Citation: Regina v Thomas Douglas Watkins [2005] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 1 June 2005
Judges: Grove J, Barr J, Howie J
Background
The appellant was a qualified accountant employed as financial administrator at a wholesale timber merchant, Tasman KB Pty Limited. The Crown alleged that on thirty occasions over nearly three years, he altered signed company cheques by inserting his own name as payee in a gap left before the intended payee "Westpac – St Marys", then deposited the cheques into his private account. The total amount involved exceeded $1.9 million.
The appellant did not dispute the mechanics of how the cheques were prepared. His defence was that the arrangement had been authorised by company directors, who told him to consolidate creditor payments through his personal account to save time and bank charges. The directors denied any such arrangement existed, and the Crown's case rested heavily on the credibility contest between the appellant and those witnesses.
The jury convicted the appellant on all thirty counts. He appealed against conviction, and both he and the Crown sought to appeal the resulting sentences.
Legal Issues
- Whether the trial judge erred by admitting tendency or coincidence evidence relating to events from 1983 and 1984 that did not directly concern the charged offences
- Whether that erroneously admitted evidence caused a miscarriage of justice, such that the convictions could not stand
- Whether the proviso under section 6(1) of the Criminal Appeal Act applied, meaning the Court could dismiss the appeal despite the error because no substantial miscarriage of justice had occurred
- Whether the Crown's failure to interview and call the company secretary as a witness constituted a further ground of appeal
Decision
The Court found that evidence concerning events in 1983 and 1984 was inadmissible. Barr J, with whom Grove J and Howie J agreed, concluded that the probative value of that evidence did not substantially outweigh its prejudicial effect on the appellant. Admitting it as tendency or coincidence evidence was therefore an error.
The critical question at trial was the appellant's credibility, because the entire defence turned on whether the jury believed his account of the authorised arrangement with the directors. The erroneously admitted evidence was bound to colour the jury's assessment of that credibility. This made the error one that infected the fairness of the trial in a fundamental way.
The Court declined to apply the proviso under section 6(1) of the Criminal Appeal Act, even though the Crown case was, in Barr J's words, "strong to the point of being almost overwhelming" without the impugned evidence. Crown counsel on appeal properly conceded the proviso should not be applied. Given that credibility was the central issue, the Court could not be satisfied the verdict was unaffected by the admitted evidence.
The Court found it unnecessary to resolve the remaining grounds about the Crown's failure to call the company secretary, noting that the Crown had since interviewed that witness and might call him at any retrial.
Orders Made
- Appeal allowed
- Conviction and resulting sentences quashed
- New trial ordered
Key Takeaways
- Tendency and coincidence evidence will only be admissible where its probative value substantially outweighs any prejudicial effect; falling short of that threshold renders admission an error of law capable of vitiating a conviction.
- Where impugned evidence goes directly to the credibility of the accused on the central issue at trial, courts will be slow to apply the proviso under section 6(1) of the Criminal Appeal Act, even when the remaining Crown case appears very strong.
- The Court of Criminal Appeal noted with regret that an otherwise formidable prosecution was undone by reliance on evidence that was both inadmissible and unnecessary to prove the Crown's case.
- A concession by Crown counsel on appeal that the proviso should not be applied carries significant weight, particularly where credibility was critical to the jury's deliberations.
- Grounds of appeal need not be resolved in all circumstances: where a new trial is ordered and one ground concerns evidence that the Crown can address in the retrial, the Court may decline to rule on that ground.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), section 6(1) (the proviso permitting dismissal of an appeal despite error where no substantial miscarriage of justice has occurred)
Cases:
No specific cases were cited in the portions of the judgment provided.