherley as her EPA pursuant to the G&AA. Mr Atherley accepted the appointment.
In 1999 Mr Atherley was appointed as Ms Eva's guardian pursuant to the G&AA as a result of the decline in Ms Eva's mental health.
From January 2000 Mr Atherley arranged live-in carers for Ms Eva and he used Ms Eva's funds to pay their wages and superannuation. Ms Eva's bills were redirected to Mr Atherley's business address and he arranged payment of those bills from Ms Eva's accounts.
In 2000 Mr Atherley bought an accounting practice in South Perth. He changed the name of the practice to Atherley's Accounting and moved it to Osborne Park. He was at all times the principal of that practice.
In 2000 BT Private Portfolio Management (BT) was engaged by Mr Atherley as the platform provider for Ms Eva's share portfolio.
On 1 March 2002 was the first impugned transaction alleged by the State.
As at 30 September 2003 the value of Ms Eva's portfolio managed by BT was $4,440,000.
In August/September 2004 Mr Atherley together with Mr McLaren established a financial planning business, Atherley's Financial Planning Services (AFPS). Atherley's Accounting and AFPS operated out of the same building but from different office suites and with different staff and computer systems.
On 28 October 2004 was the last invoice issued to Ms Eva on account EVA 0003 prior to her death that was located on HandiSoft.

In April/May 2005 Mr McLaren took over active management of Ms Eva's share portfolio from BT. He was Ms Eva's nominated financial adviser. Around that time he commenced his portfolio reconstruction for the purpose of transferring Ms Eva's share portfolio from BT to Asgard eWrap Investment (Asgard).
In early September 2005 Mr McLaren completed his portfolio reconstruction. He sent Asgard a spreadsheet showing the final results of his portfolio reconstruction together with a form signed by Mr Atherley. On receipt of that spreadsheet Asgard picked up a few errors which Mr McLaren fixed up. Mr McLaren's final revised spreadsheet was returned to Asgard by email dated 5 October 2005.
In October 2005 Asgard commenced as the platform provider for Ms Eva's share portfolio.
On 23 March 2006 Mr Atherley commenced work on his disputed portfolio reconstruction, according to the WIP Spreadsheet 'RCA 9'.
On 29 July 2006 Mr Atherley completed work on his disputed portfolio reconstruction, according to the WIP Spreadsheet 'RCA 9'.
On 14 August 2006 was the final impugned transaction alleged by the State.
On 17 August 2006 Ms Eva died.
On 24 August 2006 Mr Atherley issued the first invoice on account EVA 0003 to Ms Eva after her death that was located on HandiSoft. He commenced transferring funds from her account to his own accounts in payment of his disputed portfolio reconstruction.
On 25 September 2006 Mr Atherley filed an application for a grant of probate.
On 10 October 2006 Mr Atherley was granted probate.
On 28 November 2006 Mr Atherley issued the first invoice to Ms Eva's estate on account ESTA 0027 (that was located on HandiSoft).
Sometime in 2007 AFPS's server for the financial planning computer system crashed according to Mr Atherley's evidence in the Supreme Court proceedings.
In May 2007 Mr Lindsay Eva became aware he was a beneficiary of Ms Eva's estate.
On 14 December 2007 Mr McLaren left AFPS.
In January 2008 the invoicing caught up with the outstanding WIP according to Mr Langridge's graph, exhibit 50.
Sometime in 2008 AFPS's server for the financial planning computer system crashed according to Mr Michael Atherley's evidence.
In July 2008 the solicitors for the beneficiaries raised concerns about the accounting of Ms Eva's estate. The beneficiaries subsequently commenced Supreme Court proceedings to challenge payments made by Mr Atherley from Ms Eva's estate in his capacity as executor.
On 1 August 2008 the Supreme Court issued notice to Mr Atherley to file and pass his accounts in relation to the estate of Ms Eva.
On 3 December 2009 and 3 February 2010 Mr Atherley gave evidence in Bassert v Atherley, PRO 3801 of 2006 before Registrar Boyle during proceedings in the Supreme Court of Western Australia at Perth for the passing of the accounts of Mr Atherley as the executor of Ms Eva's estate. Mr Atherley gave evidence after making an affirmation.
In mid-2011 Abbott & Associates trading as Abbott Solutions (Abbott & Associates) acquired Atherley's Accounting. Mr Atherley and some of his staff were then employed by Abbott & Associates.
Mr Atherley was interviewed by police as part of their investigation. He maintained that all the money he had taken from Ms Eva's accounts was money to which he was legally entitled as a result of professional or guardianship services rendered to her or her estate.

Admitted facts by the defence pursuant to s 32 of the EA

The material admissions of fact made by the defence were as follows.
At various times between 1996 and 2006 Ms Eva was the account holder of the following bank accounts: Challenge Bank cheque account BSB 036 170, account number 35‑0198; Westpac Private Bank cheque account BSB 036 000, account number 50‑3905; St George Bank account BSB 336 095, account number 650076103.
The funds in these bank accounts were the property of Ms Eva.
Transfers from 1999 onwards were effected by Mr Atherley under his EPA and not by Ms Eva. Mr Atherley was the only person with that authority.
At all material times the accounting software used by Mr Atherley to electronically store his accounting records, including WIP records was HandiSoft.
In the years 1994 to 2000 the WIP recorded in the computerised HandiSoft accounting records exactly matched the amount invoiced and transferred from Ms Eva's account.
Schedule 1, exhibit 1 accurately summarises the following evidence relating to bank and HandiSoft records for the period prior to Ms Eva's death: Invoices issued as contained in HandiSoft records including dates, amounts and narrations; amounts of money transferred from Ms Eva's accounts into accounts operated by Mr Atherley; cheque butts obtained by police in the course of the investigation; WIP amounts and narrations as recorded in HandiSoft records.
The amounts Mr Atherley transferred from Ms Eva's accounts to his own accounts were as follows:
•1994 - $1,080 (1 transfer, 1 invoice)
•1995 - $1,125 (1 transfer, 1 invoice)
•1996 – nil
•1997 - $1,000 (1 transfer, 1 invoice)
•1998 - $1,740 (2 transfers, 2 invoices)
•1999 - $7,266.90 (4 transfers, 3 invoices [sic])
•2000 - $4,200 (3 transfers, 3 invoices)
•2001 - $31,715.75 (6 transfers, 6 invoices)
•2002 - $115,056 (19 transfers, 12 invoices)
•2003 - $297,954.90 (33 transfers, 5 invoices)
•2004 - $349,755 (32 transfers, 2 invoices)
•2005 - $521,210 (62 transfers, 0 invoices)
•2006 (to Ms Eva's death on 17 August 2006) - $334,800 (39 transfers, 0 invoices)
Schedule 2, exhibit 2 accurately summarises the following evidence relating to bank records for the period prior to Ms Eva's death: Amount of money transferred; the date of the transfer; the account from which the transfer was made; the account into which the money was deposited.
Money paid into the following accounts was available for the use of Mr Atherley: National Australia Bank, Atherley FPS 086334 – 57736‑9494; National Australia Bank t/a Atherley and Associates – 086006‑490182053; ANZ, Robert Charles Atherley - 016 350 4953 10237; AMEX, Robert Atherley 3760‑399528-81005; AMEX, Robert Atherley 3760-813818‑31003; AMEX, R C Atherley 3760-603624-3007; St George, Atherleys – 552718256; Citibank Visa, Kim Atherley 4564 87164086‑5253; St Georges, Atherleys Financial Planning – 552718624; Rackma Pty Ltd ATF Atherley Trust – 585332051.
Portfolio administration and management fees due to BT and Asgard were deducted by those platform providers directly from Ms Eva's investment cash account.
Mr Atherley completed and lodged annual tax returns for Ms Eva for the financial years ending 30 June 1999 to 30 June 2006 inclusive.
The amounts Mr Atherley claimed on behalf of Ms Eva as a deduction for the cost of preparing her tax returns were as follows:
•1996 - $1,125
•1997 - $4,490
•1998 - $5,720
•1999 - $2,080
•2000 - $2,700
•2001 - $3,500
•2002 - $5,000
•2003 - $5,000
•2004 - $1,100
•2005 - $2,200
•2006 - $2,200
•$2007 – nil
Schedule 3, exhibit 3 accurately summarises the following evidence relating to bank records for the period following Ms Eva's death: amount of money transferred; the date of the transfer; the bank account from which the transfer was made; the account into which the money was deposited.
The transfers in sch 3 were effected by Mr Atherley.
Schedule 4, exhibit 4 accurately summarises the following evidence relating to bank records for the period prior Ms Eva's death: amount of money withdrawn or transferred; the date of the withdrawal/transfer; the entry on the relevant cheque butt where applicable; the payment description.
The transfers in sch 4 from 1 January 2001 onwards were affected by Mr Atherley.
Schedule 5, exhibit 5 accurately summarises the following evidence relating to bank records and other records for the period following Ms Eva's death: amounts of money withdrawn or transferred; the date of the transfer; the bank account from which the transfer was made; the account into which the money was deposited; invoices located on HandiSoft and also produced as exhibits by Mr Atherley in the Supreme Court proceedings.
The transfers in sch 5 were affected by Mr Atherley.
Schedule 6, exhibit 6 accurately reproduces relevant entries in the WIP Spreadsheet 'RCA9' tendered by Mr Atherley in the Supreme Court proceedings: amounts of money withdrawn or transferred; the date of the transfer; the bank account from which the transfer was made; the account into which the money was deposited; invoices located on HandiSoft and also produced as exhibits by Mr Atherley in the Supreme Court proceedings.
Mr Atherley did not file any amended tax returns on behalf of Ms Eva following the reconstruction of her share portfolio and the identification of errors in the BT records.
Mr Atherley was gifted the sum of $250,000 by Ms Eva during her lifetime. He legitimately transferred $250,000 from her account to his own account in instalments pursuant to that gift. These transfers have not been included in the 165 impugned transfers.
Mr Atherley was legitimately entitled to transfer money from Ms Eva's account to pay her ATO liabilities, her carers' wages and superannuation, installation of equipment in her home, utility bills etc. Those payments were made directly to the suppliers from Ms Eva's accounts. The payments of that kind and for those purposes were not included in the 165 impugned transfers. However, it was the defence case that Mr Atherley then billed Ms Eva for having made those arrangements with the suppliers.

The evidence of the material State witnesses

Mr Gary Scher

For the past 15 years Mr Scher was the manager of the support department of the HandiSoft company which sold HandiSoft software to the accounting and taxation profession.
Mr Scher explained how the HandiSoft computer accounting system worked by reference to the HandiSoft accounting records for HandiSoft Account EVA 0003 and HandiSoft Account ESTA 0027 that he located when he searched Atherley's Accounting's HandiSoft records for Ms Eva and her estate as part of the police investigation.
On the 'Report: WIP Ledger Entries By Invoiced - To Clients (with Balance)' for EVA 0003, exhibit 20 there were no invoices after 15 October 2001.
On the 'Report: WIP Ledger Entries By Clients' for EVA 0003, exhibit 21 'if it's got an invoice number, it's been invoiced. If it hasn't got an invoice number it's still WIP to be invoiced.'
On the 'Report: Timesheet Items By Client' for EVA 0003, exhibit 22 all WIP items were entered as a timesheet.
The 'Report: Debtors Ledger Entries By Client' for account EVA 0003, exhibit 23 records invoices that had gone out and receipts that may or may not have been received for the invoices.
The 'Report: Staff Hours Worked (with Time Entries)' for EVA 0003 for staff member Mr Atherley, exhibit 24 records the timesheet entries for that staff member.
The 'Report: Not-Invoiced WIP By Invoiced - To Clients (With Description)' for EVA 0003, exhibit 25 was:
designed for when you're ready to bill your client you obviously want to see what work hasn't been invoiced so you can see what you can bill out to the client at that particular point in time. So this is showing all the WIP items that haven't been billed at this particular point in time for the client.
Mr Scher generated similar reports for ESTA 0027.
The 'Report: Not-Invoiced WIP By Invoiced - To Clients (With Description)' for ESTA 0027, exhibit 31 'indicates that there was no WIP items that hadn't been invoiced to ESTA 0027'.
Mr Scher said exhibits 33, 34, 35 and 36 were all the invoices and receipts he found at the time for EVA 0003 and ESTA 0027.
The screenshots of entries in the 'Deleted Debtors Ledger Window', exhibit 37 reflected the deletion of invoices and receipts for clients.
Mr Scher agreed, under cross-examination, that he looked for but could not locate invoices 2007‑001147, 2007‑001154, 2007‑001161 and 2008‑001169 which meant they never issued or they were deleted out of the system. These invoice numbers were in the screenshots of entries in exhibit 37. The material within the screenshots cannot be deleted 'So all it does is keep a record header in the background, so nothing can be retrieved from that.'
Mr Scher also agreed, under cross-examination, that on exhibits 20 and 21 no WIP was attached to an invoice after 15 October 2001 but there may have been invoices in that period without WIP. He explained that:
Most clients, if [they are] using WIP, [will] carry on using WIP all the time. Those that don't use WIP [will] probably do without WIP. Occasionally, you may get somebody who has a mixed system like this but it would depend on how you want to run your practice.
Mr Scher explained, under cross-examination, that in his experience and for the purposes of the HandiSoft software program all services of an accountant were assumed taxable apart from disbursements. It would be very rare to get rid of the GST feature of the software program although it could be done.

Mr Donald McLaren

Mr McLaren was a qualified financial planner and adviser for 15 ‑ 16 years since 1989.
In late 2007 Mr McLaren retired from AFPS where he had been in business with Mr Atherley since late 2004. He had been the managing director of AFPS which dealt only with financial planning clients. Mr Atherley did not undertake any financial planning within AFPS, although he would refer accounting clients to AFPS who needed financial planning advice. When he left AFPS it was a smooth handover to Mr Atherley.
Mr McLaren explained that Atherley's Accounting was conducted separately from AFPS out of different suites in the same premises. AFPS had its own dedicated computer server to which were linked the AFPS staff desktop computers and notebook computers so they had access to the internet and the Asgard platform. The computer server had a back‑up system as part of the compliance requirement. If AFPS had a problem with the computer or server a commercial company was engaged to fix the problem. He did not recall any occasion when the financial planning computer suffered a serious crash resulting in a significant loss of data.
In April/May 2005 Mr Atherley referred Ms Eva to Mr McLaren for financial planning. He never met Ms Eva. She had:
A BT Portfolio Management Service that had been set up in August 2000 with a significant amount of money ... BT Portfolio Management Services undertook to manage that money … purchase a wide range of direct shares and managed funds and to forward on a quarterly basis reports to Mr Atherley regarding the performance values and at the end of each tax year provide him with a tax report.
BT Private Portfolio Management advisers based in Adelaide had managed the portfolio in the preceding five years. Mr Atherley received regular reports from BT and prepared Ms Eva's tax returns. Mr Atherley said he was referring the portfolio to him because of the high cost of brokerage charged for selling and buying shares by BT and the annual ongoing fees.
Mr McLaren analysed Ms Eva's portfolio and subsequently recommended to Mr Atherley a transfer of Ms Eva's portfolio from BT to Asgard because of the advantages in being able to manage it directly in terms of performance, reduction of the overall costs and provision of more accurate reports through the more advanced Asgard system. Mr Atherley, on behalf of Ms Eva, accepted his offer to provide a statement of advice for $30,000 which would include the work involved in the investigation of the history of share transactions, the preparation and transfer of the large volume of assets to Asgard and ensuring the tax records were accurate, correct and up to date. He explained there was an additional ongoing advice fee of $3,000 per month for the full monthly management of the portfolio. Asgard would then charge its monthly published portfolio platform fee together with any adviser fees that had been agreed to by the client. He prepared the 'Statement of Advice', exhibit 16 and discussed it with Mr Atherley.
Mr McLaren started to prepare the documentation to transfer the entire portfolio from BT to Asgard. He could not do an electronic transfer of assets from one company to the other because the two systems were incompatible. He had to transfer them physically by providing a detailed history of every single asset that was contained within the portfolio:
Every transaction, every dividend that was paid or dividend used to buy new additional units of investment in that particular investment had to be identified and corrected, and to do all that work I started to prepare a spreadsheet, a very detailed spreadsheet with some very complex formulas in it to work out the information I needed to get to a point where I could give Asgard all the standard transfer forms and the spreadsheets and all the data and the tax reports so they could then load that information manually into their system. Once they'd got that information into their system, they would then be able to accurately report going forward on any tax reports that they required or any other investor reports they required.
Mr McLaren found errors in the BT records and information was missing. He contacted BT to resolve the problems but ultimately BT was unable to assist. He reconstructed the entire portfolio from 17 August 2000 to 30 June 2005 on a spreadsheet by going to the share registry records of the 49 companies in which there were listed shares:
I gathered as much information as I could from existing records to identify the timeline of when a share was bought to the next transaction point, whether that was an additional purchase, a sale, a bonus share, a dividend payment. I used a spreadsheet to do this work. It was easier to consolidate all the information and kept adding and adding to it and then revamped the spreadsheet to become more accurate so that it could calculate the individual tax implications for Asgard to be able to have the tax history. I had to consult the share registries of those listed companies and get from them hardcopies of their dividend statements which were missing or not available in the file that I was working with. I also then had to go back and compare what I found in terms of information to what the BT portfolio report identified. And it was trying to find all the pieces of the puzzle and put it all together to say, 'Day one, this share was bought. Day two, dividend reinvestment. Day three,' - or whatever. And it built up all the way through so when you looked at that spreadsheet that I created there were multiple lines of transactions. Each and every one had to be audited and checked because it had to be the complete picture. You couldn't give a half the story. Importantly, [Mr] Atherley was relying on my investigation to be able to go back and revisit the tax returns that he had lodged for [Ms] Eva in preceding years in case there was either an overpayment of tax or an underpayment of tax because of the differences between the tax reports that they issued from BT and what finally came out when the analysis was completed.
The portfolio reconstruction was not completed by Mr McLaren until early September 2005 because of the discovery of additional mistakes that had to be resolved. When he went back to Mr Atherley, it was agreed he could raise additional invoices for the additional work for $1500 to $2000, but not more than $3000. After the portfolio reconstruction was completed in September 2005 he prepared the transfers for Mr Atherley's signature and other documentation for Asgard to accept and control the portfolio.
On 8 September 2005 Mr McLaren emailed Asgard a 10 page spreadsheet of the full tax history of the shares he analysed under the portfolio reconstruction: 'Share Transfer- Tax History', exhibit 46. He gave Mr Atherley another spreadsheet which was the same but subdivided into tax years so Mr Atherley could look at the tax situation. On 14 September 2005 Asgard accepted the portfolio.

Mr Atherley's evidence in the Supreme Court proceedings that the WIP documentation annexed to his affidavits was created by him for the proceedings from the accounting computer records that contained the WIP was implausible. The format of the WIP Spreadsheet 'RCA 9', rather than the original WIP records would not make it easier to understand what work was carried out. As I noted at [383], Mr Atherley agreed that what was before that court was some invoices which were unsupported by WIP records that relate to each invoice; the WIP Spreadsheet 'RCA 9' that he compiled for the purposes of the proceedings; the original WIP documents were not in evidence; and there was no other documentation of any sort whatsoever to support his evidence that the portfolio reconstruction was done.
The only reasonable inference open, on the totality of this evidence, was that Mr Atherley's evidence in the Supreme Court proceedings to the effect that he performed accounting and financial planning work, namely the portfolio reconstruction was not true.
The only reasonable inference open, on the totality of this evidence, was that Mr Atherley's evidence in the following statements in his affidavits and oral evidence was not true:
(a)par 3 of Mr Atherley's affidavit sworn 5 May 2009 together with 'annexure RCA 9'. Paragraph 3 states:
[A]ttached to this affidavit and marked 'RCA9'is an amended spreadsheet of the work in progress (WIP) in connection with services provided prior to the Testatrix's death and to the Estate (WIP Spreadsheet). This spreadsheet indicates whether the WIP was incurred for accounting or for financial planning. This spreadsheet is true to the best of my knowledge, information and belief.
(b)the oral evidence at SCT 108:
And you spent yourself something like 700 hours you say on that? 780 hours?---Yes. On that yourself?---Yes.
(c)the oral evidence at SCT 341 in the context of other people helping him with the portfolio reconstruction:
All right. So they assisted you to what extent?---Minimal. Minimal, so basically the work was carried out by you?---Yes.
(d)the oral evidence at SCT 342 in the context of the portfolio reconstruction:
Who physically in this office was going to do this work?---Me. Yes; you did it?---I did it.
The cost to Ms Eva's estate of Mr Atherley's portfolio reconstruction was $318,110 for 716.5 hours based on the WIP Spreadsheet 'RCA 9' for the period 23 March 2006 to 16 December 2008 that Mr Atherley charged 582.6 hours at a cost of $276,735; Mr McLaren charged 103.4 hours at a cost of $36,190; and Mr Li charged 30.5 hours at a cost of $5,185.
However, I am not satisfied beyond doubt that Mr Li did not do some accounting work to the value of $5,185 on Ms Eva's share portfolio.
I am satisfied beyond reasonable doubt, upon the combined force of the whole of the evidence in [267] ‑ [287] and [328] ‑ [404] but subject to [355], that Mr Atherley stole from Ms Eva's estate account $318,110 less the $5,185 in work done by Mr Li. In other words, the shortfall or general deficiency was $312,925. I am also satisfied beyond reasonable doubt that he did not have an honest claim of right to transfer the money to his accounts from Ms Eva's estate account and that he had an intention to defraud when he did so.
I am also satisfied beyond reasonable doubt, upon the combined force of the whole of the evidence in [267] ‑ [287] and [328] ‑ [404] but subject to [355], that Mr Atherley gave false testimony in his affidavit and oral evidence to the effect that he performed accounting and financial planning work that he did not so perform, namely the portfolio reconstruction.

Cross-admissibility of evidence between counts 1 and 2

In my view the circumstantial evidence of guilt on count 1 was compelling and overwhelming. In reaching that conclusion on count 1, I have not taken into account my finding of fact on count 2 that Mr Atherley stole $312,925 from Ms Eva's estate account. Further, in my view the circumstantial evidence of guilt on count 2 was compelling and overwhelming. In reaching that conclusion on count 2, I have not taken into account my finding of fact on count 1 that Mr Atherley stole $1,309,070.50 from Ms Eva's account.

Conclusions (as a matter of law) and verdict

Count 1

On the facts as found I am satisfied beyond reasonable doubt Mr Atherley stole $1,309,070.50 from Ms Eva's account and being the amount of a general deficiency. I am also satisfied beyond reasonable doubt of all the other elements of the charge in count 1 of stealing by general deficiency. Accordingly, I am satisfied beyond reasonable doubt and have come to the verdict that Mr Atherley is guilty of the charge in count 1.

Count 2

On the facts as found I am satisfied beyond reasonable doubt Mr Atherley stole $312,925 from Ms Eva's estate account and being the amount of a general deficiency. I am also satisfied beyond reasonable doubt of all the other elements of the charge in count 2 of stealing by general deficiency. Accordingly, I am satisfied beyond reasonable doubt and have come to the verdict that Mr Atherley is guilty of the charge in count 2.

Count 3

On the facts as found I am satisfied beyond reasonable doubt that in a judicial proceeding, namely Bassert v Atherley in the Supreme Court of Western Australia, having been duly sworn, Mr Atherley knowingly gave false testimony to the effect that he performed accounting and financial planning work that he did not so perform. And that the false testimony was material to a question then depending in the judicial proceeding. Accordingly, I am satisfied beyond reasonable doubt and have come to the verdict that Mr Atherley is guilty of the charge in count 3.