Boscolo v Regina

[2000] NSWCCA 356

CITATION:	Boscolo v Regina [2000] NSWCCA 356
FILE NUMBER(S):	CCA 60568/97
HEARING DATE(S):	10 July 2000
JUDGMENT DATE:	7 September 2000
PARTIES :	Sylvia Boscolo v Regina
JUDGMENT OF:	Meagher JA at 1; Grove J at 16; Kirby J at 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0527
LOWER COURT JUDICIAL OFFICER :	Taylor DCJ

COUNSEL :	Appellant: P. Lowe Respondent: P. Hock
SOLICITORS:	Appellant: Horowtiz & Bilinsky Respondent: S.E. O'Connor
CATCHWORDS:	Appeal against conviction and sentence - Crimes Act s300 - insufficient territorial nexus to ground prosecution - s.305 Crimes Act "prejudice" - false instrument - withdrawal of caveat - property in Western Australia
LEGISLATION CITED:	ss. 300, 305 Crimes Act, 1900.
DECISION:	1. Appeal allowed; 2. Convictions and sentence quashed

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s300 CRIMES ACT 1900-USE FALSE INSTRUMENT-WITHDRAWAL OF CAVEAT-WHERE PROPERTY SITUATED IN WESTERN AUSTRALIA-JURISDICTION OF COURT TO HEAR TRIAL-APPEAL AGAINST SENTENCE

Facts: The appellant accused was charged with 2 counts under s300(1) Crimes Act 1900, making a false instrument, and 2 counts under s300(2) Crimes Act 1900, using a false instrument.
The charges were brought as a result of her allegedly having forged her ex-husband’s signature on two caveat documents which had been issued over properties in Western Australia.
The accused pleaded not guilty. A jury was unable to reach a verdict on the counts of making a false instrument, but returned a guilty verdict in relation to the counts of using a false instrument.
The accused appealed against sentence and made the following submissions:
1. There was no geographical nexus between the use of the false instrument in Western Australia and the state of New South Wales.
2. The withdrawal of the caveats caused no prejudice to another for the purposes of s300(2)(b) Crimes Act 1900.
The Crown submitted that prejudice had occurred to Mr Boscolo for the purposes of the Act, as he was not given an opportunity to be informed of the removal of the caveats.

Held: (the court) There was sufficient geographical nexus between the accused and this state, as all correspondence between the accused and various bodies in Western Australia was to her Sydney address.
As a result of Family Court proceedings, both properties were vested in Mrs Boscolo. This does not constitute prejudice for the purposes of the Act.
Even if the signatures had been forged, it is unreasonable to expect the West Australian Department of Land Administration to notify the caveator who is supposedly making the withdrawal.

ORDERS

1. Appeal allowed
2. Convictions and sentence quashed

IN THE COURT OF
CRIMINAL APPEAL

60568/97

MEAGHER JA
GROVE J
KIRBY J

Thursday, 7 September 2000

BOSCOLO v REGINA

JUDGMENT

1   MEAGHER JA: The appellant, Mrs Boscolo, was sentenced by Taylor DCJ to two amounts of six months periodic detention to commence on 14 November 1997. She appeals from that sentence. 2   The circumstances of her conviction are somewhat unusual. She and her then husband (now her ex-husband) Mario Boscolo bought two lots of land in West Australia, one at 428 Carrington Street, Hamilton Hill and the other at 120 Mills Street, Coogee Beach. Each was apparently bought with his money but was registered in her name. On 28 August 1987 he protected his interest in the land by lodging a caveat on each title. 3   The rest of the facts may be summarized shortly. The marriage foundered, the parties separated and despite an attempted reconciliation or two, were divorced. In the course of the divorce proceedings the Family Court made orders which, in effect, divested the husband of all his interest in each of the two properties in question. He appealed, and the status quo was protected by an order staying the divesting. 4 Then, before the appeal was heard, the West Australian Department of Land Administration withdrew each caveat. It did so pursuant to what appeared on its face to be a valid request to withdraw the caveat signed by Mr Boscolo. Mr Boscolo maintained, and gave evidence to that effect, that neither of the signatures was his. The Crown, for reasons which it is not relevant to discuss, concluded that the appellant forged her husband’s signature on each withdrawal form and charged her under s.300(1) of the Crimes Act 1900 with making false instruments, one charge in respect of each form. 5 The jury could not agree and were duly discharged. 6 However, Mrs Boscolo was also charged with two charges (one in respect of each form) with using a false instrument under s.300(2) of the Act, and in respect of these two charges the jury returned a verdict of guilty. It is necessary to set out the terms of that sub-section. It reads as follows:

“(2) A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person:
(a) to accept the instrument as genuine, and
(b) because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,
is liable to imprisonment for 10 years.”

Attention should be devoted to the expression “prejudice” in s.300(2)(b). It is given a rigid exclusive definition in s.305, which reads as follows:

“For the purposes of this Division, an act or omission is to a person’s prejudice if, and only if, it is one that (if it occurs);
(a) will result:
(i) in the person’s temporary or permanent loss of property, or
(ii) in the person’s being deprived of an opportunity to earn remuneration or greater remuneration, or
(iii) in the person’s being deprived of an opportunity to obtain financial advantage otherwise than by way or remuneration, or
(b) will result in any person being given an opportunity:
(i) to earn remuneration or greater remuneration from the first-mentioned person, or
(ii) to obtain a financial advantage from the first-mentioned person otherwise than by way of remuneration, or
(c) will be the result of the person’s having accepted a false instrument as genuine, or a copy of a false instrument as a copy of a genuine one, in connection with the person’s performance of a duty.”

7 As far as the Hamilton Hill property was concerned, the appellant wrote to a company called Blackburn and Dixon Pty Limited in early May 1993 seeking a loan of $45,000 to be secured over the Hamilton Hill property; that company replied on 18 May 1993 explaining that a withdrawal of the caveat would be required before any loan was made; four days later, on 21 May 1993 the Department of Land Administration duly received an apparently valid form, which she executed and returned the following day; the mortgage was duly registered and on 28 May 1993 the mortgaged moneys were deposited with the appellant’s bank account. 8 As far as the Coogee Beach property was concerned, a parallel chain of events occurred, with a company called K.J. Investments playing the same part as Blackburn and Dixon. On 26 October 1993 the Department received an apparently valid withdrawal of caveat form; the caveator’s signature on it was forged; mortgage moneys were advanced and a mortgage registered on the title. 9 It was many months later that Mr Boscolo woke up. 10 The Family Court, on 3 August 1994, after the events I have described, dismissed Mr Boscolo’s appeal. From that moment it is clear Mr Boscolo had no interest, legal or equitable, in either property. 11 The jury convicted the appellant on both the “user” charges. The appellant’s learned counsel, challenging those convictions, advanced a number of submissions, the chief of which was that there was no geographical nexus between the usage relied on and the State of New South Wales. We entertained that submission, although it had not been made at trial. He did, however, concede that if the withdrawal forms had been posted from New South Wales, the requisite nexus would exist. He also agreed that the evidence made it clear that the forms were posted to Perth. But, he said, there was no evidence they were posted from New South Wales. It was possible, he said, that the appellant might, for example, have flown to Canberra or Hobart in order to post them. But this is a fanciful submission. The appellant was living in a Sydney suburb with six of their children. All correspondence between her and the two lending companies went to and came from her Sydney address. 12 A more substantial submission, was that the acceptance by the Department of the withdrawal forms did not cause prejudice to any person, as referred by s.300(2)(b). It did, of course, deprive Mr Boscolo of whatever protection the caveats afforded him; but that is not one of the forms of prejudice which is listed in s.305. And, what is more to the point, it is not the form of prejudice on which the Crown relied at the trial. The “prejudice” on which the Crown relied seems to have been that the withdrawal deprived him of the opportunity to be “notified”. In his remarks to the jury his Honour said:

“Once the caveat is withdrawn the Registrar or Department of Land Administration is able to deal by way of sale or mortgage without notification to the person claiming interest.
The thrust of the Crown case with respect to each of the two properties is the accused (sic) was the caveator. He protected his interests by placing caveats on the title. The accused forged his signature on the withdrawal of caveat original and sent it to be lodged and that thereafter it was entered on the certificate of title. In this way the title of the property was freed so that she could mortgage it. In this way Mr Boscolo would not be notified.”

13 As Mr Lowe said, it is not clear why the Department would notify the caveator of anything if it had received an apparent request from the caveator. More to the point, absence of notification is not one of the forms of prejudice listed in s.305. 14 In these circumstances I think it must be concluded that the Crown failed to prove an essential ingredient of the charge. The result must therefore be: 15 1. Appeal allowed.

2. Convictions and sentence quashed.

16   GROVE J: I agree with Meagher JA. 17   KIRBY P: I agree with Meagher JA.