Director of Public Prosecutions v Alimic
[2022] VCC 256
•10 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00652
CR-18-02587
CR-18-02588
CR-18-02589
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARIA ALIMIC and KLEMENTINA ALIMIC |
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JUDGE: | Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March; 31 May; 2, 4, 7-10, 15-18, 21-25, 28-30 June; 1-2, 5-7, 9, 12-16, 19-23, 26-30 July; 2-6, 10-13, 16, 18-20, 24, 30, 31 August; 1-3, 7, 13-15, 17, 20-23, 27-30 September; 1, 5-8, 13-15, 21, 22, 25, 26, 28 October; 3, 5, 9, 12, 15, 18, 22, 24, 25 November; 6-10, 13 December 2021 | |
DATE OF JUDGMENT: | 10 March 2022 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2022] VCC 256 | |
REASONS FOR JUDGMENT
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Subject:Criminal law
Catchwords: Conspiracy to defraud (common law) – trial by judge alone
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr Thomas Gyorffy QC, Ms Jennifer Croxford, and Mr Carlin Grant | Office of Public Prosecutions |
| For Accused – Maria Alimic | Mr Simon Kenny and Ms Lucinda Thies | Stary Norton Halphen |
| For Accused – Klementina Alimic | Mr Andrew Imrie and Ms Veronika Drago | Criminal Lawyers Geelong |
Table of Contents
Introduction
General Directions of Law
Onus and Standard of Proof, and Presumption of Innocence
Decision to be Based Solely on the Evidence
Circumstantial Evidence and Conclusions
Credibility, Reliability and Prior Inconsistent Statements
The Charge and its Elements
Element One – The Objective
Element Two – The Means
Question Trail
The Evidence
Establishment of the Business
Roles of Persons Associated with the Business
Maria Alimic
Nemanja Durovic
Klementina Alimic
Lynne Sheean
Sanja Samardzic
Martha Kek
Rose Deng
Asunta Weil
Other Family Members and Friends of Maria Alimic and Klementina Alimic
Sunduk
July 2015
Nyawarga Paguer – Payment of $7000
Rose Deng – Payment of $60,000
Elizabeth Nhial – Payment of $7000
Nyaboth Koang – Payments of $1000 and $6000
Mary Alier – Payment of $7000
John Deng – Payment of $10,000
Other Dealings between Asunta Weil and Maria Alimic
Alleged Betterment – Renovations for Parents at 3 Stapledon Court, Corio
Alleged Betterment – Other Items (Curtains)
Communications between Accused
August 2015
Nyachom Luk – Payment of $7000
Alam Domkoc – Payment of $7000
Elizabeth Chol – Payment of $7000
Acuil Mawien – Payment of $7000
Agel Achen – Payment of $6000 and $1000
Tereza Audo – Payment of $10,000 and $7000
Rose Marajan – Payment of $7000
Reita Lado – Payment of $9000
Rose Deng
Martha Kek
Alleged Betterment – Lot 1124 Chaucer Crescent, Bellevue Estate
Alleged Betterment – Lot 1213 Samsara Crescent, Bellevue Estate
Alleged Betterment – Renovations for Parents at 3 Stapledon Court, Corio
Communications between Accused
September 2015
John Deng – Payment of $18,000
Tereza Audo – Payment of $5000
Mary Allaz – Payment of $7000
Martha Bup – Payment of $7000
Nyamal Mun – Payment of $3000
Laade Adel – Payment of $7000 and $15,000
Ajuong Awur – Payment of $5000
Aluel Chut – Payment of $4000
Dealings in Respect of Other Complainants’ Transactions
Alleged Betterment – 7 Ormesby Place, Deer Park
Communications between Accused
October 2015
John Deng – Payment of $20,000
Nyachom Luk – Payment of $10,000
Alam Domkoc – Payment of $10,000 and $7000
Agel Achen – Payment of $10,000
Tereza Audo – Payment of $3000
Nyamal Mun – Payment of $4000
Laade Adel – Payment of $7000
Aluel Chut – Payment of $17,000 and $11,000
Ajok Keuth – Payment of $1000 and $7000
Amel Doot – Payment of $13,000 and $4000
Dut Ungom – Payment of $15,000
Abouk Garang – Payment of $9000
Mary Ater – Payment of $7000 and $10,000
Abuk Kual – Payment of $10,000 and $7000
Ajok Kuany – Payment of $15,000, $5000 and $12,000
Kuei Ariik – Payment of $10,000
Dealings in Respect of Other Complainants’ Transactions
Alleged Betterment – 3 Rosyth Court, Deer Park
Alleged Betterment – Units 1 and 2, 5 McLelland Street, Deer Park
Alleged Betterment – Morganite Ring
Communications between Accused
November 2015
Mary Alier – Payment of $12,500
Tereza Audo – Payment of $30,000, $17,000, and $10,000
Ajok Keuth – Payment of $9000
Marian Nimr – Payment of $17,000
Khadija Abdalla – Payment of $15,000 and $2000
Nyakuma Rang – Payment of $10,000
Aguel Nyieg – Payment of $17,000
Libena Wani – Payment of $17,000
Nyawarga Gatwech – Payment of $20,000
Peter Kuol – Payment of $10,000 and $7000
Lola Taban – Payment of $32,000
Amani Badawi – Payment of $5000 and $12,000
Awook Deng – Payment of $17,000
Adeng Bol – Payment of $17,000
Amu Awir – Payment of $17,000
Rebecca Tuach – Payment of $10,000
Deng Piok – Payment of $20,000
Lona Yata – Payment of $17,000
Dealings in Respect of Other Complainants’ Transactions
Dealings with Asunta Weil
Communications between Accused
Other Communications
December 2015
Alam Domkoc – Payment of $3500
Ajok Keuth – Payment of $15,000
Amel Doot – Payment of $10,000 and $10,000
Dut Ungom – Payment of $4500
Marian Nimr – Payment of $20,000 and $10,000
Aguel Nyieg – Payment of $30,000
Peter Kuol – Payment of $10,000 and $23,000
Adeng Bol – Payment of $15,000
Deng Piok – Payment of $26,000
Puourac Thomas – Payment of $20,000
Martha Kek – Payment of $3000
Dealings in Respect of Other Complainants’ Transactions
Settlement of Moses Akot’s Property and Atong Duang’s Property
Alleged Betterment – 33 Shand Road and 18 Southernhay Street, Reservoir
Alleged Betterment – Other Items (Bedroom Furniture)
Christmas Party
Attempts to Address Increasing Disorganisation within the Business
Opening of Noble Park Office
Communications between Accused
Opening of “Business Account”
January 2016
Alam Domkoc – Payment of $20,000
Laade Adel – Payment of $10,000
Amel Doot – Payment of $15,000 and $20,000
Abouk Garang – Payment of $31,000
Mary Ater – Payment of $8500
Nyakuma Rang – Payment of $10,000
Kuei Ariik – Payment of $9000
Nyadow Wur – Payment of $5000 and $10,000
Nyadak Gatkuoth – Payment of $10,000, $10,000 and $5000
Niya Kuku – Payment of $20,000
Akur Bar – Payment of $18,000
Nyachol Nyouk – Payment of $22,000
Dealings in Respect of Other Complainants’ Transactions
Alleged Betterment – Purchase of Pinball Machine
Alleged Betterment – Holiday for Stefani Alimic and Ryan Burt
Loans to Maria Alimic
Communications between Accused
February 2016
Reita Lado – Payment of $31,000
Amel Doot – Payment of $5000 and $3000
Laade Adel – Payment of $10,000 and $10,000
Lola Taban – Payment of $2000
Amani Badawi – Payment of $2000
Amu Awir – Payment of $20,000
Martha Kek – Payment of $7000
Nachol Kit – Payment of $10,000 and $12,000
Nyadow Wur – Payment of $5000 and $12,000
Nyadak Gatkuoth – Payment of $6000 and $6000
Akur Bar – Payment of $13,000
Nyadour Gach – Payment of $22,000
Achok Dut – Payment of $7000
Nyachaot Mut – Payment of $22,000
Ajulu Oman – Payment of $5000 and $10,000
Dealings in Respect of Other Complainants’ Transactions
Loans taken out by Maria Alimic
Sunduk
Communications between Accused
Commencement of Police Investigation
March 2016
Lona Yata – Payment of $2000
Nyachol Nyouk – Payment of $2000
Nyadour Gach – Payment of $2000
Rebecca Chuol – Payment of $5000
Dealings in Respect of Other Complainants’ Transactions
Alleged Betterment – 7 Knight Court, Hillside
Alleged Betterment – Support of Stefani Alimic and Ryan Burt
Alleged Betterment – Payment to Graham Spillard of $90,000
Alleged Betterment – Other Items (Doors Plus)
Communications between Accused
Removal of Documents from Business Premises
Search Warrant and Arrest of Maria Alimic
Further Investigation
The Law
Directions in accordance with the JDA
Section 29 Direction
Section 41 Direction
Section 43 Direction
Further principles of law
Co-Conspirator’s Rule
Betterment
Counsel’s Submissions
Prosecution Closing Address
Defence Closing Address on behalf of Maria Alimic
Defence Closing Address on behalf of Klementina Alimic
Analysis – Element One – The Objective
The Issues to be Determined
Findings in Respect of Evidence of Alleged Betterment
Application of Co-Conspirator’s Rule to the Evidence
Findings in Respect of Agreement
Preliminary Matters
Representations made by Maria Alimic
Betterment – Maria Alimic
Representations made by Klementina Alimic
Betterment – Klementina Alimic
Klementina Alimic’s Involvement in Financial Aspects of the Business
Communications Inconsistent with the Alleged Agreement
Conclusion on the First Element
Verdict
Formal Orders
HER HONOUR:
Introduction
1Maria Alimic and Klementina Alimic (who are mother and daughter respectively) are charged with a single charge of conspiracy to defraud, contrary to common law. In summary, the prosecution alleges that Maria Alimic and Klementina Alimic conducted a business which offered services to prospective home buyers. Whilst operating that business, it is alleged that Klementina Alimic and Maria Alimic agreed with each other to induce the clients of the business to give them money by falsely representing to those clients that money paid by a specific client would only be used towards the purchase of that client’s specific property (or alternatively by concealing from the client that this was not the case); and then to use the money received from clients for their own purposes. The prosecution alleges that by agreeing that they would not tell the clients they were using the money for their own purposes, the accused acted dishonestly. The prosecution further alleges that the accused were aware that as a consequence of their agreement, clients’ money would be put at risk and would not, or might not, be available to be used for the purpose that the client provided the money for. The conspiracy is charged as having occurred between 1 July 2015 and 8 March 2016, the latter date being the day on which Maria Alimic was arrested by police, albeit the prosecution conceded during their closing address that the evidence precludes a finding that an agreement was in place from the outset of that period.
2Maria Alimic and Klementina Alimic each deny, on an individual level, that they intended to induce clients to provide their money by dishonest means. However, even more fundamentally, each accused denies that they formed an agreement with the other to make dishonest representations to the clients as alleged; and denies that they formed an agreement to use the money obtained as a result of the dishonest representations for their own purposes.
3Both accused made an application to be tried by Judge alone pursuant to s420D of the Criminal Procedure Act 2009 (Vic) (‘CPA’). The application of each accused was granted by His Honour Lauritsen J on 16 December 2020. On 18 March 2021 the trial commenced before me. Both Maria Alimic and Klementina Alimic pleaded not guilty to the single charge on the indictment. The question which falls for me to determine, therefore, is whether the prosecution have proven the conspiracy alleged beyond reasonable doubt – the key issue being whether it has been proven to the requisite standard that at some point after 1 July 2015 and before 8 March 2016, the accused made an agreement – with each other – of the kind alleged by the prosecution.
4Pursuant to s420F of the CPA, my judgment must include the principles of law which I have applied and the facts upon which I have relied. I am not required to recount every piece of evidence or argument which has been put before the court – indeed to do so in this trial which has spanned many months, involved thousands of pages of exhibits, and had closing addresses which spanned six days, would result in a particularly unwieldy judgment. In coming to my verdict, I have however had regard to all of the evidence presented throughout the trial and considered all of the arguments put forward by counsel for the prosecution and counsel for each accused. The fact that I have not referred to a particular piece of evidence or a particular argument does not indicate that I have not had regard to that evidence or argument.
5In a trial by judge alone, my reasoning must be consistent with how a jury would be directed[1] and I may make any decision that could have been made by a jury.[2] In this trial that means I may find each accused guilty or not guilty of the charge before me. However, as I will explain in greater detail in due course, in the particular circumstances of this case, because the two accused are the only alleged conspirators and there are no alternative charges, any verdict which I return on the charge must be consistent as between the two accused.
[1]CPA, s420ZF; and Jury Directions Act 2015 (Vic) (‘JDA’), s4A.
[2]CPA, s420E.
General Directions of Law
6In coming to my verdict in this trial, I have ensured that my reasoning has been consistent with the following directions of law which would have been given to a jury hearing this case.
Onus and Standard of Proof, and Presumption of Innocence
7The prosecution bears the onus of proof and the standard of proof is beyond reasonable doubt. This is the highest standard of proof known to the law. Accordingly, in order for the prosecution to prove its’ case, it must satisfy me that each and every element of the charge has been proven beyond reasonable doubt. The accused are presumed to be innocent. They bear no onus of proof. It is not for the accused to prove their innocence, or prove anything at all.
Decision to be Based Solely on the Evidence
8I must decide the case only on the evidence led in this trial and, in respect of each accused, only on the evidence which is admissible against that accused. Where I have been privy to evidence for the purposes of determining legal arguments, and have ultimately determined that evidence to be inadmissible, I have not had regard to that evidence in coming to my judgment in this case. I also have not had regard to any media reporting or social media, or conducted any of my own research.
9The evidence adduced in this trial is the evidence of each of the witnesses, the exhibits, the agreed parts of police statements of witnesses and committal transcript which were read or tendered into evidence by the prosecutor, and any admissions made by each accused. The transcripts of evidence given in this trial, and transcripts of recordings tendered as exhibits in this trial, are to be used as an aid only and are not a substitute for the evidence adduced at trial. The addresses of counsel are not evidence.
10As the judge of the facts and the law, I must consider all of the evidence in the case, find the facts, and only draw reasonable inferences or conclusions based on the evidence that I accept. I must apply the law to the facts as I find them. I must bring an open and unbiased mind to the evidence and weigh it logically and dispassionately, free of partiality or prejudice. This is particularly important in this case where, as noted by Mr Imrie in his closing address on behalf of Klementina Alimic, many of the witnesses who attended court have clearly suffered an injustice in the way they have lost their money. That injustice does not, however, change the fact that I must deliver my verdict according to the evidence – determining whether the evidence presented has proved the offence charged.
Circumstantial Evidence and Conclusions
11Given that the case against each of the accused as to the existence of the agreement and as to their state of mind rests on circumstantial evidence, I may only return a verdict of guilty on the charge for each accused if I am satisfied that proof of the agreement made, with the requisite state of mind for each accused, is the only reasonable conclusion to be drawn from the whole of the evidence considered together and am satisfied that all of the elements are proved beyond reasonable doubt. If there is another reasonable view of the facts open which is consistent with the accused’s innocence, then the prosecution will not have proved the guilt of each of the accused beyond reasonable doubt and I must acquit them.
Credibility, Reliability and Prior Inconsistent Statements
12I must assess and determine the credibility and reliability of each witness and I may accept all, some or none of a witness’ evidence. I must base my verdict only on evidence I find to be credible and reliable. It is for me to decide whether each witness is telling the truth and whether they correctly recall the facts about which they are giving evidence. In doing so I bear in mind that I should not make an assessment simply on the basis of how a witness gave evidence – especially in circumstances where, in this trial, many witnesses gave evidence through an interpreter. Witnesses come from different backgrounds, have different abilities, values and life experiences. There are too many variables to make the manner in which a witness gave evidence the only, or even the most important factor, in my decision.
13In this case, a number of witnesses were cross-examined about prior versions of events given by them which were alleged to be inconsistent with evidence they gave in court at trial. If I accept that the witness made the previous statement, there are two ways in which I can use that evidence. Firstly, I can use the contents of the previous statement as evidence in the case. Secondly, if I find that the witness’s evidence is inconsistent with his or her account in court, then I can use that statement when assessing their credibility or reliability.
The Charge and its Elements
14Turning now to the offence charged and the elements of the offence.
15A conspiracy to defraud is an agreement between two or more persons to induce another or others, by dishonest means, to act in a way that will result in them suffering economic loss or having their economic interests imperilled.
16The agreement alleged by the Prosecution in this case is an agreement between Maria Alimic and Klementina Alimic which had the objective of inducing clients [being the purported clients of LoanMart and Zoran and Co] to provide sums of money to be used for the client’s individual benefit in connection with the purchase of property for them, in circumstances where the money would actually be used by Maria Alimic and Klementina Alimic for their own purposes. (As I have previously ruled, in this case ‘own purposes’ connotes any use of the money by the accused which falls outside the use of that money for that specific client’s purposes.) [3] It is alleged that by inducing the clients to act in this way, the clients would either suffer economic loss or have their economic interests put in peril, in that the money would not, or may not, be available to be used for the client’s purposes when payments towards the purchase of the property fell due.
[3]Ruling regarding scope of agreement, 12 November 2021, T4192.
17The Prosecution alleges that at the time of entering the agreement, Maria Alimic and Klementina Alimic intended to use dishonest means to induce the clients to provide those sums of money, the dishonest means being either to falsely represent the use to which the client’s money would be put, or, alternatively, to conceal the true purpose for which the money was going to be used.
18There are two elements which the prosecution must prove beyond reasonable doubt:
(i)that the accused agreed with each other to induce another or others to act in a way that would result in them suffering economic loss or having their economic interests imperilled (‘the objective’); and
(ii)that at the time of entering the agreement, each of the accused intended to achieve that inducement of another or others by dishonest means (‘the means’).
Element One – The Objective
19The Prosecution must prove beyond reasonable doubt that the accused agreed with each other to induce another or others to act in a way that would result in them suffering economic loss or having their economic interests imperilled. It is not necessary for the prosecution to prove that the accused intended to cause actual economic loss to the clients. Indeed it is possible for this element to be met in circumstances where the accused may not have intended or even foreseen the probability that others would suffer economic loss; and may have genuinely believed that there would ultimately be no loss. In order to prove this element, the prosecution would need to prove at minimum that the accused were aware, at the time of making the agreement, that there was a risk of economic loss as a result of their agreement to act in the way in which they did.
20The agreement may be sought to be proved through direct evidence of the agreement having been made – for example through a document which records the agreement in writing; evidence from a witness who hears a conversation between the alleged conspirators; or a recording of a telephone conversation in which the alleged conspirators discuss the agreement. Alternatively, in circumstances where there is no direct evidence of the agreement, the existence of an agreement may be sought to be proved through inferential reasoning based, for example, on the acts of the parties. In this case, there is no direct evidence of an oral or written agreement. Rather the prosecution seeks to establish the existence of the agreement through circumstantial evidence from which an inference as to the existence of the agreement can be drawn.
21In considering whether the prosecution has proven this element, I would have to be satisfied beyond reasonable doubt that there was an agreement between Maria Alimic and Klementina Alimic to induce the clients of ‘the business’ to provide sums of money ostensibly for the purpose of those monies being used for the specific client’s individual benefit in connection with the purchase of property for them, but in circumstances where the money would actually be used by Maria Alimic and Klementina Alimic for their own purposes.
22Given the manner in which the Prosecution has run its’ case, to be satisfied that such an agreement was made, I would have to be satisfied of two aspects.
23Firstly, I would have to be satisfied beyond reasonable doubt that both Maria Alimic and Klementina Alimic, at the time of entering the agreement, knew and agreed that Maria Alimic and/or Klementina Alimic would either falsely represent to the clients of the business that the money provided by a specific client would only be applied towards the purchase of that specific client’s own property; or alternatively conceal from clients that the money provided by a specific client was not going to be dealt with in a manner where it would only be applied towards that specific client’s property transactions.
24Secondly I would have to be satisfied beyond reasonable doubt that both Maria Alimic and Klementina Alimic, at the time of entering the agreement, knew and agreed that rather than clients’ money being held purely for the purposes of paying for each specific client’s property needs, that one, or other, or both of Maria Alimic and Klementina Alimic would use the money provided by clients for their own purposes.
25It is not enough for Maria Alimic and/or Klementina Alimic to have independently decided to use the money for their own purposes; or to have an expectation that the other would use the money for their own purposes; or to think that the money might be used for the other’s own purposes. If any of those possibilities cannot be excluded beyond reasonable doubt, then the first element would not be made out.
26Further, given that Maria Alimic and Klementina Alimic are the only alleged conspirators, if I am not satisfied that it has been proved beyond reasonable doubt that they agreed with each other to do this, then I must find both of the accused ‘not guilty’ of the offence. If there is no agreement between them, then there can be no conspiracy.
27Finally, although the indictment alleges a conspiracy between 1 July 2015 and 8 March 2016, and defines ‘the clients’ as the purported clients of Loanmart and Zoran & Co, these are not elements of the conspiracy, they are particulars which assist to define the scope and outer limits of the prosecution case. Accordingly, in this case, if I am satisfied that an agreement of the type identified is formed at any point between 1 July 2015 and 8 March 2016 in relation to all of the clients of the business, that would be sufficient to meet the first element as such an agreement would still fall within the parameters of the conspiracy which the prosecution have set out to prove, and would not amount to a substantially different conspiracy.
28Therefore, in order to prove the first element, the prosecution must prove beyond reasonable doubt that at some point during the defined period Maria Alimic and Klementina Alimic agreed to pursue the objective – that is they agreed to induce the clients of the business to provide sums of money with a view to using that money for their own purposes rather than for the specific client’s purposes, in circumstances where they were aware that if they acted in that way the economic interests of the clients would be put at risk.
Element Two – The Means
29The second element which the prosecution must prove is that at the time of entering the agreement, each of the accused intended to achieve that inducement of another or others by dishonest means (‘the means’).
30Whether particular means are properly characterised as dishonest is to be determined by application of the standards of ordinary, decent people. Ordinarily the means will be dishonest if they assert as true something which is false and which is known to be false or not believed to be true, or if they are means which the conspirators know they have no right to use or do not believe that they have the right to use.
31In the present case, as already identified, the means alleged by the prosecution are that Klementina Alimic and Maria Alimic would either represent to the clients that the money provided by a specific client would be used only for payments relevant to the purchase of that specific client’s property, when in fact the money would be used for the accused’ own purposes; or alternatively would conceal from the clients that the money provided by clients would be used by Maria Alimic and/or Klementina Alimic for their own purposes, rather than for use in relation to a specific client’s purchase of property.
32If I am satisfied that at the time of making the agreement Maria Alimic and Klementina Alimic both knew and agreed that such representations or concealments would be made, in circumstances where they each knew that the money would be used by one or other or both of them for their own purposes, then the means in question are properly characterised as dishonest and this element would be met.
Question Trail
33The elements can therefore be broken down into a series of questions as follows:
1. Did Maria Alimic and Klementina Alimic agree with each other to induce clients to provide money on the basis that money paid by each specific client would be used towards the purchase of the client’s own property, but in circumstances where the money would be used by Maria Alimic and/or Klementina Alimic for their own purposes?
Before I could be satisfied beyond reasonable doubt that Maria Alimic and Klementina Alimic entered into such an agreement, I would have to be satisfied beyond reasonable doubt that both Maria Alimic and Klementina Alimic, at the time of entering the agreement, knew and agreed that:
(i) Maria Alimic and/or Klementina Alimic would either represent to clients that the money provided by a specific client would only be applied towards the purchase of that specific client’s own property; or alternatively conceal from clients that the money provided by a specific client was not going to be dealt with in a manner where it would only be applied towards that specific client’s property transactions; and
(ii) rather than clients’ money being held purely for the purposes of paying for each specific client’s property needs, that one or other or both of Maria Alimic and Klementina Alimic would use the money provided by clients for their own purposes.
If I am satisfied beyond reasonable doubt that the answer to question 1 in relation to both Maria Alimic and Klementina Alimic is yes, then I must go to question 2. If I am not so satisfied, then both Maria Alimic and Klementina Alimic are not guilty of conspiracy to defraud.
2. At the time of making the agreement, did Maria Alimic and Klementina Alimic both intend that the agreement be carried out with the result that the clients economic interests would, or could, be imperilled? That is, at the time making the agreement,
(i) did Maria Alimic and Klementina Alimic both intend that the clients would provide money to Maria Alimic and/or Klementina Alimic to use for their own purposes; and
(ii) were Maria Alimic and Klementina Alimic both aware that there was a risk of economic loss to the clients as a result of their agreement to act in this manner?
If I am satisfied beyond reasonable doubt that the answer to question 2 in relation to both Maria Alimic and Klementina Alimic is yes, then I must go to question 3. If I am not so satisfied, then both Maria Alimic and Klementina Alimic are not guilty of conspiracy to defraud.
3. Does the agreement to induce clients to provide money on the basis that money paid by each specific client would be used towards the purchase of the specific client’s own property, but in circumstances where the money would be used by Maria Alimic and/or Klementina Alimic for their own purposes constitute the use of dishonest means? Dishonest is determined by the application of the standards of ordinary decent people. There is no issue here that such means, if proven, were dishonest.
If I am satisfied beyond reasonable doubt that the answer to question 3 is yes, then Maria Alimic and Klementina Alimic are guilty of conspiracy to defraud. If I am not so satisfied, then Maria Alimic and Klementina Alimic are not guilty of conspiracy to defraud.
The Evidence
34This trial lasted many months, eighty-five witnesses gave evidence, and a large number of documentary and audio exhibits were tendered. It is neither possible, nor necessary, to refer to the evidence of every witness or exhibit in this judgment. However, as already noted, I have considered all of the evidence in the course of my deliberations.
35In summarising the evidence, I will deal firstly with evidence which was given in respect of the establishment of the business, the general roles of various persons associated with the business, and explanations of what a sunduk is and how it works; and then deal with the remaining evidence in a largely chronological manner. Given that the main issues in dispute in this trial revolve around the inferences to be drawn from the evidence, rather than factual disputes within the evidence, I have, in those limited instances where a factual dispute needs to be resolved in order to identify the evidence I have relied upon in coming to my ultimate decision, endeavoured to deal with it in this summary of the evidence.
36I note that throughout the evidence Maria Alimic is also known, or referred to, as ‘Maria Kozina’ or ‘Maria’; Klementina Alimic is also known, or referred to, as ‘Tina’; and one of the witnesses – Martha Kek – is also known, or referred to, as Niabel Kek or Martha. For clarity, throughout this judgment, I will in most instances (unless citing a direct quote) be referring to Maria Alimic as either Maria Alimic or Maria; Klementina Alimic as Klementina Alimic or Klementina; and Martha Kek as Martha Kek or Martha; irrespective of which form of their name is used by the witness. I also note that during their evidence many of the witnesses of Sudanese or South Sudanese descent self-identified as being members of the ‘Sudanese community’, or the ‘South Sudanese community’ and used those phrases as well as ‘the community’ as descriptors. I have therefore adopted that language in this judgment. Finally, I note that the business had many clients, only some of whom have been named in the schedule to the indictment in this case. Throughout the trial, in order to collectively distinguish those clients named on the schedule to the indictment from those who do not appear on the indictment, the term complainant was used. I have, again, adopted this language for ease of reference in this judgment, and the use of the term complainant should not be thought to carry with it any bias or prejudgment of the issues.
Establishment of the Business
37Trevor Buultjens, who is a company director and owner of LoanMart, a brokerage company, gave evidence that he first met Maria Alimic at church in approximately 2012 or 2013.[4] He stated that in 2013, Maria became a staff member at his business – working for him on a casual basis doing administrative work and following up files at the bank.[5] He said that he had also employed Maria’s daughter Klementina on a casual basis up until the end of June 2015, with her role also being to do administrative work and to follow up with banks.[6]
[4]T286-287.
[5]T287.
[6]T288-300.
38In August 2014, Trevor Buultjens set up a satellite office of LoanMart in Deer Park.[7] Zlata Dizdarevic, a conveyancer who was the director of Hillside Property Conveyancing in Deer Park said that she knew Maria Alimic when she was working for Trevor in Geelong, and that Trevor and Maria continued working together in the office at Deer Park when it was LoanMart.[8] Ms Dizdarevic said that she was dealing with Maria Alimic when the office in Deer Park was operating as LoanMart because they had a mutual client, but that she would ordinarily deal with both Trevor and Maria.[9]
[7]T288.
[8]T734.
[9]T734.
39Darren Lambert, a real estate agent at Barry Plant, Deer Park – which was situated a few doors down from the LoanMart office in Deer Park, also gave evidence that he had dealings with Maria when she was working with Trevor at the Deer Park LoanMart.[10] Mr Lambert said that his understanding of Maria’s role at LoanMart was that she was working for Trevor, assisting him in helping clients get finance for properties and also running the office as Trevor wasn’t there very much.[11] He noted that he did not have much involvement with Trevor Buultjens but he understood that the thrust of the business was that Maria was getting the client and then Trevor was helping process the loan.[12]
[10]T688-691.
[11]T691.
[12]T692.
40Mr Lambert said that his relationship with Maria Alimic started when the business was operating as LoanMart. He said that if there was a client looking to buy a property, Maria would contact him, give him a budget for the client and he would go and show them houses within that budget. If the client liked the property they would put an offer on it and put down a small holding deposit, and then they would need to pay a 5% deposit on the property. Mr Lambert said there were no regular meeting times – he would go to the business most days as the coffee shop was next door and see how they were going. He said that if there was a client in Maria’s office looking to buy a house and it was located in his vicinity then Maria would call him and he would go and show them properties.[13] He estimated that he would drop in to the office four or five days per week.[14]
[13]T699-700.
[14]T708.
41Mr Buultjens said at some point in 2014 or 2015 he parted company with Maria, and Maria took over the office.[15] Ms Dizdarevic similarly noted that there was a split between Trevor Buultjens and Maria Alimic, and Maria took over the office with her own staff.[16] Mr Lambert noted that once Trevor was no longer there, Maria was the boss and was in charge of everything.[17]
[15]T290; 301.
[16]T734.
[17]T693; 708.
42In approximately August 2015, Maria Alimic approached Nemanja Durovic as a possible business partner.[18] She reached out to his father whilst Nemanja was in Europe, and on Nemanja’s return they had a meeting in the office at Deer Park.[19] Mr Durovic gave evidence that they didn’t really nail down an arrangement at the first meeting – he needed to go away and figure out an arrangement but ultimately they came to a mutual agreement that he would provide home and land packages to her clients that she was getting finance for.[20] Mr Durovic said that he was aware that Maria had worked with a builder previously – possibly Mega Homes – and that the original idea had been to replicate the previous arrangement.[21] However, Mr Durovic’s business was not capable of building that many houses and so, instead, the arrangement was that he would act as a middleman between Maria and the builders to service the selling of home and land packages for her.[22] Mr Durovic explained that Maria already had established clientele who required finance – predominantly Sudanese clients, albeit he did deal with one European couple[23] – and if they wished to build a house instead of purchasing an established home, then Maria would send them to him and he would organise a custom home and land package for them, and she would organise the finance.[24] He said that for his part of the transaction he never received funds directly from clients; in many cases he would pay the deposit money for land, and the fees for redesigning plans, out of his own pocket, and then he would be paid a commission fee by the builders once the home and land package settled.[25] He also noted that he was never involved in Maria’s side of the business – once a client had agreed on a design and a building contract was executed, he would hand the paperwork over and that would be the end of his work on the matter.[26]
[18]T318, 340.
[19]T318, 340.
[20]T320, 340.
[21]T347.
[22]T319; 347.
[23]T333.
[24]T321.
[25]T328, 329.
[26]T323.
43Mr Durovic said that in terms of the office arrangements, Maria paid the lease for the office,[27] whilst he paid for renovations to the office space.[28] Mr Lambert confirmed that the office was renovated when they rebranded to Zoran & Co – both extending and going further back. Mr Lambert said that his recollection was that after the renovations there was a reception area, two office spaces and then a further room at the back as well.[29] Mr Durovic said that he and Maria Alimic worked in separate office spaces,[30] and were effectively separate entities however he was content for the office to be rebranded as Zoran & Co – which was his business.[31] Mr Durovic said that as part of the rebranding of the office as Zoran & Co, he organised Zoran & Co business cards for himself, Maria and Klementina.[32]
[27]T321.
[28]T323.
[29]T693.
[30]T322.
[31]T323, 342, 348.
[32]T323.
Roles of Persons Associated with the Business
44A number of people worked for and/or with the business during the period of the alleged conspiracy. Evidence was given by multiple witnesses as to the roles of each of those persons as follows.
Maria Alimic
45Nemanja Durovic, Darren Lambert, Alki Thomaidis (a real estate who worked closely with the business for a period), Lynne Sheean (a receptionist for the business and Maria Alimic’s personal assistant) and Sanja Samardzic (another receptionist for the business), all gave evidence that Maria Alimic was ‘the boss’ and in charge of the business.[33]
[33]T349 (per Nemanja Durovic); T708 (per Darren Lambert); T874 (per Alki Thomaidis); T547 (per Lynne Sheean), and T563 (per Sanja Samardzic).
46In terms of Maria’s specific duties, Hari Christodoulou, a conveyancer who started working with the business and their clients in December 2016, gave evidence that her understanding of the business being carried on by Maria was that she would source properties for clients, arrange a loan and then settle the transaction.[34] Similar evidence was given by Darren Lambert who said that Maria was doing the same role at Zoran & Co as she was before, that is, trying to bring in clients to help them find houses or get loans to buy houses.[35] Lynne Sheean gave evidence that Maria was a referrer. She said that Maria would meet with clients; clients would talk to her about finance and mortgages; Maria would qualify them by making sure they had the correct documentation; and would then refer them to brokers, bank managers and other people who might assist.[36] Ms Sheean said that Maria Alimic also handled the money side of the business which included setting fees, collecting money from clients, and making decisions about where money was going and where it would be spent.[37] Alki Thomaidis confirmed that he dealt mostly with Maria for finance and deposit collection.[38]
[34]T653.
[35]T693-694.
[36]T366, 368, 511.
[37]T531, 532.
[38]T878.
47The evidence of each of these witnesses is consistent with how Maria Alimic described her own role in her first record of interview with police which was conducted in March 2016. She said her business was a broker referral service, that she was not a broker and had never stated that she was a broker;[39] and that she would do the finance by getting all the people working together and sending it off.[40]
[39]Ex KH (per Q & A 252-253 in transcript aide).
[40]Ex KH (per Q & A A1275-1276 in transcript aide).
Nemanja Durovic
48As previously noted, Nemanja Durovic commenced working alongside Maria Alimic in August 2015 and was the owner of Zoran & Co.
49Darren Lambert gave evidence that he did not understand the business relationship between Nemanja Durovic and Maria Alimic but was aware that the Zoran & Co branding belonged to Mr Durovic.[41] Each of Alki Thomaidis, Sanja Samardzic and Lynne Sheean stated in their evidence that Mr Durovic organised and sold house and land packages,[42] with Ms Sheean and Ms Samardzic confirming that Mr Durovic’s business was a separate business.[43] Ms Sheean said that if a person came to the business wanting house and land, then Maria Alimic would refer them to Mr Durovic. Mr Durovic would then talk to them about the house and land package, whilst Maria Alimic would talk to them about finance.[44]
[41]T707.
[42]T889 (per Alki Thomaidis); T366 (per Lynne Sheean); and T567 (per Sanja Samardzic).
[43]T567 (per Sanja Samardzic); and T511 (per Lynne Sheean).
[44]T511.
Klementina Alimic
50Klementina Alimic commenced working in the Deer Park office of the business in 2015. The evidence as to the date on which she commenced working there was varied.
51In her first record of interview, Klementina Alimic, said that she started working at the Deer Park office in 2014 and that during 2014 there was just her, her mother and Nemanja Durovic working there.[45] Given the evidence of other witnesses, including Nemanja Durovic, it is apparent that Ms Alimic was wrong about the year in which she commenced working with her mother at the Deer Park office.
[45]Ex KK (per Q & A 349-352, and 573-592 in transcript aide).
52Stefani Alimic, Klementina Alimic’s sister, gave evidence that Klementina was not working in the office when the business first started.[46] She said that she was aware that the business had grown quickly and so her mother had asked Klementina to help out to offer her stability.[47]
[46]T1017.
[47]T1018.
53Lynne Sheean gave evidence that Klementina Alimic commenced working in the business in October 2015, two weeks after she had commenced there.[48] Ms Sheean further stated that she had worked with Klementina at a jewellery shop before Zoran & Co and that Klementina continued to work at that jewellery shop for fifteen hours per week up until October 2015.[49] I note that Ms Sheean’s evidence on this latter point is consistent with SMS correspondence,[50] and bank statements showing the deposit of wages,[51] which indicate that Klementina Alimic was still working at the jewellers until at least mid-October 2015. However her contention that Klementina Alimic started working at Zoran & Co in mid-October 2015 is inconsistent with other evidence.
[48]T510.
[49]T531.
[50]Ex M68 on 23 July 2015 (UTC); 15 August 2015 (UTC); 9 September 2015 (UTC); and 9 October 2015 (UTC).
[51]Ex NF showing deposit of wages on 12, 19 and 26 August 2015; 2, 9, 23 and 30 September 2015; and 7, 14 and 21 October 2015.
54Sanja Samardzic said that Klementina was already working in the business when she started working there in August.[52] This accords with SMS communications between Ms Samardzic and Klementina Alimic on 4 August 2015 (UTC) where Ms Alimic says, in part, ‘[c]ool me and u working together my mum is taking a day off I have brokers to see tomorrow… come past mine around 9.30 and we will go with 1 car…’,[53] and further corresponds with the evidence of the complainants at trial, whom identify Klementina Alimic as being present in the office from August 2015 onwards.
[52]T564.
[53]Ex K121.
55On the evidence before the court, I accept that Klementina Alimic had commenced working with her mother in the business at the Deer Park office, in a part time capacity, by early August 2015, and that her hours at the Deer Park office increased after she finished working part time at the jewellers in mid-October 2015. However, no evidence was presented at the trial which either established, or would allow me to safely draw an inference, that Klementina Alimic was working in the business prior to August 2015.
56In respect of Klementina Alimic’s role in the business, Ms Alimic said in her first record of interview that her role was to help clients look for houses.[54] She further stated that she did not have a title, and that whilst her business card may describe her as the ‘Accounts Manager’, this was just a title which had been chosen for fun for when she handed out her business card to guys.[55] Nemanja Durovic confirmed in his evidence that Klementina Alimic’s title on her business card was tongue in cheek.[56] He said that, as far as he could tell, Klementina mainly assisted Maria with whatever she needed, but seemed to do the same for clients as he did, except with established homes.[57] He said that the main thing he saw Klementina do was assist clients by finding established homes on the internet,[58] and that she would sometimes drive clients to inspect established homes when they were looking for a house.[59] Ms Durovic said that in his view Klementina was an instruction-taker like others,[60] and he noted that when he gave his documents to Klementina or asked Klementina for updates, both his documents and his queries would always end up with Maria.[61]
[54]Ex KK (per Q & A 55-56 in transcript aide).
[55]Ex KK (per Q & A 61-62, 247, 398-405 in transcript aide).
[56]T323, 348.
[57]T324.
[58]T343.
[59]T324.
[60]T349.
[61]T350.
57Mr Durovic’s view of Klementina as one, among a number, of staff working for Maria Alimic was echoed in the evidence of Hari Christodolou,[62] Darren Lambert,[63] and Alki Thomaidis.[64] Each of Mr Lambert, Mr Thomaidis, Ms Sheean and Ms Samardzic also confirmed that, on their observations and interactions with Klementina, that Klementina Alimic’s main role was to assist clients to look for homes which were already built.[65] They variously noted that Klementina Alimic would also help clients to deal with real estate agents,[66] drive clients out to properties to see agents,[67] and on occasion deliver a deposit to a real estate agent.[68]
[62]T640.
[63]T708.
[64]T860.
[65]T721 (per Darren Lambert); T878 (per Alki Thomaidis); T510 (per Lynne Sheean); and T563 (per Sanja Samardzic).
[66]T533-534 (per Lynne Sheean); T580 (per Sanja Samardzic); T690 and 721 (per Darren Lambert); and T878 per Alki Thomaidis).
[67]T534 (per Lynne Sheean).
[68]T721 (per Darren Lambert), and T878 (per Alki Thomaidis).
Lynne Sheean
58Lynne Sheean was employed by Maria Alimic as a receptionist and personal assistant,[69] and answered to Maria.[70] Ms Sheean gave evidence that she started working for Maria Alimic in October 2015,[71] and was paid $1000 per week in cash.[72] She said that her role ordinarily entailed answering phones and taking appointments; photocopying documentation as directed by Maria; putting the documentation into files; arranging for files to be sent off to brokers or the banks; and liaising with solicitors and real estate agents if needed.[73] Ms Sheean said that she did not fill in documents or participate in client conferences.[74] However she agreed that on a few occasions she went to meetings at the bank with clients when they had been approved for their loan to make sure they understood what they were signing;[75] on one occasion took a client to see a house;[76] and on occasion would also forward fake payslips for clients from Davina (the woman who created them) to Maria.[77] Ms Samardzic additionally noted that as part of Ms Sheean’s role, she would see her running around a lot, organising appointments and trying to satisfy clients.[78]
[69]T366 and 510 (per Lynne Sheean); T167, 260 and 270 (per Graham Spillard); T324-325 and 343 (per Nemanja Durovic); and T694 and 708 (per Darren Lambert).
[70]T568 (per Sanja Samardzic).
[71]T365, 510.
[72]T367, 510.
[73]T367.
[74]T367.
[75]T513, 514
[76]T517.
[77]T521, 532.
[78]T568.
Sanja Samardzic
59Sanja Samardzic gave evidence that she started undertaking work experience as a receptionist at Zoran & Co in August 2015.[79] Each of Nemanja Durovic,[80] Darren Lambert,[81] and Alki Thomaidis[82] similarly gave evidence that Ms Samardzic was the receptionist. Ms Samardzic said that she got the job there because she was friends with Klementina Alimic. Ms Samardzic said that she was not paid a regular wage but was paid for petrol or food from time to time by Klementina.[83] She said that she was at the office between 3 and 5 days in a fortnight.[84]
[79]T561.
[80]T325.
[81]T708.
[82]T889.
[83]T561-562.
[84]T564.
60Ms Samardzic gave evidence that her role entailed greeting clients,[85] and occasionally taking clients to the bank.[86] She also said that when the Noble Park office opened in 2016, she went there with Klementina Alimic on one or two occasions and helped by collecting contact details from clients and assisting clients to look for houses.[87] In her first record of interview, Klementina Alimic similarly said that Ms Samardzic’s role included answering telephones, making appointments, driving clients to sign loan documents and driving clients to house inspections.[88]
[85]T563.
[86]T574.
[87]T581, 582.
[88]Ex KK (per Q & A 92-95 in transcript aide).
Martha Kek
61Martha Kek was referred to by numerous witnesses as a woman from the Sudanese community who either worked for, worked alongside, or assisted, Maria Alimic in the business. Martha Kek gave evidence on the trial and essentially maintained that her connection with the business was solely on the basis of being a client. Her evidence in this regard was at odds with the evidence of the vast majority of the witnesses in the trial, and I do not accept that her connection to the business was so limited.
62Based on an analysis of the evidence I find that Martha Kek’s connection with Maria Alimic and the business commenced at some point prior to 24 August 2015.[89] From that time on Ms Kek was present at the Deer Park office almost every day.[90] Ms Kek’s various roles within the business included referring clients to the business;[91] acting as an interpreter, assisting Maria Alimic and others including Nemanja Durovic, to communicate with clients and vice versa;[92] sitting in on meetings between Maria Alimic or Klementina Alimic and clients;[93] making and receiving phone calls to and from clients about their transactions with the business;[94] encouraging clients to trust Maria Alimic and make payments, or additional payments to her – including during meetings at the African Nile restaurant in Noble Park;[95] being witness to payments being made by clients;[96] assisting in collecting and/or counting monies paid by clients;[97] taking clients to look at blocks of land and/or houses;[98] and on one occasion taking a client to the bank.[99]
[89]See [119] below. See also T585 (per Sanja Samardzic); and T708 (per Darren Lambert).
[90]See, eg, T512 (per Lynne Sheean); T2196 (per Alam Domkoc); T914 (per Damjan Lukic).
[91]See, eg, T367 and 512 (per Lynne Sheean); T575-576 (per Sanja Samardzic); T1210, 1220, 1221 (per Amani Badawi); T1494 (per Achok Dut); T1862-1863 (per Martha Bup); T1873 (per Laade Adel); T1984-1985 (per Kuei Ariik); T2207 (per Rebecca Tuach); T2467-2469 (per Nyadow Wur); and T3921 (per Deng Piok). Cf T2610 and 2613 (per Martha Kek).
[92]See, eg, T335-336 (per Nemanja Durovic); T368 and 512 (per Lynne Sheean); T571 and 575 (per Sanja Samardzic); T694 (per Darren Lambert); T1202 (per Mary Ater); T1265 (per Aguel Nyieg); T1494 (per Achok Dut); T1566, 1573-1575 (per Agel Achen); T1647 (per Amel Doot); T1893 (per Laade Adel); T1917 (per Mary Alier); T2042-2043 (per Dut Ungom); T2272 (per Nyaboth Koang) and T2472 (per Nyadow Wur). Cf T2610, 2616, and 2624 (per Martha Kek).
[93]See, eg, T106-1065 (per Libena Wani); T1080 (per Lola Taban); T1494 (per Achok Dut); T1566, 1573-1575 (per Agel Achen); T2189 (per Alam Domkoc); T2561 (per Nyachol Nyouk); T2376 (per Niya Kuku) and T3922 (per Deng Piok). Cf T2624 (per Martha Kek).
[94]See, eg, T2196-2197 (per Alam Domkoc); T2472 (per Nyadow Wur); and T2700 (per Atong Duang). Cf T2635 (per Martha Kek).
[95]See, eg, T1080 (per Lola Taban); T1373 and 1400 (per Akur Bar); T1634 (per Amel Doot); T1701-1702 (per Tereza Audo); T1720 (per Acuil Mawien); T2173 (per Mary Allaz); T2197 (per Alam Domkoc); T2268 (per Nyaboth Koang); T2403-2404 (per Nyachom Luk); T2441 (per Nyachaot Mut); T2459 and 2467 (per Nyadow Wur); and T2512-2513 (per Nyadak Gatkuoth). Cf T2610, 2613 and 2624 (per Martha Kek).
[96]See, eg, T372 and 537 (per Lynne Sheean); T2331 (per Nyadak Gatkuoth); and T2702 (per Atong Duang). Cf T2625 (per Martha Kek).
[97]See, eg, T548-549 (per Lynne Sheean); and T2561-2563 (per Nyachol Nyouk). Cf T2610, 2625 (per Martha Kek).
[98]See,eg,T1622 (per Abouk Garang); T1948 and 1950 (per Alam Domkoc); and T3923 (per Deng Piok). Cf T2610 and 2625 (per Martha Kek).
[99]T2700 (per Atong Duang). Cf T2625 (per Martha Kek).
63Ms Sheean gave evidence that additionally, Martha Kek would have meetings with Maria Alimic, and two other Sudanese ladies – Rose Deng and Atong Ayii – for which nobody else was allowed to be present.[100] I accept that this also occurred, albeit there is no evidence upon which I could draw an inference as to what occurred during those meetings.
[100]T512, 519 (per Lynne Sheean). Cf T2610 (per Martha Kek).
Rose Deng
64Like Martha Kek, Rose Deng was referred to by a number of witnesses as a woman from the Sudanese community who either worked for, worked alongside, or assisted, Maria Alimic in the business. Ms Deng also gave evidence on the trial and downplayed her connection with the business in certain respects. On an analysis of the evidence I accept that Ms Deng first came into contact with Maria Alimic and the business in approximately May 2015.[101] I further accept that initially Ms Deng would visit Maria’s office twice or sometimes three times per week, and then more often from the latter part of 2015 onwards.[102] Ms Deng undertook various tasks at the business including bringing clients in to the business;[103] making referrals to the business;[104] acting as an interpreter;[105] assisting in collecting or counting monies paid by clients;[106] calming people down who were arguing;[107] taking clients to see houses;[108] and encouraging clients to make payments to Maria Alimic.[109]
[101]See [78] below. See also T708 (per Darren Lambert).
[102]T2662 (per Rose Deng); and T512 (per Lynne Sheean).
[103]See, eg, T367 (per Lynne Sheean); and T571, 575 (per Sanja Samardzic).
[104]T1493-1494 (per Achok Dut); T2104 (per Nyakuma Rang); and T2686 (per Rose Deng).
[105]See, eg, T368 and 512 (per Lynne Sheean); T571, 575 (per Sanja Samardzic); T694 (per Darren Lambert); T1494 (per Achok Dut); T1566, and 1573-1575 (per Agel Achen)
[106]See, eg, T548-549 (per Lynne Sheean).
[107]T1693 (per Tereza Audo); and T2663 (per Rose Deng).
[108]See, eg, T1647 (per Amel Doot).
[109]See, eg, T1373 and 1400(per Akur Bar); and T2512-2513 (per Nyadak Gatkuoth).
65Ms Sheean gave evidence that, additionally, Rose Deng would have meetings with Maria Alimic, Martha Kek and Atong Ayii – for which nobody else was allowed to be present.[110] As I have already noted in respect of Martha Kek, I accept that this occurred, albeit there is no evidence upon which I could draw an inference as to what occurred during those meetings.
[110]T512, 519 (per Lynne Sheean). Cf T2610 (per Martha Kek).
Asunta Weil
66Asunta Weil both gave evidence at trial, and was referred to by other witnesses[111] at trial as someone who introduced them to Maria Alimic and her business. Ms Weil gave evidence that she is married to Michael Bol who is a bishop in the community. In 2016 she was running a family day care business.[112] Ms Weil said she first met Maria Alimic in June or July 2015 after one of her staff, Elizabeth Nhial, told her about Maria.[113] Ms Weil said that the first time she met Maria was when she went to her office in Deer Park with her husband, Elizabeth and another woman called Suzie to talk about buying land.[114] Ms Weil commenced her relationship with Maria Alimic as a client, initially seeking to purchase land, and then ultimately successfully purchasing a house in Hillside which settled on 26 October 2015.[115] However shortly into her relationship with Maria, she also became involved in loaning money to other members of the Sudanese community, and to Maria Alimic, for the purposes of property transactions.
[111]See, eg, T1293-1294 (per Nyawarga Paguer); T2057-2058, 2074 (per Nyakuma Rang); T2217 (per Rebecca Tuach); T2265 (per Nyaboth Koang); T2423-2424 (per Nyamal Mun); and T2863 (per John Deng).
[112]T593.
[113]T595, 827-828.
[114]T595, 596.
[115]T819, 841.
Other Family Members and Friends of Maria Alimic and Klementina Alimic
67Evidence was received throughout the trial both from, and in relation to, a number of other family members and friends of Maria Alimic and Klementina Alimic who were not directly involved in the business.
68Stefani Alimic is the daughter of Maria Alimic and the sister of Klementina Alimic. She finished Year 12 in 2015 and commenced university in Bendigo in 2016. Her then boyfriend, Ryan Burt, also finished Year 12 in 2015 and commenced university in Bendigo in 2016. Both Stefani Alimic and Ryan Burt gave evidence in the trial.
69Niko and Ana Kozina are the parents of Maria Alimic and the grandparents of Klementina Alimic. They lived at 3 Stapledon Court in Corio, an address which also featured in the evidence. Mr and Mrs Kozina did not give evidence at trial.
70Mark Kozina is the brother of Maria Alimic and the uncle of Klementina Alimic. He gave evidence at trial.
71Graham Spillard is a ‘friend’ of Maria Alimic. He said that he met Maria Alimic in approximately 2008 through a dating website.[116] According to Mr Spillard, he went out only a few times with Maria Alimic, but then kept in touch over the years.[117] He said that up until the latter part of 2015, they had only been messaging each other once every 12-18 months.[118] However they started having regular contact in the second half of 2015.[119] As at October 2015, Mr Spillard had a property in Queensland that he had renovated and was looking to sell.[120] He said that he showed Maria Alimic photos of the renovations that he had done and Maria floated the idea of undertaking some projects together.[121] Mr Spillard gave evidence at trial, and a significant number of SMS communications between himself and Maria Alimic were also tendered. Where relevant, I have addressed the communications between Graham Spillard and Maria Alimic, and the projects they sought to undertake together, in the chronological summary of the evidence below.
[116]T164, 258.
[117]T165, 258.
[118]T165, 258.
[119]T258.
[120]T166.
[121]T168.
Sunduk
72‘Sunduk’ was a concept and term which came up on a number of occasions throughout both oral and documentary evidence in this trial.
73Kot Monoah, an Australian solicitor and former Chairman of the South Sudanese Community Association in Victoria, was called by the prosecution to explain what a sunduk is and how it works. Mr Monoah gave evidence that ‘Sunduk’ or ‘Sundu’ is a savings system whereby a number of people come into a group and each pay x amount of dollars each week. There is a raffle and each of the people participating in the sunduk receive a number which allocates them priority. At the end of the first week the person with the highest priority number receives the full amount of money deposited by the group that week. Then each week thereafter, the person with the next highest priority number receives the full amount of the week’s money, and so on. Mr Monoah explained that the main rules around a sunduk are that you have to put money in, and you have to be a credible person who will commit to payment. Mr Monoah said the advantages of a sunduk are that it teaches people strict budgeting discipline, and can help them to pay a deposit or clear a debt where they might not otherwise be able to do so. Mr Monoah also explained that it is an unwritten rule of the sunduk that the administrator of the sunduk will change the priority number for a member of the group if they have a pressing condition and need the money sooner. Such a person would be swapped with someone who had a higher priority number but a less pressing need.[122]
[122]T790-792.
74I note that each of Darren Lambert, Sanja Samrdzic, Lynne Sheean and Graham Spillard gave evidence that they had heard about sunduk through their connection with the business. Darren Lambert said that he became aware of what a sunduk was and how it worked through Maria Alimic and possibly also Asunta Weil, but was never made aware that money for any transaction he was involved in had originated from this source.[123] Both Sanja Samrdzic and Lynne Sheean said they had heard the term sunduk from Martha Kek and Rose Deng.[124] Ms Sheean said that whilst Martha and Rose explained to her what a sunduk was, they did not speak about a specific sunduk, and she was unaware of a sunduk being run out of the Deer Park office.[125] Graham Spillard said that he had heard about a sunduk and how it worked from Maria Alimic in late December.[126] However, like Darren Lambert, Mr Spillard said that Maria Alimic never specifically said that the money in any of the transactions she was working on came from a sunduk.[127]
[123]T702, 711, 723.
[124]T577 (per Sanja Samardzic); and T518 (per Lynne Sheean).
[125]T519.
[126]T262.
[127]T278.
July 2015
75I turn now to deal with the remaining evidence in a largely chronological order – focusing on transactions with complainants and other events of significance which occurred on a month by month basis.
Nyawarga Paguer – Payment of $7000
76Nyawarga Paguer gave evidence that as at July 2015 she was the owner of a hairdressing business in Noble Park.[128] She said that she heard about Maria Alimic through members of her community, including Asunta Weil.[129] Ms Paguer said that she had been told that Maria was a broker and assisted people to get houses. She said that she had seen members of the community go to her.[130]
[128]T1293.
[129]T1293-1294.
[130]T1294.
77Ms Paguer said that she went to see Maria in Deer Park in July 2015. She said that Maria told her that she could assist her with getting a bank loan, and Maria told her to bring in $7000 to start the process.[131] Ms Paguer said that she had money in her hand because she had already heard through the community that everyone who went to Maria needed to bring the money with them.[132] She said that she was paying the money to show that she was keen to get a house and to start the process to look for land. She did not know that the $7000 included Maria’s fees.[133] Ms Paguer said that she paid the money to Maria, and Maria gave her a stamped and signed receipt.[134] Maria asked her to bring in the rest of the money because the total amount of the deposit would be $25,000. Maria also told her to come back when she had found a property that she was interested in and that she would help her to borrow money from the bank.[135]
[131]T1296
[132]T1296.
[133]T1325-1326.
[134]T1296.
[135]T1298; 1326.
Rose Deng – Payment of $60,000
78Rose Deng gave evidence that she had previously bought a house in Derrimut in 2007 and, in 2015, she thought she might like to buy another house.[136] Ms Deng said that Monica Majak told her about a lady called Maria who could help her in buying a house. She also said that aside from Monica Majak she was aware of 12 to 14 people who had got houses through Maria.[137] Ms Deng said that she went, with Monica, to see Maria at her office in Deer Park some time between May and June of 2015.[138] Ms Deng said that she asked Maria what she needed to do to get a house and Maria told her to go to the real estate, look for a house, and when she had found a house and got the papers, to give the paperwork to her.[139] On 21 May 2015, Ms Deng signed a contract of sale for a house in Deer Park and paid a holding deposit of $1000.[140] She said that the real estate agent gave her the papers and she passed them on to Maria, and that Maria told her that there will be money that will be first paid for the owner of the house, and then from there the approval would be issued for the house.[141]
[136]T2649.
[137]T2679.
[138]T2650, 2658.
[139]T2651.
[140]T2651, 2658; Ex M65.
[141]T2651.
79Ms Deng agreed that she then visited Maria Alimic’s office ‘lots of times’ over the next few months – saying that she was sometimes there twice or three times per week.[142] Ms Deng said that on one occasion when she went in to Maria’s office she paid Maria $60,000 in cash. Ms Deng said that the $60,000 was for Maria to pay in order for her to get the house.[143] Ms Deng said that the money she gave to Maria came from a payout from a sunduk she had been part of prior to meeting Maria.[144] Ms Deng said that after paying this money, she left and went overseas, not returning until August 2015.[145]
[142]T2661-2662.
[143]T2652.
[144]T2664.
[145]T2652.
80It is apparent from documents tendered on the trial that work was being done throughout July on Rose Deng’s file to rectify some issues which were impacting upon the purchase of the property. This included transfer of land forms needing to be completed to remove Ms Deng’s husband from the title of her existing property, nomination forms needing to be completed to transfer the purchase of the property from Ms Deng to her son, dealing with caveats over Ms Deng’s existing property, and fending off threats from the vendor’s solicitors to serve a rescission notice.[146]
[146]Ex K95.
Elizabeth Nhial – Payment of $7000
81Elizabeth Nhial gave evidence that in 2015 a friend of hers, named Susan, told her about a lady called Maria who helps people buy houses.[147] Ms Nhial said that she was working in family day care at the time as a field worker and that her boss was Asunta Weil.[148] Ms Nhial said that she went to see Maria Alimic in her office with her friend Susan. She said that she told Maria that she wanted to buy a house, and Maria replied that if she had money then she could get a house. Maria told her to bring $7000 in total; $5000 was to be used for a deposit for the house and to ‘do the process’ and $2000 to clear bad credit.[149] Ms Nhial said that Maria did not tell her that she would be charging a fee for her service, or give her a document setting out how much she would charge for her work.[150] However she agreed that at committal she had said that she understood that some of the $7000 was for Maria and that some of it would go to Mega Homes; and conceded that maybe there was a fee, but she didn’t know.[151]
[147]T1662-1663.
[148]T1662.
[149]T1663.
[150]T1672, 1676.
[151]T1674.
82Ms Nhial said that she went back to see Maria on a second occasion to deposit the money.[152] She said that on this occasion she went to the office with Asunta Weil because she had borrowed the money from Asunta, however she saw Maria alone and Asunta waited outside.[153] Ms Nhial said that she paid Maria $7000 in cash and was given a receipt by Maria.[154] The receipt dated 17 July 2015 had a notation on it that the money was for ‘house and land package’.[155] Ms Nhial stated that when she asked, Maria told her that if her application was unsuccessful then she would return her money. However if the application was successful then she would give the money to the builder.[156]
[152]T1663.
[153]T1663-1664.
[154]T1664-1665.
[155]Ex DB; Ex LJ.
[156]T1666.
83Asunta Weil confirmed in her evidence that she had attended at Maria’s office with her husband as well as Elizabeth Nhial and Suzie on this second occasion, and had loaned $7000 to Elizabeth for the purposes of her purchase of land.[157] Ms Weil said that this was the second time she had met with Maria – and that she had been present for a previous meeting with Maria, where herself, her husband, Elizabeth and Susan had all been present.[158] Ms Weil said that she also paid Maria Alimic $14,000 on this day for house and land packages she was seeking to purchase for herself and her husband.[159]
[157]T596, 598-599.
[158]T595-598; 828.
[159]T599, 830; Ex LJ.
84Ms Nhial gave evidence that, after paying her money, Maria organised an appointment for her to meet with Wally from Mega Homes. She met with Wally at Maria’s office in Deer Park.[160] Ms Nhial said that she ended up getting the house and land package through Mega Homes.[161] She said she signed some papers with Mega Homes and they organised a loan for her through the bank.[162] Ms Nhial said that Maria Alimic paid Mega Homes a deposit of $2500 in relation to her transaction but not the full $7500 required for the deposit.[163] Ms Nhial said that she rang Maria Alimic and spoke to her about this, and was told by Maria that she would call Mega Homes as she had deposited the full amount with them already.[164] Ms Nhial said that she rang Maria maybe four times and Maria kept telling her not to worry and that she would call her back.
[160]T1667.
[161]T1669.
[162]T1667, 1669.
[163]T1667, 1669.
[164]T1668.
85Ms Nhial said that when she last spoke to Maria Alimic, Mega Homes had not started building her house. They commenced the foundation in 2016 and completed the building in 2017.[165] Ms Nhial said that she never received her $4500 back from Maria, and that Maria did not ever undertake a credit check as she had told Ms Nhial that Mega Homes would do that on her behalf.[166]
[165]T1669-1670.
[166]T1669, 1676.
Nyaboth Koang – Payments of $1000 and $6000
86Nyaboth Koang gave evidence that in 2015 she worked in family day care with Asunta Weil.[167] Ms Koang said that Asunta told her about a mortgage broker named Maria who helps Sudanese people. Asunta gave her Maria’s name and phone number.[168] Ms Koang said that she rang Maria Alimic, made an appointment, and went in to see her at Deer Park.[169] She said that whilst she was in the office and waiting for Maria, she met Martha Kek who told her that Maria is a good person and can help you find a mortgage.[170] Ms Koang also accepted that at the committal hearing of this matter, she had been truthful when she said that Martha had also told her that if she did not ‘have a good job where you may have a payslip, Maria would have help you get a payslip.’[171]
[167]T2268.
[168]T2265.
[169]T2265.
[170]T2268.
[171]T2271-2272.
87Ms Koang said that Martha came into the office when she was speaking with Maria to help interpret.[172] Maria told Ms Koang that if she gave her $7000, Maria would guarantee her a mortgage where her house would be built and finished. Maria said she would apply for a loan for her, would help her to find a house or land to buy, and would connect her with contacts she had in the real estate industry. Maria said that the $7000 included her fee for helping in these ways.[173]
[172]T2272.
[173]T2272.
88Ms Koang said that she gave Maria Alimic $1000 at the first meeting and received a receipt.[174] She then returned on 21 July 2015 and gave Maria a further $6000, for which she also received a receipt.[175] Ms Koang said that Maria told her that the $7000 was for a deposit and that a broker would secure a loan so that she could buy the house.[176]
[174]T2265-2266; Ex GG; Ex LJ.
[175]T2266, Ex GH; Ex LJ.
[176]T2267.
89Ms Koang gave evidence that after she had paid Maria Alimic she received a call from the real estate agent who said that Maria had asked them to call her. Maria also introduced her to someone from Mega Homes. Ms Koang said that she did not sign any documents to buy land – she said that she was told she could get land in Mentone West, but it didn’t happen.[177] She also said that she spoke to Mega Homes in 2016 but she did not sign with them.[178] Ms Koang stated that ultimately although she went to Maria and asked if she could repay her money, she never got her money back.[179]
[177]T2274.
[178]T2273.
[179]T2274, 2267.
Mary Alier – Payment of $7000
90Mary Alier gave evidence that in July 2015 she heard about a lady called Maria who could help people get a house and land so, on 28 July 2015, she went with her friend Anna Maleith to meet Maria Alimic.[180] Ms Alier said that when she met with Maria, there were only three people in the room – herself, Maria and Anna Maleith who was interpreting.[181] Ms Alier could not remember giving evidence previously, at committal, that the three people in the room were herself, Maria and Martha Kek;[182] but agreed that Martha would help interpret whenever Martha was at the office.[183] Ms Alier said that in the meeting she told Maria Alimic that she wanted Maria’s help to get a house, and that Maria had said that she needed to pay $7000 if she wanted her help. She said she was told by Maria that the $7000 would be a deposit for which she will look for the land.[184] Maria also told her that she would organise for someone to build a house on the land, would help apply for a loan with the bank, and that the $7000 would include her fee for doing those things.[185] Ms Alier said that on that day she paid Maria Alimic $7000 in cash and was given a receipt.[186] The receipt identified the money as being for ‘house & land package’.[187] Ms Alier said that it was then some months later that Maria asked her to go and see some land in Tarneit.[188]
[180]T1903-1904.
[181]T1914.
[182]Ex M34 – committal transcript; T1917
[183]T1917.
[184]T1903, 1919.
[185]T1919.
[186]T1904.
[187]Ex ER, Ex LJ.
[188]T1906.
John Deng – Payment of $10,000
91John Deng made a statement which was read, by consent, into the evidence by the prosecution.[189] A transcript of some of the evidence given by Mr Deng at committal was also tendered by consent.[190] Mr Deng stated that whilst he and his wife were living in Sydney, they heard about Maria Alimic from his sister-in-law Asunta.[191] On 31 July 2015, Mr Deng and his wife were in Melbourne and went to Maria’s office to speak to her.[192] Whilst Mr Deng said in his statement that he did not have an interpreter for that meeting,[193] at committal he gave evidence that Asunta came into the little office because they were finding it hard with the language, and that she was speaking to them in Dinka and to Maria in English.[194] Mr Deng stated that he paid $10,000 in cash to Maria on this day and she gave him a receipt. Two receipts for $5000 were tendered as evidencing this payment – one made out in the name of Arop Mayen[195] and the other in the name of John Deng Arup.[196]
[189]T2863-2865.
[190]Ex KD.
[191]T2863; Ex KD p1648.
[192]T2863.
[193]T2863.
[194]Ex KD, p1651.
[195]Ex JY; Ex LJ.
[196]Ex JZ; Ex LJ.
92I note that in her evidence, Ms Weil said that on 31 July 2015, Maria Alimic came to her home in Taylor’s Hill to meet with Arop Mayen – who Ms Weil said was a friend of hers. Ms Weil said that whilst Maria was at her house, Arop Mayen paid Maria $5000 towards a house and land package, and Ms Mayen was given a receipt.[197] This receipt is the same receipt produced as being for part of the payment made by John Deng. Given that the receipt was tendered by agreement of all parties as evidencing part of the payment made by Mr Deng, and given the correlation in dates and names on the receipts, I accept that this payment was made to Maria Alimic in respect of Mr Deng’s transaction on 31 July 2015, albeit not in the exact manner outlined in Mr Deng’s statement.
[197]T815, 838; Ex LJ.
Other Dealings between Asunta Weil and Maria Alimic
93Ms Weil gave evidence that when Maria Alimic came to her home on 31 July 2015 she also paid her $10,000 in cash and was given a receipt.[198] Ms Weil said that she had paid the money to Maria on behalf of her friend Nyador who lived in Cranbourne.[199] Ms Weil said the money was her own money and she had a personal arrangement with Nyador for the money to be repaid at some point.[200]
[198]Ex LJ.
[199]T815, 837.
[200]T816, 838-839.
Alleged Betterment – Renovations for Parents at 3 Stapledon Court, Corio
94Sales orders, dated 10 July 2015, for a purchase from ‘The Good Guys’ were tendered.[201] The purchase was of a TV, digital antenna and a four outlet surge protector in the name of Maria Alimic, with a delivery address of 3 Stapledon Court, Corio. According to the sales orders which were tendered, both a deposit of $340, and the outstanding amount of $1717 were paid to the Good Guys in cash on 10 July 2015. There is no evidence as to where the cash used to fund the purchase originated from.
[201]Ex LG (part).
Alleged Betterment – Other Items (Curtains)
95Two tax invoices dated 31 July 2015 pertaining to the purchase of six curtains and a blind were tendered through the informant. Both were made out to Ana Kozina of 3 Stapledon Court, Corio. The first showed a payment of $1500 towards the $2940 total had been paid. The second showed that the entire amount had been paid. I note that there is no evidence as to what form this payment took. Further, there is no evidence to suggest that anyone other than Ana Kozina made the payment.
Communications between Accused
96Consistent with my earlier finding that there is no evidence from which I could be satisfied that Klementina Alimic was working in the business prior to August 2015, I note that there was no evidence of any communications between the accused for the month of July.
August 2015
Nyachom Luk – Payment of $7000
97Nyachom Luk gave evidence that in 2015 she was interested in purchasing a house. Her cousin, Nyadak, told her about someone called Maria who would be able to help her buy a house, despite her only having a part-time job.[202] Ms Luk said that she made an appointment to meet with Maria Alimic and went to see her at her office in Deer Park.[203] She said her first question to Maria was ‘I am working a part time job, how would you be able to help me have a loan?’, and that Maria replied that she would be able to help with that because ‘this bank is a church bank where they are happy to give people money if you are working part time.’[204] Maria asked her to provide her payslip and to pay $7000 to start the process.[205] Ms Luk said that she paid $7000 in cash and received a receipt.[206] The receipt, dated 2 August 2015, had a notation on it that the money was for ‘house and land package’.[207]
686Ajulu Oman made two payments to Klementina Alimic in February 2016 totalling $15,000. Prior to the first payment being made, Klementina Alimic represented to Ms Oman that the $15,000 would be for the purpose of helping her apply to the bank for a loan and would also include a fee for helping her to find the house and put the paperwork through. She also told Ms Oman after the second payment that the money would be used to ‘put in the bank’. Ms Oman made the second payment of $10,000 on 26 February 2016, and in the aftermath of that payment Klementina Alimic showed her a house on the computer and sent her two text messages in relation to houses she might like to look at. Klementina also made contact with both Nemanja Durovic and a real estate agent in relation to finding either an established house or a house and land package for Ms Oman. Whilst Ms Oman did not end up getting a house or her money back, her payments were both made only two weeks prior to the office closing. I will return to my conclusion on this representation in due course.
687Nyachout Mut paid $22,000 to Klementina Alimic following on from a representation by Klementina Alimic that $20,000 would be used for a deposit and the other $2000 would be a charge. After Ms Mut had paid the money Klementina Alimic remained in touch with her and arranged various appointments for Ms Mut to look at houses and land. Whilst Ms Mut did not get a house or land and did not get her money back from Klementina Alimic, the last appointment arranged by Klementina Alimic for her to look at land was for either 7 March or 9 March 2016 –being the day before or the day after Maria Alimic was arrested and the office was closed. Ms Alimic in her record of interview conceded that she had not refunded Ms Mut’s money, and further said that she had given the money to Rose Deng in circumstances where she had not told Ms Mut that the money would be given to Ms Deng. She said she assumed that Ms Mut would already know, from Nyawarga Paguer, that her money would go into a community fund. Even accepting Ms Alimic’s version of events in her record of interview, that she had made this particular assumption about the knowledge of complainant, it does not detract from the fact that the specific representation made by Ms Alimic was at odds with what she assumed Ms Paguer had told the complainant previously. It is the content of Ms Alimic’s actual representation which is important, and her representation was at odds with what Ms Alimic knew, on her version of events, that she was going to do with the complainant’s money. It was also at odds with what she told the complainant she was going to do. I am of the view that in respect of this particular transaction Klementina Alimic did make a representation inducing the payment of money on the basis that it would be used for the purpose of Ms Mut’s own property transactions, but in circumstances where the money was to be used for other purposes.
Betterment – Klementina Alimic
688There were no items of betterment alleged against Klementina Alimic in the period between mid January 2016 and 8 March 2016.
Klementina Alimic’s Involvement in Financial Aspects of the Business
689Klementina Alimic’s involvement in and knowledge of the financial aspects of the business are a critical factor in determining whether Klementina Alimic’s representations to Nyachol Nyouk, Nyadak Gatkuoth, Nachol Kit, Nyadour Gach, and Ajulu Oman were made in circumstances where at the time of making the representation, Klementina Alimic knew that the money would be used for other purposes, rather than in respect of the client’s own property transactions.
690During the period between mid January 2016 and 8 March 2016, there was evidence of Klementina Alimic exerting control over money at times, and also having some knowledge of the state of bank accounts connected to the business. This is apparent in Klementina Alimic’s movement of some of the funds she received for fees from clients into her cheque account rather than the business account and also through a number of exchanges between her and her mother. Some particular examples of this were: on 22 January 2016 where Klementina Alimic, on being asked, told Maria that the balance of the business account was ‘-$124,000+’; on 3 February 2016 where Maria asked Klementina to ‘give Baka $20k’ and Klementina told her that she could not because she had given the hairdresser $4k, paid Sanja’s pay and had $2k for herself – a response which earned a ‘Wtf’ from Maria; on 18 February 2016 where Maria asked Klementina to pay Lynne’s wage and their credit cards and Klementina told her mother that she would pay the workers and then what’s left; and on 29 February 2016 where Klementina emailed Maria to tell her that she had received $10,000 and how she had distributed part of it, prior to the remainder going to Maria.
691It is also apparent that, in the period between mid January 2016 and 8 March 2016, Klementina Alimic did have knowledge of the fact that there were financial issues in the business. On numerous occasions in that period Maria Alimic contacted Klementina Alimic asking her to find money and/or clients urgently, or telling her that she needed money urgently. Examples of this were on 1 February 2016 – where Maria asked Klementina to talk to Martha and Rose to find money and Klementina told her ‘we are trying’; 8 February 2016 – where Maria contacted both Klementina Alimic and Nemanja Durovic and asked them to chase up money urgently; 9 February 2016 – where Maria told Klementina she urgently needed money and asked Klementina to call ‘the hairdresser’; 15 February 2016 – where Maria told Klementina that she needed $45k by the next day; 16 February 2016 – where Maria told Klementina she needed $7000 urgently; 17 February 2016 – where Maria told Klementina she needed money by 4pm as the bank would close, and Klementina replied that she had ‘20’ and would have more tomorrow; 1 March 2016 – where Maria told Klementina she needed money urgently and it was life or death; and 2 March 2016 – where Maria asked Klementina how much she got as she needed $50k urgently.
692Additionally Klementina Alimic sent messages to her mother where she raised concerns about certain aspects concerning money and finances. Examples of this included on 21 January 2016 where Klementina said to Maria that she (Maria) just needed to get her money back; and on 1 February 2016 where Klementina told Maria to stop promising people and noted that there were many shortfalls.
693It is notable however from all of these examples, that whilst Klementina Alimic had some knowledge of the financial situation, it was Maria Alimic who was in ultimate control. On each occasion that the urgent need for money arose, it was Maria Alimic who made the demand, and in many cases the demand for money was not only made to Klementina Alimic, but also to other people working either with or within the business. By contrast, the only demands made by Klementina Alimic for money were in respect of trying to chase up pay for herself and other employees of the business. Where Klementina Alimic did raise an issue with her mother about her mother’s business practices or finances, she was told, in no uncertain terms, to back off or leave her alone. Whilst Klementina Alimic on occasion received money from clients, the evidence shows that on almost every occasion the money ended up back in the Deer Park office and under Maria Alimic’s control. Whilst the business account was in Klementina Alimic’s name, invariably it was Maria Alimic who was writing cheques from the account. Where Klementina Alimic made referrals to brokers, lawyers and conveyancers, on almost every occasion Maria Alimic and Lynne Sheean were the people who ended up communicating with the third parties about approval of loan applications and extensions of settlement dates, not Klementina Alimic. Maria Alimic was also the one who was in control of all of the settlements as reflected in Klementina’s message to Maria on 17 February 2016 accusing Maria of not paying her (Klementina’s) settlements; and the messages between Klementina and Maria on 10 February 2016 and then Maria and Sanja Samardzic on 15 February 2016 regarding ‘Anon’s settlement’ where Maria specifically asked Ms Samardzic not to tell Klementina what had happened.
694It is also notable that Maria Alimic organised loans from Awak Davidson and Damien Lukic in this period without Klementina Alimic being aware that she was doing so. Indeed it is apparent from the text messages which passed between Maria Alimic and Sanja Samardzic on 29 February 2016 concerning Klementina finding out about the loan to Damien Lukic, that even Sanja – as the part time receptionist – had more knowledge of certain dealings undertaken by Maria than Klementina did.
695Klementina Alimic’s exclusion from the detail of the financial aspects of the business was also reflected in various text messages which passed between Maria Alimic and Graeme Spillard where Maria Alimic openly discussed the manner in which she dealt with money, and the changes which needed to be made; and between Maria Alimic and Lynne Sheean where they discussed in detail both issues arising in relation to complainant’s transactions, as well as the specifics of monies alleged to be owed to Maria by clients. There is no evidence of Maria Alimic having similar conversations with Klementina Alimic – indeed the general theme running through the evidence was that Maria Alimic was attempting to hide as much of this information as possible from Klementina Alimic.
696When this evidence is considered in combination with the circumstances surrounding the representations made by Klementina Alimic to each of Nyachol Nyouk, Nyadak Gatkuoth, Nachol Kit, Nyadour Gach, and Ajulu Oman, whilst it is open to conclude that there would have to have been some suspicion on Klementina Alimic’s part that the money being paid by the clients would be utilised for purposes other than their own property transactions, I am of the view that it is not open to conclude that Klementina Alimic actually knew or intended that this would be the case. There is no evidence upon which I can trace the payments made by complainants to Klementina ostensibly in furtherance of property purchases; there is no evidence that allows me to draw a conclusion that the money given to Klementina by the complainants was kept under her control – aside from some of the monies provided for fees; there is nothing in Klementina Alimic’s record of interview about what she did with the money from these complainants, or how she thought it would be used; and the evidence of Klementina Alimic’s knowledge and awareness of the details of what Maria was doing in respect of clients’ money is negligible.
697It flows from this conclusion, that in my view Klementina Alimic’s actions in respect of these clients were inconsistent with her having made an agreement of the kind alleged by the prosecution which was an agreement alleged to pertain to all clients. This conclusion is only strengthened by the evidence of the communications between Maria Alimic and Klementina Alimic, and also between Maria Alimic and others about Klementina Alimic.
Communications Inconsistent with the Alleged Agreement
698As already detailed in the summary of evidence, on numerous occasions between mid January and 8 March 2016, Maria Alimic told Klementina Alimic – and others – that: she did not want Klementina to work for her; Klementina should not return to work; it was her (Maria’s) business; Klementina was an employee; and she would get rid of them all (namely Klementina, Sanja and Lynne). There were numerous occasions where Maria Alimic asked others (including Lynne and Sanja) to hide things from Klementina Alimic, or excluded Klementina Alimic from conversations about issues with clients or the business to which other people involved in the business including Lynne, Sanja, Nemanja Durovic, Martha Kek and Rose Deng were privy. There were numerous occasions where Klementina Alimic fought with her mother about her and others getting paid, and the timing of their pay. There were a number of times where Klementina Alimic took her mother to task about her business practices including on 2 March 2016 where she told Maria that she was ‘a fkn disgrace owing people money’ and, on each occasion, she was told in no uncertain terms to back off. Notably there were also two occasions where Maria Alimic asked Klementina Alimic to act in a particular way towards clients and Klementina admonished her mother telling her that she (Klementina) was going to do things the right way; and that she (Maria) should not lie to clients.
699These communications are all inconsistent with an agreement having been formed between Maria Alimic and Klementina Alimic of the kind alleged by the prosecution in the period between mid January 2016 and 8 March 2016. Whilst the relationship between co-conspirators does not have to be harmonious, the communication in this case support the relationship between the accused in regards to the business as being one where Maria Alimic remained in control and pursued her own objectives at all times, rather than one where the accused had agreed to work together to achieve a common design. Maria Alimic was the employer; she was the one who “controlled” the flow of money – including the payment of wages to Klementina Alimic; she was the one who controlled information flow; and she was the one who either threatened to sack Klementina Alimic or told her to back off every time Klementina Alimic raised concerns about her mother’s actions or the manner in which the business was being operated. These aspects of the relationship all speak against an agreement of the kind alleged by the prosecution being in place between the accused.
Conclusion on the First Element
700Taking into account all of the above – as must be done in a circumstantial case – and considering it together, I find that the prosecution have not proven, beyond reasonable doubt that, at some point during the defined period, Maria Alimic and Klementina Alimic agreed with each other to induce the clients of the business to provide sums of money on the basis that the money paid by each specific client would be used towards the purchase of the client’s own property, but in circumstances where the money would be used by Maria Alimic and/or Klementina Alimic for their own purposes, and where the accused were both aware that if they acted in that way, the economic interests of the clients would be put at risk.
701Even though I have found that, during the defined period, Maria Alimic undertook many overt acts which were consistent with the objectives of the agreement alleged by the prosecution, and knew that she was putting the economic interests of the clients at risk, this is not an offence which revolves around the conduct of an individual alone. Rather it is an offence which requires an agreement of a particular kind, between particular people, to be proved.
702I am satisfied that Klementina Alimic came to know in the period between mid January 2016 and 8 March 2016 that the business had financial issues, there were many clients with shortfalls, many settlements were not being paid, and the business bank account was significantly in arrears. I am also satisfied that Klementina Alimic became more involved in the conduct of the business including making representations to clients, receiving payments from clients and making referrals to lawyers, conveyancers and brokers. Moreover, I am satisfied that on occasion Klementina Alimic, of her own volition, used money from the business to make payments, for example of wages, and referral fees for Nyawarga Paguer; and channelled some of the money provided by clients for fees (not for property transactions) through her personal bank account rather than the business account. I am even satisfied that on one occasion Klementina Alimic did make a representation consistent with the objectives of the agreement alleged by the prosecution.
703However, the contrast between the accused in relation to their roles, their actions, and their state of knowledge regarding the workings of the business and the manner in which the client’s monies were being utilised, is stark. Taking the evidence in its entirety, it is open to infer that Klementina Alimic was, like Lynne Sheean, simply an employee in the business, albeit one who on some occasions took liberties with some of the money which flowed into the business. This conclusion is consistent with how everyone who worked either as an employee of the business or closely with the business – including Nemanja Durovic, Lynne Sheean, Sanja Samardzic, Nyawarga Paguer, Hari Christodoulou, Darren Lambert, and Alki Thomaidis – viewed the respective roles of Maria Alimic and Klementina Alimic.
704Taking all of the above into account, it is not open to conclude that the only reasonable explanation of the evidence in its entirety is that an agreement had been made between the accused of the kind alleged by the prosecution. Indeed the communications between Maria Alimic and Klementina Alimic, and between Maria Alimic and others about Klementina Alimic, in and of themselves, speak against such an agreement being in place at any point in the designated period.
705I am, therefore, of the view that the prosecution has not proven the first element of the offence beyond reasonable doubt.
706I note that given my finding on the first element, I do not need to address the second element.
Verdict
707It follows from the above that I am not satisfied beyond reasonable doubt that each of the elements of the offence have been proven beyond reasonable doubt.
708Accordingly in respect of charge 1 on the indictment I find each of the accused, Maria Alimic and Klementina Alimic, not guilty of the charge.
Formal Orders
709The formal orders of the Court are:
(a) on charge one, I find the accused Maria Alimic, not guilty.
(b) on charge one, I find the accused Klementina Alimic, not guilty.
710I direct that the above verdicts be entered into the records of the Court.
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