One of the defence lawyers in a million-dollar gold stealing case in Western Australia says the lives of the five co-accused have been "irreparably damaged", despite their acquittal.
On Tuesday afternoon, a District Court jury returned not guilty verdicts on all 10 charges after a four-week trial over the alleged theft of gold-bearing ore from the Greenfields Mill near Coolgardie, in the Goldfields.
Among the five accused was the former general manager of gold miner FMR Investments, 42-year-old Patrick Rhyan Keogh, who had faced the most serious charge of stealing as a servant.
Tom Percy KC represented the former mill manager, 76-year-old Christopher Robert Burns, who battled terminal cancer throughout the trial and was also acquitted of the charge of stealing as a servant.
Despite Tuesday's win, Mr Percy said the trial would take a heavy toll on the accused, which also included business partners Simon Leslie Gash, 57, and Russell Wilson Holden, 51, alongside former mill superintendent Morgan Whitney Dombroski, 33.
"No one wins, their lives will be irreparably damaged irrespective of which way you look at it," Mr Percy said.
"You go down and see people walking out of the District Court, and they don't go and celebrate.
"It's a question of relief, rather than any euphoria, because their lives are changed and they'll never get it back, and they'll certainly never get the money back."
Heavy burden of court costs
The combined legal bill from the five defence teams, which included two King's Counsels and a Special Counsel, is expected to be well above the $1.17 million value of the gold the allegedly stolen ore produced.
Defence lawyer David Grace KC said, "It almost certainly will be, yes" when he spoke to media outside the Kalgoorlie courthouse on Tuesday, with sources telling the ABC that each accused is facing legal costs of at least $250,000 and likely higher.
Mr Percy would not confirm costs but agreed it was significant, adding there was no prospect of recouping legal fees as applications for costs were not considered in District Court matters.
"Justice is never cheap for an accused … it's cheap for the state," Mr Percy said.
"No prosecutor has to dip into his superannuation fund or sell his house to run a case … accused people do.
"The really sad part of it is, and I've been pushing this for years, if that case was in the Magistrate's Court, you'd get an order for costs.
"In a District or Supreme Court, there is no order for costs, either in a first instance or on appeal.
"In a civil case, there's always an order for costs."
Biggest case since mint swindle
Mr Percy, who was born in Kalgoorlie, has had life-long involvement in mining and has practised law since graduating from the University of WA in 1977, including for a decade in the Goldfields.
He said to his knowledge, the trial was the biggest gold stealing case in WA since the Mickleberg brothers' convictions over the 1982 Perth Mint swindle.
But he said the case never should have gone to trial.
"As I opened the case to the jury, I said that in my view this whole case was misconceived, and I stood by that, and I think that the verdict of the jury vindicated it," Mr Percy said.
He said he was not surprised by the speed of the verdict after the jury deliberated for barely two hours on Tuesday afternoon.
"We have an old saying at the bar that jury's convict at their leisure, but they acquit quickly," Mr Percy said.
"I think just out of deference to the process and the court, they probably took an hour longer than they needed to.
"It wasn't a surprise to me, and without wishing to sound arrogant, I thought the prosecution case just never got off the ground."
Mr Percy said he had dealt with "half a dozen" gold stealing cases in his long career, where workers had typically been accused of stealing small amounts of gold, but "nothing of this magnitude".
He was not involved in the Micklebergs' case, which he said was by far the biggest case in WA's gold stealing history.
"Stealing from the mint is different to stealing ore, that's a far different kettle of fish," he said.
"It was a trial with a difference, because a lot of gold stealing is where people go and take gold bars, or there's a genuine aspect of blatant dishonesty about it.
"This one was marginal. The prosecution case had to prove that something which was done ostensibly, quite openly, without any false names, bank accounts … I mean this was not the Micklebergs.
"I think it's up there with any of the major gold stealing cases in the history of the Goldfields."
Mr Percy said he did not think there would be wider ramifications for the gold industry as a result of the trial.
But he did suggest the days of "handshake agreements", as the court heard was the case during the trial, might be numbered.
"I think it might sound a warning to people in the gold industry that no matter how much you trust someone, always get it in writing," he said.
Miners watching in public gallery
The FMR Investments case attracted widespread interest from big players in WA's gold mining industry for months leading up to the trial.
Among those who sat in the public gallery during the trial was well-known Kalgoorlie accountant and publican Ashok Parekh, who is chairman of ASX-listed gold miner Horizon Minerals which has toll milling contracts with Greenfields Mill.
WA prospector turned mining millionaire Anton Billis — one of FMR Investments' biggest clients at Greenfields Mill – was also a regular sitting in the back of the courtroom.
The court heard Mr Billis' companies, ASX-listed Tribune Resources and Rand Mining, had 340,821 tonnes of ore processed at the mill in the two years from July 2018 to June 2020.
Aqua Alluvial Pty Ltd – the private company controlled by two of the co-accused — was a small client in comparison with 16,933 tonnes.
Graham McGarry, managing director of ASX-listed gold miner Beacon Minerals which has previously treated ore at Greenfields Mill, also sat in court briefly.
The other notable attendees for the duration were Mr Keogh's family, and a lawyer for FMR Investments who audited the trial, but was ordered by the judge not to speak to his employer, Peter Bartlett, until after the trial ended.
Mr Bartlett was the key prosecution witness, his credibility under fire by the defence and the jury clearly paid attention to its directions from Judge Christopher Stevenson to "closely scrutinise" his evidence.
The jury had to choose who to believe, Mr Keogh or Mr Bartlett, and whether he was generous enough to gift him a waste stockpile or "bog" as he called it.
And while a myriad of factors led to the collapse of the prosecution case, the police interview of Mr Burns gave a telling insight into how the FMR Investments boss was viewed among his employees.
The court had heard Mr Burns retired on January 8, 2019 — the day after the milling of the allegedly stolen ore was completed — and that he was diagnosed with leukaemia later that year.
In his nearly two-hour police interview, the former mill manager said he was known for "calling a spade a spade" and that was evident when he told detectives Mr Bartlett's nickname was "piggy" in the Goldfields.
"He's called Piggy Bartlett ... pig by name, pig by nature," Mr Burns told detectives.
"That mill was losing $10 million a year ... and I turned it around in two years.
"I got asked if Peter gave you anything when you left? I said no, but I didn't expect it.
"That's what Peter's like ... he's just one of those people."
