In the 2019 judge-alone trial, the prosecution submitted that over the course of 18 months, Mr McNamara purported to invest the funds from the estates held in his practice’s statutory account into a trust known as the Andamooka Opal Stone Unit Trust (AOSUT), of which he and his co-accused had a professional link to. 

The trial judge found that he was satisfied beyond reasonable doubt that no funds from either of the deceased estates were ever invested with AOSUT and found Mr McNamara guilty of all offences. Co-accused Philip Pitman was acquitted of one count of using fabricated evidence in judicial proceedings in the Supreme Court. 

Mr McNamara attempted to appeal the penalty decision by arguing that the trial judge’s reasons were inadequate and that the reasons did not “sufficiently identify” the process of reasoning and findings with respect to elements of each charge. He also believed that the trial judge favoured witnesses’ evidence over his own. 

Commenting on the appeal, the Honourable Justice Kevin Nicholson, the Honourable Justice Mark Livesey and the Honourable Justice Chris Bleby wrote: “The complaints of the appellant seem to demand a long-form rote recitation of every factual finding and expressed application of law to each found fact, notwithstanding that [Mr McNamara] did not frame the contest in that way at trial.” 

A look back at the charges against McNamara: Stolen estate funds

In 2011, Mr McNamara’s first client died, leaving $480,000 in his estate to be divided between his four children. When a solicitor for one of the children asked Mr McNamara to distribute the funds, he was told that the estate had been invested and “could only be paid out once they matured or else the estate would suffer break costs”. 

When the solicitor pressed again, Mr McNamara said he was making inquiries of the “investment entity, investment manager and fund manager” but never identified which entity the funds were said to be invested in. Over the next 18 months, he squandered the estate on his mortgage, personal credit cards and staff wages. 

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The second client died a year later, leaving $500,000 for a charity and her niece and nephew. They were unaware of the bequests until the niece obtained a copy of the will and made inquiries of Mr McNamara, who advised her that the firm was awaiting the release of the funds from the estate’s superannuation accounts.

In a later email, Mr McNamara told the niece that $465,000 had been invested with “an anticipated payment on redemption” of over $487,000. He then siphoned the money from this estate in order to pay the beneficiaries of the first estate. 

“At no stage in his correspondence with the beneficiaries [of both client’s estates, or their representatives, did Mr McNamara mention an entity known as the Andamooka Opal Stone Unit Trust, a trust which was to assume considerable significance in the prosecution,” the Court of Criminal Appeal judges wrote in the judgement.

Attempting to cover his tracks

After the second estate’s beneficiaries filed a complaint, the Law Society determined to appoint a supervisor to the statutory trust account. Mr McNamara, along with Mr Pitman, filed an injunction to prevent the appointment and submitted affidavits and false certificates of investment that were made by Mr McNamara on his computer. 

In examining Mr McNamara’s computer, an expert also found four files containing near-identical letters purportedly from Dorothea Tomazos, the secretary of AOSUT. The letter read that the trust had “accepted the further investment of $35,000”. All four draft letters were written by Mr McNamara on different dates. 

“The prosecution case is that, having stolen the estates’ funds from his trust account, Mr McNamara tried to cover his tracks by pretending to have invested those funds in AOSUT,” the trial judge said. 

Mr McNamara had acted for a company that Ms Tomazos’ husband, Sotirios Portellos, had been a director of, as had Mr Pitman’s father. Until December 2011, Mr Portellos was also a trustee of AOSUT along with Mr Pitman and Ms Tomazos. 

A series of Skype messages, mainly between Mr McNamara and Mr Portellos, were also shown to the court, identifying Mr McNamara’s pleas that AOSUT transfer $460,000 to “diffuse the pressure”. Mr McNamara wrote that the “solution is money” and that, in the scheme of things, the $460,000 was “not a large amount”.

In a message sent to Mr Portellos, Mr McNamara wrote that the matter had been reported to “major fraud squad” and claimed that they “had no doubt” seen Mr Portellos’ website “and are saying it’s a Ponzi scheme and has no backing”. 

“If money does not materialise, I will probably end up in gaol and it will not stop there. As I said, the situation is starting to get very serious and Flick needs to know that his delay is getting the authorities very excited,” Mr McNamara wrote. 

Lawyers for Mr McNamara claimed that the Skype messages were his attempt to force AOSUT to repay the invested money and that his language was “colloquial”. 

The trial judge rejected this as implausible and considered that the Skype messages “were not conversations that a solicitor acting for the executor of a deceased estate would have with the representatives of an investment entity from which he was trying to cover legitimately invested money”. 

The entire judgement can be read on AustLII: McNamara v The Queen [2021] SASCFC 2 (28 January 2021).