A judge has instructed jurors in trial of five people accused of an alleged million-dollar gold theft to ignore text messages that allegedly refer to a cash payment of $90,000 being "delivered".
After a four-week trial, Judge Christopher Stevenson today issued final directions and summarised the evidence for the 14-member jury, which was reduced to 12 after a ballot.
The jury will consider a total of 10 charges against the five accused, who include the former general manager of gold miner FMR Investments, 42-year-old Patrick Rhyan Keogh.
The charges relate to the alleged theft of 8,465 tonnes of gold-bearing ore from FMR's Greenfields Mill near Coolgardie four years ago.
The gold the ore produced, and which was sold to the Perth Mint, was worth $1.17 million based on metal prices at the time.
Mr Keogh and former Greenfields Mill manager Christopher Robert Burns, 76, have both pleaded not guilty to stealing as a servant and other charges relating to the proceeds of an offence.
Simon Leslie Gash, 57, and his business partner, Russell Wilson Holden, 51, have pleaded not guilty to money laundering and fraud charges over their alleged involvement via private company Aqua Alluvial Pty Ltd.
It is alleged the group formed a joint venture for a milling campaign which processed 16,931 tonnes of ore at Greenfields Mill between December 27, 2018, and January 7, 2019, combining the allegedly stolen ore with material mined by Mr Gash and Mr Holden.
The court heard the agreement was for Aqua Alluvial to receive 50 per cent of the proceeds, while Mr Keogh and Mr Burns agreed to take 25 per cent cuts, which documents tabled in court showed was equivalent to $587,291 each.
Former mill superintendent Morgan Whitney Dombroski, 33, has also pleaded not guilty to possessing $5,050 suspected of being unlawfully obtained, which the prosecution alleges was leftover from a $90,000 cash payment she received from Mr Burns.
Judge rules texts inadmissible
Judge Stevenson told the jury a series of text messages — listed formally as exhibit 40 — were not admissible against Ms Dombroski but they could be considered as evidence in the case against Mr Burns and Mr Gash.
"You must put it out of your mind," Judge Stevenson said.
"The state cannot prove that [$90,000 payment], only that she received an unknown quantity of cash."
The court has previously heard a series of texts were exchanged between Mr Burns and Mr Gash from March 13-14, 2019.
In the messages, the court heard Mr Burns told Mr Gash "I'm going to give Morgs some of my funds" and he acknowledges that "it would have been difficult to ron [sic] the project without her".
Mr Burns also texted Mr Gash "I'd like to give her 90k not sure if you could organise that".
The court has also heard that Mr Gash replied on March 14, 2019, with a single word — "delivered".
Envelope of cash
State prosecutor Paul Usher has maintained throughout the trial that "Morgs" was reference to Ms Dombroski and "90k" was the alleged $90,000 cash payment.
Mr Usher has alleged that she knew the money she was paid was the proceeds of an offence and that she and Mr Burns were not entitled to payment from the milling campaign.
Mr Usher said that as mill foreman at the time, she knew about the processing campaign and that Mr Keogh and Mr Burns had the intention of depriving FMR Investments of the gold.
During the trial, the court heard that Mr Gash allegedly delivered a box containing $90,000 cash that Mr Burns subsequently gave to Ms Dombroski.
In her police interview on January 13, 2021, Ms Dombroski told detectives from the WA Police Gold Stealing Detection Unit that Mr Burns had given her an envelope full of cash and that he told her "don't ask questions".
Ms Dombroski, who has no prior criminal record, told police that the money was given to her because she had been working hard and deserved a pay rise.
Mr Usher called her explanation "fanciful and implausible" in his closing address.
'Don't ask questions'
Judge Stevenson told the jury "nothing in exhibit 40 can be relied upon" during deliberations on the allegations against Ms Dombroski.
"It's a matter for you to determine if you are satisfied beyond reasonable doubt, whether you find it as members of the community, that money was reasonably suspected to be unlawfully obtained by Ms Dombroski," Judge Stevenson said.
"If satisfied, then it is a defence ... for the accused person to prove that she had no reasonable grounds of proving it was stolen or unlawfully obtained.
"If she had reasonable grounds of suspecting it was stolen or unlawfully obtained, then the verdict is guilty."
The court heard Ms Dombroski was processing superintendent at Greenfields Mill after being promoted from mill foreman in November 2020.
Police found $5,050 in $50 notes in a safe in Ms Dombroski's bedroom when they executed a search warrant, the court heard.
"He handed me over money … I didn't count it," she said during her 40-minute police interview which was played in court.
"He said 'don't ask questions' … I just went along with it."
Ms Dombroski's lawyer, Carmel McKenzie, told the court Ms Dombroski was given cash by Mr Burns but said it was for her hard work over several years.
"The state case is she [Ms Dombroski] knew and had knowledge of something unlawful occurring, but there is no evidence to suggest she had any knowledge," Mrs McKenzie said in her closing address.
The court heard Ms Dombroski spent the bulk of the cash on home improvements, including a new air conditioner, and for day-to-day expenses while she took six months off work with her young son.
