Thomas Douglas Watkins v The Queen

[2012] HCASL 28

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

1. 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. 

2. 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.

3. 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". 

4. 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 the applicant on many occasions as a means of placing bets on horse races and other sporting fixtures.  Mr Frost and Mr McAndrew denied these allegations in the prosecution case when the defence put them in cross-examination. 

5. The Court of Criminal Appeal found the prosecution case to be "overwhelmingly strong" (Watkins v R [2008] NSWCCA 88 at [68]). Before that Court, the applicant tendered "fresh evidence" from his sister supporting the applicant's allegations. The evidence was to the effect that on different occasions one of the company's secretaries (Mr Wood) told her that the Frost and McAndrew families had improperly withdrawn large sums of money from the company, or that the funds had been used to gain a tax advantage for the Frost family. Messrs Wood and Frost denied this. The sister had a criminal record replete with dishonesty offences. The Court of Criminal Appeal found her "fresh evidence" implausible and incapable of belief, and found the prosecution evidence on the crucial evidence of when the name "T Watkins" was written on the cheques to be "overwhelming" (at [107]).

6. The applicant's Written Case identifies no point of law on which an appeal might succeed.  Instead it identifies many points of evidence in relation to which it is said that Mr Frost and others committed perjury.  It also criticises the trial judge (Berman DCJ) for not exercising "due diligence and total objectivity".  And it criticises the competence of his legal representatives at trial and on appeal. 

7. The submissions do not identify any reason for doubting the competence of the trial judge or the applicant's legal representatives.  They identify no error in the Court of Criminal Appeal's reasoning.

8. The application is dismissed.

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

   J.D. Heydon  V.M. Bell
   29 February 2012