SUPREME COURT Four Men Convicted Of Conspiracy To Defraud

Press, Volume CIX, Issue 32164, 6 December 1969, Page 14

SUPREME COURT Four Men Convicted Of Conspiracy To Defraud

Four men who have stood Supreme Court trial all this week on joint charges of theft of 32991 b of scrap cop per wire from the Post Office —or, alternatively, false pretences and conspiracy to defraud—were acquitted by an 11-man jury late last evening on the charges of theft and false pretences but found guilty of conspiracy to defraud.

They are Terrence McDonald, aged 29 (Mr J. E. Farry), Kenneth Larry McDonald, aged 24 (Mr P. T. Mahon), Malcolm Henry Garmston James Bottle, aged 42 (Mr Mahon), and Alan Alexander Hamilton, aged 39 (Mr M. G. L. Loughnan), all scrapmetal dealers. A fifth accused, Henry Clarence Sullivan, aged 35, a textile worker (Mr P. G. S. Penlington), was acquitted on all three counts.

Mr Justice Macarthur, on the jury’s verdict—given after a retirement of almost six hours—remanded the first four accused, in custody, for sentence on December 12,

and ordered Sullivan to be discharged. The Crown had alleged that the accused, using heavy ingots obtained by Sullivan from the Copper Refining and Chemical Company, Ltd—where he was foreman-buyer —falsified the unladen weight of a truck before packing up on February 18 a quantity of scrap metal purchased by tender, and so took away wire shown as 12,1001 b instead of the true weight of 15,3991 b.

Standard Of Proof Mr Mahon, in addressing the jury on behalf of Kenneth McDonald and Bottle, had submitted that if the test of proof beyond reasonable doubt was applied, the Crown’s case against all five accused collapsed, Mr Justice Macarthur, concluding his summing-up, also said that he considered the case to be one in which there was a reasonable doubt

Mr Mahon, in his address, said that after Kenneth McDonald and Bottle had, in May, pleaded guilty to the theft of 5121 b of wire by using ingots, the police had set about seeing if they, and the other accused, might have committed a similar type of offence in February. The Crown had had to use the highly-prejudicial evidence of the May theft to support a case in which it had no real evidence.

“It is a cardinal principle of justice that a man should be tried without reference to anything else he has done—but the Crown was able, on technical grounds, to get this evidence in, because it has no real evidence against these men on February 18," Mr Mahon said.

The case brought by Detective Sergeant A. B. Dalzell “and his henchmen” had turned out to be not as good as they thought it was, because the evidence showed, submitted Mr Mahon, that the record of copper wire held at the Post Office depot on February 18—the whole basis of the Crown’s case—was incorrect No-one knew better than the police that the amount of

scrap copp.er wire held in any depot at any one time would not be known, because of the prevalence of theft by intruders—even in one reported instance, from a floodlit and locked compound—and by local-body and departmental employees themselves. The Post Office had accepted, in February, that the quantity of scrap metal it thought it had on February 18 was wrong, Mr Mahon submitted, and had accepted payment from Kenneth McDonald on that basis, and another tender from him in March.

Mr Penlington, for Sullivan, said that the Crown had started with “an ingot case” and ended up with a "railway iron case.” If there was any doubt in the jury’s mind that Ingots had not been used, then Sullivan was entitled to an acquittal. Crown Address

Mr R. L. Kerr, for the Crown, said that the defence had raised matters to cloud the issue, saying that the unladen weight of their vehicle —which the Crown said had been falsified—was explained by a ballast of railway iron under its tray. But it did not matter whether ingots or railway iron had been there. It was a simple matter to have removed either after the first weighing of the truck, and thus given the accused an advantage of up to 12001 b for each of three subsequent loads.

“And what did they do with the copper?” Mr Kerr asked, “They bought it for 39c per lb, and were off round to the Copper Refining Company the same day, unloading it at 36c per lb—a loss of 3c per lb, representing about $360. The first four accused, said Mr Kerr, were dealers. Why had they not waited a few days, a fortnight, or a month, until the price of copper might have gone up? “Not them. They sold it the same day,” said Mr Kerr. “I submit that they jolly well knew they were not going to make a loss because they had uplifted 15,3991 b and were going to have to pay for only 12,1001 b.”