Thomas Douglas Watkins v The Queen - [2012] HCASL 28

THOMAS DOUGLAS WATKINS
v
THE QUEEN
[2012] HCASL 28
S370/2011

This is an application for special leave to appeal against an order of the New South Wales Court of Criminal Appeal dismissing the applicant's appeal against conviction on 43 counts of doing an act, as an officer of a body corporate, with intent to cheat or defraud the body corporate.
The applicant is no longer in prison. The application was filed on 21 November 2011. The Court of Criminal Appeal's order was made on 29 April 2008. The application is thus more than three years out of time and seeks an order for dispensation from r 41.02.1 of the High Court Rules. The substantive part of the affidavit in support of that application is as follows:
"1.Accidental death of barrister Peter Cullen
2.Unfortunate death of Mr Jeff Shaw QC
3.Divorce during incarceration
4.Pursuit of documents lost by lawyers
5.Ongoing health issues following release including declining vision with (hopefully) final surgery November 8, 2011
6.Following (3) above documents were in diverse locations
7.Although lawyers disagreed with CCA judgment they took many months to decide against further representation at High Court".
The extreme generality of this affidavit makes it an unlikely candidate for reception into the practice books. However, despite its deficiencies, it is desirable to consider the merits of the proposed appeal.
The sole ground in the draft Notice of Appeal is: "Improper actions of Crown witnesses and Crown in addition to defects of judges and lawyers".
The prosecution case was that the applicant was employed as the "financial controller" and secretary of a family run company. He had no authority to sign cheques for the company. The authority lay in the hands of one or other of two directors, Mr McAndrew and Mr Frost. The applicant, as part of his duties, prepared cheques for payment of company accounts which, in the relevant period, consisted of handwritten cheques. The prosecution contended that, by misrepresentation, the applicant induced Mr McAndrew to sign cheques, written by the applicant, on each of which the payee was identified as "Westpac St Mary's". That was subsequently altered by the applicant by inserting his name so that the payee line read: "T Watkins – Westpac St Mary's". The crucial issue at the trial was whether "T Watkins" appeared on the cheques at the time he handed them to Mr McAndrew for signature or was inserted afterwards. Mr McAndrew's evidence was that while his signatures were genuine, the payee line did not include the applicant's name when the cheques were signed. A considerable amount of expert and circumstantial evidence supported the prosecution case. The defence position was that Mr Frost and Mr McAndrew had requested the applicant to make funds of his own available in cash for payment of various accounts (often in very substantial sums), and that the cheques on which the prosecution relied were cheques reimbursing him for those cash payments. The applicant also contended that Mr Frost was a significant but secretive gambler who used…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] HCASL 28
Decision Date

CaseChat Overview and Summary

Thomas Douglas Watkins sought special leave to appeal against his conviction on multiple counts of fraud, arguing that the Court of Criminal Appeal had erred in dismissing his appeal. Watkins, formerly a financial controller and secretary of a family-run company, was found to have altered cheques to include his name as payee, thereby misappropriating company funds. The Court of Criminal Appeal had upheld the conviction, rejecting Watkins' claims of improper conduct by the Crown witnesses and deficiencies in legal representation. The application for special leave to appeal was made more than three years after the Court of Criminal Appeal's decision, necessitating a dispensation from the High Court Rules.

The primary legal issue before the High Court was whether there were grounds for granting special leave to appeal, given the late filing and the absence of a compelling argument that a significant miscarriage of justice had occurred. The applicant's affidavit cited several reasons for the delay, including personal difficulties and lost documents, but these did not justify the delay in seeking special leave. The applicant's argument hinged on the alleged improper conduct of Crown witnesses and the inadequacies of his legal representation, but these did not present a clear legal error that would warrant an appeal. The Court of Criminal Appeal had already thoroughly examined the evidence and found it overwhelmingly supported the prosecution's case.

The High Court held that the application for special leave to appeal was not meritorious. The Court noted that the applicant had failed to demonstrate any significant legal error or miscarriage of justice. The evidence supporting the conviction was robust, and the applicant's criticisms of the trial judge and legal representatives did not point to any procedural or substantive errors. The Court of Criminal Appeal's decision was well-reasoned and based on credible evidence. Therefore, the application for special leave to appeal was dismissed. The High Court ordered the Registrar to prepare the necessary order to formalise this decision.

Orders