R v Cakar - [2022] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAKAR
Criminal Trial by Judge Alone
[2022] SADC 17
Reasons for the Verdict of her Honour Judge Schammer
21 February 2022
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION
The accused is charged with seven counts of deception pursuant to s 139(a) of the Criminal Law Consolidation Act 1935 (the Act).
At all material times, the accused was a director of Living Australia Pty Ltd (Living Australia). In or about 2015, the accused, in conjunction with representatives of Michael Kris Real Estate Pty Ltd, commenced to approach residents in the suburb of Thorngate, to secure options for Living Australia to purchase property required for a proposed development, the Thorngate Skywalk City Development (the development).
Living Australia subsequently entered into numerous 'Options to Purchase Land' agreements and associated residential sales contracts with Thorngate property owners. Pursuant to those agreements, Living Australia agreed to purchase and the property owner(s) agreed to sell, property on certain terms and conditions, which in each instance included an agreed purchase price (Contract Amount) and a requirement that the option be exercised before an expiry date. The practical effect of the agreements was that the sales and purchase of the properties was conditional upon the development proceeding.
The owners of the properties located at 39 Carter Street, 43 Carter Street and 14 Main North Road (the complainants) each entered into option agreements with Living Australia.
Over the course of a period of approximately 12 months commencing in late October 2015, the complainants made certain payments to the accused, which collectively totalled $507,000.
The prosecution case is that the accused deceived the complainants, and in so doing, dishonestly received a benefit. There are seven separate counts, relating to seven separate representations made by the accused, which are alleged to have been false and to have caused the complainant(s), in each instance, to make the payment(s) to the accused.
As to each count, it is alleged, inter alia, that the accused represented to the complainant(s) that he required funds to pay for certain upfront costs of the development, and that any monies paid to the accused by the complainant(s) would be used only for that purpose. It is alleged, in each instance, that the accused did not use the monies for the purpose as represented, and instead used the monies to fund his own personal living expenses and lifestyle.
In each instance, the accused then increased the applicable Contract Amount on the option agreement (and associated sales contract) for the respective complainant's property. The increase made to the Contract Amount, in each instance, was for a sum far exceeding the corresponding payment(s) made to the accused.
The development did not proceed, such that the option agreements were never exercised. It is alleged that the accused never returned any of the monies paid to him by the complainants.
The primary issues in dispute with respect to each count were whether the prosecution had proved beyond reasonable doubt that the purported representation was made, if so, was that representation false (in the sense that the accused did not use the monies in the way as represented), and whether the making of that representation caused the accused to obtain a benefit.
Verdicts:
1. The accused is guilty of counts 3 and 4.
2. The accused is not guilty of counts 1, 2, 5, 6 and 7.
Criminal Law Consolidation Act 1935 (SA) ss 130, 131, 139; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34, 47; Criminal Procedure Act 1921 (SA) ss 22, 100, 128, referred to.
Collins v The Queen [2020] SASCFC 96; R v C, CN [2013] SASCFC 44; R v S [2015] SASCFC 179; R v Cassebohm [2011] SASCFC 29; Jones v Dunkel (1959) 101 CLR 298; Dyers v The Queen (2002) 210 CLR 285; Police (SA) v Kyriacou [2009] SASC 66; R v Bolte [2010] SASC 122; R v Buckland [1977] 2 NSWLR 452; R v Magnus (2013) 41 VR 612; Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481; Fermanis v The State of Western Australia [2007] WASCA 84; R v Mead [2002] 1 NZLR 594; R v Ribbon [2019] SASCFC 130; Flack v R [2011] NSWCCA 167; R v Donjerkovic [2012] SASCFC 2; Royall v The Queen (1991) 172 CLR 378, considered.

R v CAKAR
[2022] SADC 17
[Criminal]
Introduction

The accused, Ilijah (Elli) Cakar, is charged with seven counts of deception pursuant to s 139(a) of the Criminal Law Consolidation Act 1935 (the Act).
At all material times, the accused was a director of Living Australia Pty Ltd (Living Australia). In or about 2015, the accused, in conjunction with representatives of Michael Kris Real Estate Pty Ltd (MKRE), commenced to approach residents in the suburb of Thorngate, South Australia, to secure options for Living Australia to purchase property required for a proposed development, the Thorngate Skywalk City Development (the development).
Living Australia subsequently entered into numerous ‘Options to Purchase Land’ agreements (option agreements) and associated residential sales contracts with Thorngate property owners. Pursuant to those agreements, Living Australia agreed to purchase, and the property owner(s) agreed to sell, property on certain terms and conditions, which in each instance included an agreed purchase price (Contract Amount) and a requirement that the option be exercised before an expiry date. The practical effect of the agreements was that the sale and purchase of the properties was conditional upon the development proceeding.
It is alleged that after having entered into such agreements with the owners of the properties located at 39 Carter Street, 43 Carter Street and 14 Main North Road, the accused then approached those owners, requesting, inter alia, that they contribute funds to finance certain upfront costs associated with the development (the alleged misrepresentations).
It is alleged that the accused offered, in return, to increase the Contract Amount applicable to the relevant option agreement and sales contract associated with the respective properties.
It is alleged that, in response, the owners of those properties provided monies to the accused, in good faith. It is alleged that, in each instance, the funds were not used for the purpose as represented by the accused, namely, to fund certain upfront costs associated with the development and that instead, in each instance, the accused used the monies to fund his own personal living expenses and lifestyle.
The accused denies the charges.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
In addition to hearing the evidence and closing submissions over a period of six days, the Court received and considered Prosecution Submissions on the Evidence dated 15 November 2021 (Prosecution Written Submissions), a Spreadsheet relating to the accused’s banking records[1] and Written Closing Submissions for the Defendant dated 18 November 2021 (Defence Written Submissions).
[1] Spreadsheet entitled ‘Balance of Exhibits P1 P2 when transfers made by complainants’.
The Charges
First Count
Statement of Offence
Deception. (Section 139(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ilijah Cakar between the 7^th day of September 2015 and the 4^th day of November 2015, at Adelaide and other places, deceived Andrea Stylianou and Marios Savvas by requesting money for architectural concept drawings for the Thorngate Skywalk City Development, on the basis that he would amend the Option to Purchase Land agreement dated the 15^th day of June 2015 by increasing the purchase price to $1,718,700, and by doing so dishonestly benefited himself, such benefit being money in the sum of $10,000.
Second Count
Statement of Offence
Deception. (Section 139(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ilijah Cakar between the 6^th day of January 2016 and the 10^th day of March 2016, at Adelaide and other places, deceived Andrea Stylianou and Marios Savvas by requesting money to assist with the planning application for the Thorngate Skywalk City Development, on the basis that he would amend the Option to Purchase Land agreement dated the 15^th day of June 2015 by increasing the purchase price to $3,990,000, and by doing so dishonestly benefited himself, such benefit being money in the sum of $150,000.
Third Count
Statement of Offence
Deception. (Section 139(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ilijah Cakar between the 1st day of November 2015 and the 17^th day of November 2015, at Thorngate, deceived Christos Komninos by requesting money for architectural concept drawings for the Thorngate Skywalk City Development, on the basis that he would amend the Options to Purchase Land agreement dated 31st day of August 2015 by increasing the purchase price to $1,465,950, and by doing so dishonestly benefited himself, such benefit being money in the sum of $17,000.
Fourth Count
Statement of Offence
Deception. (Section 139(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ilijah Cakar between the 18^th day of January 2016 and the 6^th day of March 2016, at Thorngate, deceived Christos Komninos by requesting money to finance plans for the Thorngate Skywalk City Development, on the basis that he would amend the Options to Purchase Land agreement dated the 31^st day of August 2015 by increasing the purchase price to $3,084,000, and by doing so dishonestly benefited himself, such benefit being money in the sum of $70,000.
Fifth Count
Statement of Offence
Deception. (Section 139(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ilijah Cakar between the 27th day of October 2015 and the 15^th day of January 2016, at Thorngate, deceived Giovanni Ragnelli by requesting money for upfront running costs for the Thorngate Skywalk City Development on the basis that he would amend the Option to Purchase Land agreement dated 15^th day of June 2015 by increasing the purchase price to $3,551,300, and by doing so dishonestly benefited himself, such benefit being money in the sum of $80,000.
Sixth Count
Statement of Offence
Deception. (Section 139(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ilijah Cakar between the 1^st day of May 2016 and the 14^th day of May 2016, at Thorngate, deceived Giovanni Ragnelli by requesting money for planning applications for the Thorngate Skywalk City Development, on the basis that he would amend the Option to Purchase Land agreement dated 15^th day of June 2015 by increasing the purchase price to $4,700,000, and by doing so dishonestly benefited himself, such benefit being money in the sum of $150,000.
Seventh Count
Statement of Offence
Deception. (Section 139(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ilijah Cakar between the 1^st day of September 2016 and the 6^th day of October 2016, at Thorngate, deceived Giovanni Ragnelli by requesting money for architectural drawings for the Thorngate Skywalk City Development, on the basis that he would amend the Option to Purchase Land agreement dated 15^th day of June 2015 by increasing the purchase price to $7,000,000, and by doing so dishonestly benefited himself, such benefit being money in the sum of $30,000.
Elements of the offence of Deception
Section 139 of the Act creates the offence of deception, namely:
139 – Deception
A person who deceives another, and by doing so –
(a)dishonestly benefits him/herself or a third person; or
(b)dishonestly causes a detriment to the person subjected to the deception or a third person,
is guilty of an offence. (my emphasis)
Section 130 of the Act contains the following relevant definitions:
benefit means –
(a)a benefit of a proprietary nature; or
(b)a financial advantage; or
(c)a benefit of a kind that might be conferred by the exercise of a public duty in a particular way.
deceive means to engage in deception.
deception means a misrepresentation by words or conduct and includes –
(a)a misrepresentation about a past, present or future fact or state of affairs; or
(b)a misrepresentation about the intentions of the person making the misrepresentation or another party; or
(c)a misrepresentation of law.
Pursuant to s 131 of the Act, a person’s conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.[2]
[2] See also s 131(2)-(5) of the Act.
The elements of the offence as applied to the particular charges in this case are:[3]
1.The accused made a representation to another.
2.The representation was false (or misleading).
3.The accused obtained a financial advantage (benefit).
4.The making of the misrepresentation caused the obtaining of the financial advantage (benefit).
5.The obtaining of the financial advantage (benefit) was dishonest.
[3] Collins v The Queen [2020] SASCFC 96 at [163].
There is no requirement with respect to any count that the prosecution prove, in addition, that the accused’s deception, caused the complainant(s) to suffer a detriment.
Although it remains for the prosecution to prove all five elements beyond reasonable doubt, the accused did not dispute the third element, namely that he had received a financial advantage. The remaining elements were all in dispute, and in particular, the accused maintained that the prosecution had not proved beyond reasonable doubt, with respect to any count:
1.that the accused made the alleged representation to the complainant(s) as to the purpose for which he was requesting the monies (first element); or
2.if the alleged representation was made:
(a)that the accused had not used the money for the stated purpose (second and fifth elements); and/or
(b)whether the making of that representation caused the accused to obtain a financial advantage (fourth element).
As to counts 1 – 6, the accused submits that the Court cannot exclude as a reasonable possibility that any monies advanced by the complainant(s) to him were advanced to secure an increase in the Contract Amount applicable with respect to the option agreement for their property, which increase was then made, and not in response to any alleged representation made by the accused that the monies were to be used for any specified purpose.
As to count 7, the accused submits that the Court cannot exclude as a reasonable possibility that no representation of any kind (as particularised on the Information) was made and/or that the monies paid by the complainant to the accused were by way of a loan repayment.[4]
[4] Defence Written Submissions at [203] and [208]-[209].
The accused submits that even if the court is satisfied, with respect to a count or counts, that the alleged representation was made, the prosecution has not proved beyond reasonable doubt, in any instance, that the accused did not use the funds advanced for that stated purpose.
Finally, the accused submits that even if the court is satisfied, with respect to a count or counts, that the alleged representation was made, the prosecution has not proved beyond reasonable doubt, in any instance, that the representation was ‘the operative cause’ of the complainant(s) making the transfer to the accused, rather, in each instance the operative cause for them doing so, was their desire to secure an increase in the Contract Amount applicable under the option agreement for their property.[5]
[5] I will discuss the appropriate legal test to be applied on the issue of causation, later in these Reasons.
Witnesses
The Prosecution called evidence from the following witnesses:
1.Marios Savvas.
2.Andrea Stylianou.
3.Christos Komninos.
4.Giovanni Ragnelli.
5.Kris Papagiannis.
6.Robert Warren.
7.Detective Robert Lengyel.
Numerous exhibits were tendered, including various banking records for accounts held by the accused and the complainants and copies of the contractual documents relating to the option agreements and sales contracts for the properties at 39 Carter Street, 43 Carter Street and 14 Main North Road, Thorngate.
The parties also provided, as agreed facts, a list of transfers made by the accused from his bank accounts, to bank accounts held by Giovanni Ragnelli.[6]
[6] Provided undercover of an email from the accused’s counsel to the court on 18 November 2021, with the prosecutor’s consent.
The accused tendered various documents as exhibits but called no oral evidence.
Legal Directions
General
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything and in particular it is not for the accused to prove that he did not commit the offence or offences as charged.
The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that each and every element of the offence as charged has been proven beyond reasonable doubt.
If the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then the accused remains innocent and I must return a verdict of not guilty to that charge.
There are seven charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
With respect to each charge, if I am satisfied that there may be a rational explanation consistent with the innocence of the accused or I am unsure where the truth lies, then I must find that the charge has not been proven to the standard required by the law and I must find the accused not guilty of that charge.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
Mr Warren gave his evidence by way of video-link from interstate. I must not draw any inference adverse to the accused because of this, nor must this influence the weight given to Mr Warren’s evidence.
The accused elected not to give evidence. As a matter of law there can be no criticism of the accused for doing that. The accused has a right to decline to give evidence and I must not draw any inference adverse to him or the case he has put forward because he has exercised that right. The accused’s silence in this Court does not constitute an admission against him and it cannot be used to fill any gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution has proven the elements of any offence beyond reasonable doubt.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not influenced by public opinion in relation to this matter.
Motive/Discreditable Conduct
The prosecutor submitted that the evidence gave rise to a possible motive for the offending, namely, to fund the accused’s gambling.[7] The evidence relied upon was that comprised in the accused’s banking records.
[7] Prosecution Written Submissions at [121]-[131].
The accused contended that in so far as the prosecution sought to rely on those banking records to prove that he had a possible motive to offend, the prosecution was, in fact, endeavouring to use the records to prove that the accused had engaged in discreditable conduct, and further that it was using such evidence for a propensity purpose.

The prosecution did not file a Discreditable Conduct Notice pursuant to s 34P(4) of the Evidence Act 1929 (Evidence Act).
The Evidence Act does not define ‘discreditable conduct’. The chapeau in s 34P(1) refers to ‘evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence’.
Gambling and/or betting is not illegal and does not constitute an offence. The authorities make it clear that conduct does not need to be illegal to be discreditable for the purposes of s 34P.[8] However, I was not directed to any particular authority which considered whether conduct comprising participation in gambling or betting can constitute ‘discreditable conduct’ for the purposes of the Evidence Act.
[8] R v C, CN [2013] SASCFC 44 at [14].
The structure of s 34P is to prohibit altogether the admission and use of evidence of discreditable conduct for the purpose of indicating that a defendant is likely to have committed the charged offence because he or she has engaged in the discreditable conduct (subs (1)), and to permit its admission and use for other purposes only if certain conditions are satisfied (subs (2)).
It is arguable that if the banking records are used for the purpose of proving a possible motive for the offending, that this necessarily requires the court to reason that the accused is more likely to have committed the offence because he has engaged in gambling and betting, and that to engage in such a process of reasoning has the possible effect of denouncing gambling and betting as ‘discreditable conduct’.
The banking records pertaining to the accused and his company, Living Australia,[9] were admitted as evidence pursuant to s 47(1) of the Evidence Act. The documents are evidence of the record and of the transactions or matters to which the record relates. There was no objection to the banking records being admitted and used for such purpose.
[9] Exhibits P1, P2, P36-P42.
The accused’s banking records are admissible in order to prove the second element of each count, namely that the representation in each instance was false, and specifically that the accused did not use the money transferred to him by the complainants for the purpose as he had represented to them, rather he used the money to fund his lifestyle. The records are also admissible to prove the third element of each count, namely whether the accused received a financial advantage. I intend to use the records for those purposes, being a permissible use that does not require the court to engage in any impermissible propensity reasoning.
I reject the accused’s contention that the banking records ‘cannot be used to infer anything about the purpose of the withdrawal, in particular, to fund the defendant’s lifestyle’.[10] Such use does not require the court to engage in impermissible propensity reasoning.
[10] Defence Written Submissions at [227].
However, I am concerned that to go a step further, and to use the banking records to infer a possible motive for the offending, may require the court to engage in impermissible propensity reasoning. This is notwithstanding that the prosecution submit that in identifying the accused’s gambling as a possible motive for the offending, they are not inviting the court to use the evidence to ‘suggest that the defendant is more likely to have committed the offence because he has engaged in discreditable conduct’.
I will not use the banking records to determine whether the accused had a motive to offend. I will only use the banking records for the permissible purposes as described above.
In any event, I remind myself that if there exists a possible motive for an accused person to do what is alleged against them, that, cannot of itself, prove that they did it. Conversely, the absence of apparent motive does not disprove that the accused did what is alleged. A person's motives may be difficult to discover and crimes are sometimes committed without apparent motive. Absence of motive may, however, lead me to scrutinise the incriminating evidence more closely and, either by itself or with other factors, may give rise to a reasonable doubt as to the accused’s guilt.
Each count is to be considered separately. If I am satisfied beyond reasonable doubt as to the accused’s guilt with respect to a count or counts, I will not reason that because I am so satisfied, that the accused is therefore of bad character and the sort of person who would be likely to offend in this manner and that he is therefore guilty of any other count.
Further, I must not reason that, because of the multiplicity of charged acts, the accused must be guilty of something and convict the accused of one or all of the charged offences.
Circumstantial Evidence/Inferences
The prosecution case, with respect to each count, rests in part, upon circumstantial evidence. I cannot return a verdict of guilty on a charge as against the accused unless the circumstances exclude any reasonable explanation consistent with his innocence with respect to that charge. Further, I must be satisfied not only that his guilt is a rational inference but that it is the only rational inference I can draw from the circumstances I find proved.
In approaching circumstantial evidence there are two steps. First, I must look at the facts on which the prosecution relies as circumstantial evidence in the case and decide which facts are established by the evidence. I must then consider what inference or inferences I am prepared to draw from those facts. This step requires me to consider the combined strength of all the relevant and established facts.
To properly draw an inference of guilt from the facts, it is not necessary that those facts be proved beyond reasonable doubt. However, insofar as it is necessary for me to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt.
Forensic Disadvantage
Counsel for the accused requested that I give myself a forensic disadvantage direction on the basis that many of the relevant events took place in 2015 and 2016, over many days, with the trial proceeding in November 2021.
It was submitted the passage of time had impacted the accused’s ability to remember precisely what was said on the occasions of the claimed misrepresentations, some of which were informal conversations in cafes, where no notes had been made of such conversations and that it had ‘limited the documentary evidence the (accused) could produce’.[11] It was submitted that this necessarily gave rise to forensic disadvantage given the significance of those particular conversations and the limited ability the accused therefore had to challenge the evidence led by the prosecution with respect to those events.
[11] I was not provided with any details as to precisely what documentation may have existed, and would have been available for production, had the trial proceeded earlier.
The prosecution submitted that no such direction was required having regard to the circumstances of this case. Those circumstances included:
·the fact the accused was under no obligation to prove anything and had exercised his right to silence and not give evidence.
·the relatively modest period of delay between the time of the offending and trial.
·the fact that in 2018 the accused had become aware, in any event, that the complainants claimed he owed them money arising from the very same transactions which were the subject of the offending.[12]
[12] When solicitors retained by the complainants sent a letter of demand dated 28 August 2018 to the accused’s solicitors with respect to proposed civil proceedings arising from the same conduct: T 73.22-26.
Section 34CB(2) of the Evidence Act states:
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(my emphasis)
The issue therefore is, has the period of delay between 7 September 2015 and the date of trial (November 2021) resulted in ‘significant’ forensic disadvantage to the accused.
That disadvantage may be in two relevant forms:
·disadvantage relating to the accused’s inability to adequately test allegations or put together a defence, compared to the situation which would have existed if the trial had occurred at a time more contemporaneous with the alleged offending; and
·the disadvantage relating to the trier of fact being asked to decide if guilt has been proved beyond reasonable doubt on evidence which has not been tested as it otherwise might have been.
In R v S,[13] Blue J stated, with respect to s 34CB:
Application of the section needs to be considered in the context of a typical trial. A typical trial takes place two to three years after the events the subject of the charges. Witnesses’ recollections of the existence and detail of events tend to vary according to the significance to them of the event and of the detail in question. Witnesses’ memories are always impaired by the lapse of time however short that lapse may be. These matters are common knowledge and are self-evident to a jury.
… The typical cases in which a section 34CB direction is given involve delays of one or two decades. While there is no lower limit on the elapsed time and the focus of the section is on the degree of forensic disadvantage suffered by the defendant as a result of the elapsed time and not on the length of that elapsed time as such, in general terms it may be expected that the forensic disadvantage would be greater where the delay is in the order of one or two decades than in the order of one or three years.
The significance of an event or aspects or details of an event that is relevant at trial varies considerably. The most significant events are those that are the subject of the charge and are in contest and the most significant aspects or details of such events are those aspects or details that are in contest. Some events are of lesser significance because they form part of the background to or context of the charge. Some events are relevant to the credit of a witness and their significance varies according to the issues in contest as to the credit of that witness and the significance of the witness’s evidence about the events to the witness’s credit.
[13] [2015] SASCFC 179 at [69]-[71].
As outlined by Doyle CJ in R v Cassebohm,[14] it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. However, a theoretical, hypothetical or assumed disadvantage is insufficient.
[14] [2011] SASCFC 29 at [30].
The allegations all relate to the development, being a significant commercial enterprise undertaken by the accused over a period of several years from about late 2014. His role was to negotiate with property owners to secure their land for the purpose of the development. The evidence demonstrated that the accused was in regular communication with Thorngate residents, including the complainants, to discuss matters relating to the development. It is understandable that the accused may not now have a detailed recollection of every occasion he spoke to the complainants or what was specifically discussed at the time.
However, the accused did not dispute that, with respect to each count, he received a financial advantage, in other words, that he received monies from the complainants and, in the case of counts 2 – 7, there was documentary evidence confirming that fact. The real issue in dispute was the cause of that advantage and what, if any representation the accused had made to the complainants which precipitated, in each instance, the transfer by them of a sum of money to the accused’s bank account (or in the case of count one, the giving of cash).
As to counts 1 - 6, the accused’s position was that the alleged misrepresentation in each instance simply was not made, and that the reason why the complainants, in each instance, paid money to the accused was to affect an increase in the Contract Amount on their option agreement. This position was put directly to each of the prosecution witnesses called to give evidence on the specific issue of the alleged misrepresentation during cross-examination. The oral and documentary evidence led by the prosecution demonstrated that the promised increase in the Contract Amount was made in each such instance.
Alternatively, the accused’s position was that even if the accused made the claimed representation, that was not the cause of the accused obtaining any financial advantage, rather the cause was each complainant’s desire to secure the increased Contract Amount.
In such circumstances, it is difficult to see how the passage of time has impacted on the accused’s ability to test the evidence led by the prosecution with respect to counts 1 - 6.
As to count 7, the position is slightly different, as there was no evidence that the Contract Amount on the relevant option agreement was increased.
However, the evidence of all complainants was to the effect that when they entered into the option agreement with Living Australia, they were unaware of any expectation that they would be required to make any financial contribution towards the costs of the development.[15] Mr Papagiannis denied being involved in any negotiations with homeowners about making financial contributions towards the development, and said he was shocked when he learned from others that homeowners were being asked for money.[16] That evidence was not challenged and I accept it.
[15] T 28.6-12; T 114.19-30; T 165.21-35; T 309.2-6.
[16] T 222.34-223.16.
If the accused had a practice of discussing with homeowners whether they were prepared to pay him a sum of money to negotiate an increase in the Contract Amount, one would expect him to have a general recollection of how he approached such discussions and negotiations. If the accused had a practice of requesting (or accepting) monies from any of the homeowners involved in the development, for any purpose, one would expect him to have at least a general recollection of such discussions, particularly given such discussions related to a sum totalling over $500,000, paid directly to him, over an approximate 12-month period. Succinctly put, given these circumstances, one would reasonably expect the accused to remember how it came to be that this significant sum of money was transferred to him, personally, by people he had only met within the prior 12-month period.
If the accused has suffered any forensic disadvantage given the passage of time between the alleged offending, in each instance, and the trial date, I am not satisfied that any such disadvantage is significant.
I decline to give a forensic disadvantage direction.
Absent Witnesses/Jones v Dunkel
Mr Komninos gave evidence that his wife, Ms Asimakopoulos was present during a conversation with the accused, at their home, relevant to the alleged offending in count 4.
Similarly, Mr Ragnelli gave evidence that his wife, Mrs Ragnelli, was present during a conversation with the accused, at their home, relevant to the alleged offending in count 5 and that the accused had told both he and his wife, why he needed money, thus precipitating the transfers which were the subject of counts 6 and 7.
Neither Ms Asimakopoulos nor Mrs Ragnelli were called to give evidence. It was agreed by the parties that the prosecution did not have statements from either of those witnesses. However, there was no evidence as to whether attempts had been made to obtain any such statements, and if so, what were the results of those enquiries, and if not, why not.
Counsel for the accused submitted that I should apply the rule in Jones v Dunkel[17] and infer that such uncalled evidence would not have assisted the prosecution.[18]
[17] (1959) 101 CLR 298.
[18] Defence Written Submissions at [158] and [173].
The prosecution contended that Jones v Dunkel did not apply as a matter of course to criminal trials, relying on the authority of Dyers v The Queen.[19] That case concerned an accused’s failure to call potential alibi witnesses, and whether in the circumstances, a Jones v Dunkel direction ought to have been given to the jury.
[19] (2002) 210 CLR 285.
The majority held that as a general rule, a direction to make a Jones v Dunkel inference should not be given in a criminal trial and that the giving of such a direction in that case had been a material misdirection. Further, Gaudron and Hayne JJ stated:[20]
…as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that the are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.
[20] Ibid at [6].
As such, as a general rule, it is only if the prosecution has not complied with its duty to call all material witnesses that a Jones v Dunkel inference should be made.[21]
[21] Police (SA) v Kyriacou [2009] SASC 66, R v Bolte [2010] SASC 112.
I am unaware of any request being made by the accused for the prosecution to call the absent witnesses as part of the prosecution case. There was no request by the accused for the absent witnesses to be presented for cross examination. There was no application by the accused for me to invite the prosecution to consider calling the absent witnesses. There was no material proffered at trial to suggest that the absent witnesses could give evidence, beyond that of the witnesses called, that would resolve any contentious issues arising at the trial.
In such circumstances, I decline to make the inference as requested. In this respect, I note what was said in R vBuckland by Street J on the use that may be made of the inference in any event: [22]
The inference which a court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness…. At its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him. Failure to call a witness will assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party, but it will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party.
[22] R v Buckland [1977] 2 NSWLR 452 at 458-459.
The prosecution bears the onus of proof in this case. I must decide this case only on the evidence before me. If that evidence is insufficient to support a finding of guilt beyond reasonable doubt with respect to any charge, I must find the accused not guilty of that count.
I must not speculate about the nature of any evidence I have not heard. I should not presume that because a witness was not called, their evidence would (or would not) have assisted the prosecution case.

I simply do not know what either Ms Asimakopoulos or Mrs Ragnelli may have said had they come to court to give evidence. I must decide the case solely on the evidence before me.
Background/Uncontentious Issues
Thorngate is a very small suburb located adjacent to North Adelaide in the City of Prospect, within the area bounded by Prospect Road, Fitzroy Terrace, Main North Road and Carter Street.
At least part of the suburb was subject to re-zoning at, or prior to, mid-2015, to allow for the construction of buildings of up to four storeys in height, resulting in increased interest in the suburb from developers.[23]
[23] T 302.11-38.
Kris Papagiannis is the co-owner of MKRE. He said that from around 2009, he came to know the accused, who was in the building trade, in a social context, having met him through the real estate business.[24]
[24] T 213.15-25.
On 12 December 2014, MKRE entered into an agreement with Living Australia whereby, inter alia, MKRE agreed to pay to Living Australia 50% of the net commission (excluding GST) of each sale referred by Living Australia to MKRE for sale to the general market, upon settlement. The agreement was formalised in a letter from MKRE to the accused, and expressly stated:[25]
We look forward to working with you in order to secure as many of the on-sales of the development projects which you bring to fruition.
[25] Exhibit P25; T 214.2-15.
Pursuant to that agreement, MKRE provided Living Australia, and therefore the accused, with free office space and general access to the facilities at its Grange Road premises. In addition, MKRE arranged for business cards to be prepared for the accused wherein he was photographed and described as ‘Development Specialist Property Procurement/Sales Consultant’, with contact details matching those of MKRE.[26]
[26] Exhibit D28; T 272.23-30.
The accused did not hold a real estate licence at the time Living Australia and MKRE entered that agreement.[27]
[27] T 214.16-19.
Sometime thereafter, the accused spoke to Mr Papagiannis about an idea he had to undertake a property development in Thorngate.[28]
[28] T 215.13-16.
In or about mid-2015, the accused commenced approaching property owners within Thorngate, seeking to ascertain whether they were interested in selling their properties to Living Australia in order for them to be included in the land earmarked for the development. Subsequently, over 20 property owners entered into option agreements with Living Australia, whereby Living Australia agreed to purchase the property, and the property owner agreed to sell the property to Living Australia, for a fixed Contract Amount, with each agreement subject to a specified expiry date. For practical purposes, the option agreements were only ever going to be exercised if the development proceeded.
The development as initially proposed involved only the properties on Main North Road between Thorngate Street and Carter Street, as listed on a document, in evidence, described as ‘Schedule 4’.[29]
[29] T 273.21-24; T 274.16-26. Schedule 4 is located within Exhibit P4, noting that particular document appears to have no place within Exhibit P4, as it is not similarly paginated and bears signatures which are physically inconsistent with the signatures which appear on the other pages of that Exhibit. Precisely where the page containing Schedule 4 came from, was never properly addressed by the evidence.
Included within the bundle of documents tendered as P4 was a page which bears different initials from the rest of the documentation in that bundle and is marked ‘Schedule 4’. From the evidence it is apparent that this schedule was included in some, but possibly not all, of the option agreements entered into relating to the development.
Schedule 4 stipulates:
For this Option Agreement to move to the next stage of Development, it is critical that all properties as included within the overall Option Agreement for the future Planned Development must sign their Option Agreements by 30 October 2015.
Failure to do so automatically jeopardizes (sic) the integrity of this project which consists of the properties listed below thus allowing the Intending Purchaser and/or the Intending Vendor the option to cancel and therefore withdraw from this Option Agreement with no repercussions on either party to the other.
However, the insistence of one or two property owners to not commit to this project does not altogether scuttle the possibilities of any smaller development with any or all of the other Intending Vendors to move forward with a renewed orderly development with new time frames and conditions.
For this project to proceed to the next stage of development, the following properties need to have signed the Option Agreement and associated documents by 30 October 2015:
10 Main North Road Thorngate SA
12 Main North Road Thorngate SA
14 Main North Road Thorngate SA
16 Main North Road Thorngate SA
18 Main North Road Thorngate SA
20 Main North Road Thorngate SA
2a Thorngate St Thorngate SA
2 Thorngate St Thorngate SA.
Over time, the proposed development expanded to include other properties within the area bounded by Thorngate Street, Carter Street and Main North Road.[30]
[30] T 278.16-19; T 279.7-10; T 280.1-3.
The accused spoke to residents, negotiated the respective Contract Amount for the purchase of each property and drafted the option agreements, for execution by the respective property owners and himself, as a director on behalf of Living Australia. MKRE drafted the associated residential sales contracts for the properties over which Living Australia had secured option agreements.[31]
[31] T 216.6-9; T 216.24-31.
Mr Warren is a qualified architect who operates the company, Warren Design Pty Ltd (Warren Design). Mr Warren described this as a Sydney based company, which designs very large buildings, and designs and constructs cities. He said at present, the company is handling medium sized residential developments and large developments such as an airport city.[32]
[32] T 234.24-235.21.
Warren Design claims to be an international award-winning company, with worldwide expertise in architectural design and construction.[33]
[33] Exhibits D20 and D21.
On 7 January 2016, the accused (described only in his personal capacity, not as director of Living Australia) and Mr Warren for and on behalf of Warren Design, signed an ‘agreement’ entitled ‘Matters to Confirm between Ilija Cakar and Robert Warren of Warren Design, Establishing A FINAL corporate agreement’ (the Warren Agreement).[34]
[34] Exhibit D23.
On its face, the Warren Agreement appears to be an agreement by the accused (personally) and Warren Design to enter into a binding legal agreement to jointly create a Development Company to undertake the development.
The Warren Agreement outlines grandiose expectations with respect to the development, whereby Warren Design would be Permanent Chairman and the accused a Permanent Director of the ‘Development Company’, with each having a shareholding of 50% in the company. Net profits from the development were ‘conservatively’ estimated at $924 million USD.
The Warren Agreement makes loose reference to the various responsibilities and obligations of the accused and Warren Design with respect to the development.
It alludes to Warren Design being responsible for securing the estimated $1.2 billion USD funding for the development [‘Warren Design have the right contacts and relationships with the Finance Brokers, who have currently offered the Debt Funding in Principle’],[35] calling in tenders, selecting the right building contractor, enlisting political help and so on.
[35] Exhibit D23 at [2D].
Warren Design was to be appointed as ‘sole Architects and Interior Designers’ (my emphasis) for the Thorngate development, with a total architect’s fee proposed of $97.17 million USD, based on 12% of the cost of construction and to include various consultants’ fees.
The first clause of the Warren Agreement relates to payment to be made to the accused, namely:[36]
1. Suitable Payment for Ilija Cakar, at DA. Approval is $40.0 million USD plus GST. This Sum will be paid to Ilija Cakar on submission of all Option Agreements for all Land for the Thorngate Skywalk City Development, after DA Approval of the Development by DAC. This will compensate Ilija Cakar for putting the Site together, in Option Form, and the Costs involved to date.
[36] Exhibit D23 at [1].
The Warren Agreement required the accused ‘to submit the Entire Land Option Contracts into the Development Company upon DA Approval’, and as a Director of the Company, to attend a Permanent Board meeting each month, report to the Board each time it met and, in addition, to be allocated ‘specific tasks to complete each week and each month, during construction, and after Construction.’[37]
[37] Exhibit D23 at [3].
Mr Warren gave evidence, consistent with the terms of the Warren Agreement, that the accused secured the option agreements to enable the land to be purchased for the development, and he gave evidence, which was not challenged, that ‘on all the early meetings’, the accused had said he had 95% or 96% of the option contracts signed, and that the others would be done by the time they were needed.[38]
[38] T 238.37-239.8.
Importantly, the Warren Agreement states:[39]
… there will never be any call on Ilija Cakar to produce money for the Development. Ilija Cakar is responsible for monies spent to date on any Professional Service completed to this date. (my emphasis)
[39] Exhibit D23 at [2F].
Mr Warren gave evidence, which was not challenged, and consistent with the terms of the Warren Agreement, that Warren Design and the accused each agreed to cover their own personal costs associated with the development, until the development was approved, at which time they would each be entitled to payment of certain monies.[40]
[40] T 240.12-37.
The Warren Agreement outlined the appointment of Mr Kris Papagiannis as ‘Real Estate Director’, being an important paid position. In addition, MKRE were to:[41]
… be responsible for appropriate Presale marketing, Property for Sale and Lease, and post Development Construction Marketing. This will involve monitoring a number of Performance Sales Schedules, and monitoring several top Real Estate Agencies.
Appropriate Marketing Fees, and Real Estate Commissions have already been allocated to this task, for this unusual Marketing Campaign…
[41] Exhibit D23 at ‘Additional Points to be Added into this Agreement’ at [5].
MKRE was not involved in getting approvals for the development, architectural drawings or engineering assessments.[42] However, in addition to drafting and signing the various residential sale contracts, Mr Papagiannis confirmed that MKRE did have some role attending meetings, updating residents as to the development, verifying re-sale value of apartments and the like.[43]
[42] T 224.17-21.
[43] T 283.12-37.
Mr Papagiannis gave evidence, which was not challenged, that the work undertaken by him (and MKRE) with respect to the development, prior to its approval, was done without any payment to him or MKRE. I accept that evidence. He agreed with a proposition put to him in cross-examination, that the rewards for that 18 months of hard work would have come if the development had gone ahead.[44]
[44] T 281.35-282.32.
During late 2015 and the first half of 2016, property owners who had signed option agreements with Living Australia, including the complainants, were sent letters by MKRE updating them as to the progress made with respect to the development.[45] Examples of these letters are as set forth in Exhibit D10, being copies of the letters sent to the owners of 39 Carter Street, Thorngate.
[45] And, at least in terms of a letter dated 9 May 2016, other Thorngate residents who had not yet signed an option agreement.
I will refer to the contents of these letters in detail later in my judgment, but the general tenor of the letters was to reassure Thorngate property owners, including the complainants, of the steps taken to advance the development, thus generating optimism that the development would, in fact, proceed.
In a letter sent to Thorngate residents in January 2016, MKRE announced that Living Australia had ‘secured a prominent Australian Developer with vast Australian and international experience to this project and an agreement was signed last week’. That ‘prominent Australian Developer’ was in fact the architect, Warren Design.[46]
[46] Exhibit D10.
In a letter sent to Thorngate residents in May 2016, MKRE announced that the accused was moving into 8 Thorngate Street, Thorngate on 13 May 2016 ‘to coordinate the upcoming Development’.[47]
[47] Exhibit D10.
Thereafter, but during 2016, the accused invited owners who had entered into option agreements to attend one, possibly more, ‘neighbourhood meetings’ hosted by him, at 8 Thorngate Street, to discuss the development.[48]
[48] T 132.4-34; T 186.7-13.
Mr Warren said that he attended such meetings, at 8 Thorngate Street, and that during such occasions he and the accused would talk about the development with the invited residents, and he would show them the progressed architectural drawings.[49]
[49] T 239.33-38.
Mr Warren entered into discussions with several different potential financiers (and/or finance brokers),[50] and also arranged a meeting with Mr Tom Koutsantonis, seeking ministerial endorsement of the development.[51] The accused, Mr Papagiannis and Mr Warren met with the Mayor of the City of Prospect, to discuss the development.[52]
[50] Exhibit D26; T 249.32-35; T 251.27-35; T 259.7-10.
[51] Exhibit D26 pp 72-73; T 261.3-21.
[52] T 256.4-32.
The development also attracted media attention.[53]
[53] T 46.15-23; Exhibit D26 pp 86-89.
As such, I am satisfied that active steps were being taken by the accused, Mr Warren and MKRE to advance the development during 2015 and 2016 and Thorngate residents, including the complainants, were being kept informed of this.
Mr Warren gave evidence, which was not challenged, that development application approval was never obtained, and that although he was in negotiations with financers, those financiers would not commit until they had documented evidence that 100% of the required option agreements had been secured.[54]
[54] T 240.21-22; T 241.9-25.
Mr Warren also gave unchallenged evidence, that sometime in 2017, the Warren Agreement ended, as the accused was demanding he be paid more money than was previously agreed and the accused had failed to obtain sufficient option agreements as required by potential financiers. He gave evidence, which was not challenged, that up to that date, Warren Design had never received any payment for the work it had undertaken with respect to the development.[55] I accept that evidence.
[55] T 242.1-31.
In cross-examination, Mr Warren gave the following evidence:[56]
Q.Did you spend up to $400,000 - your company and yourself - on the Thorngate Skywalk City project.
A.Yes, for - on all those many functions. Yes, there was - it was an estimated 400,000 plus, yes.
Q.That money was spent on architectural work; correct.
A.It was spent on not just architectural work. It was spent on feasibilities, it was spent on business plans and a number of other things that the financiers required.
Q.These are what you might call up-front costs for developments.
A.Yes, you could say up-front costs, yes.
[56] T 269.22-33.
Mr Warren identified the architectural concept plans for the development, drawn by him, as being those on pages 42 to 44 of Exhibit D21.[57] There were no other such plans in evidence.
[57] T 243.38-244.18.
The development never proceeded, such that the numerous options to purchase land in that suburb, held by Living Australia, were never exercised and ultimately expired.
Evidence – Matters in Dispute
Complainants – Counts 1 and 2
Initial dealings with the Accused
The complainants in counts 1 and 2 are Mr Savvas and Ms Stylianou, who are married and the owners of 39 Carter Street, Thorngate.
Mr Savvas has spent his working life in the aviation industry, both as a pilot and in a technical engineering capacity.[58] He has an understanding as to how commercial and residential developments take place, from prior experience.[59]
[58] T 18.24-29.
[59] T 62.14-18.
Ms Stylianou has worked previously as a journalist at The Adelaide Advertiser and said that as a journalist, she was in the habit of taking notes. She described herself as a ‘note taker by practice’.[60]
[60] T 105.20-25; T 106-9-11.
Ms Stylianou kept notes of the events, meetings and conversations that took place between her, her husband and the accused over the course of the couple’s dealings with him. She said she made those notes shortly after the meeting or discussion taking place, or in the vicinity of that time.[61]
[61] T 105.38-106.8.
When giving her evidence, Ms Stylianou referred to her notes, having been granted permission to do so.
Mr Savvas and Ms Stylianou first met the accused in 2015 in connection with the development.
Mr Savvas gave evidence that in June 2015 he received an unsolicited phone call from the accused, who identified himself as a property consultant for MKRE. He was expecting the call, as he and his wife had heard about the development from neighbours, including their immediate neighbour at 41 Carter Street and a neighbour (now deceased) at 16 Main North Road. They were aware that developers were approaching property owners in Thorngate, looking to purchase those properties. Specifically, they were aware that the owners of 16 Main North Road had ‘just signed a $2 million option agreement’.[62] He said one of his neighbours in fact passed on his details to the developers who were making enquiries to purchase property in the area.
[62] T 45.38.
Mr Savvas said he discussed the potential development with the accused, who was assessing whether he and his wife would be interested in signing an option on their property.
Mr Savvas said he next spoke to the accused on 28 July 2015, when he and Ms Stylianou attended at MKRE’s premises at Grange. Both the accused and Mr Papagiannis were present.[63] The purpose of the meeting was to discuss the Thorngate development. Mr Savvas said:[64]
There were lots of things mentioned, high-rise apartments, supermarkets which had us concerned primarily, which is the reason why we were exploring initially because we were told there was going to be supermarkets in the area, shopping trolleys, so we had concerns for our property at that time.
[63] T 20.15-18; noting Ms Stylianou gave evidence that it was at that meeting she first met the accused and first properly met Mr Papagiannis; T 107.1-18.
[64] T 20.26-31.
Both Mr Savvas and Ms Stylianou said that when they heard about the development, they were concerned about the prospect of their home being surrounded by high rise apartments and shopping trolleys. Ms Stylianou said they were worried about the impact this would have on their home and its value if they chose not to sell and be part of the development.[65] They had contacted MKRE because of those concerns and what was going to happen to their property and to their neighbourhood.
[65] T 46.30-33; T 107.1-108.10.
There was some minor inconsistency in the evidence given by Ms Stylianou and Mr Savvas as to precisely what occurred at that meeting and when it was that they signed the option agreement for their property, it being dated 15 June 2015.[66]
[66] Exhibit P3.
Mr Savvas said that he could not recall exactly the date the option agreement was signed, but he believed it was on the second occasion that he and his wife had attended at the agency, MKRE. He could not recall signing any other documents on that date.[67]
[67] T 24.20-21.
He said they also signed a contract for sale, although he could not remember when that document was signed, or where it was signed, although it may have been at MKRE.[68]
[68] T 24.22-35.
In cross-examination, Mr Savvas agreed that contrary to what he had said, initially, during examination in chief,[69] in a statement he gave to police in October 2019, he had stated that he and his wife had signed both the option agreement and the residential sales agreement at the offices of MKRE on 28 July 2015. He was asked whether he was now certain that the option agreement and the residential sales agreement had been signed on different dates and stated:^[70]
I am not certain, no, but it does say 15 June at the top of the option agreement.
[69] T 24.20-21.
[70] T 50.14-15.

Ms Stylianou said that she and her husband signed both the option agreement and a residential sales agency agreement at the meeting on 28 July 2015. She said the date on the option agreement (15 June 2015) was inaccurate as she, her husband and children were overseas on that date and that she had asked the accused to change the date but he had refused to do so.[71]
[71] T 111.3-29.
The option agreement was signed by both Mr Savvas and Ms Stylianou and by the accused for and on behalf of Living Australia. In each instance the respective signatures were witnessed by Mr Papagiannis.
Pursuant to the option agreement, Mr Savvas and Ms Stylianou agreed to grant Living Australia an option to purchase the property on certain terms, including that the option was exercised by the purchaser on or before 5:00pm on the expiry date (30 June 2018), with a specified Contract Amount, as per Schedule 2, Item 8, of $1,567,050.[72]
[72] Exhibit P3 Schedule 2 Item 8.
Mr Savvas outlined what he understood the option agreement meant, namely:[73]
A.What it means is there is an option to buy our property for the future development should it proceed and the option was to purchase our property for the sum of $1.567 million. The option was to have an expiry date.
Q.Once the expiry date had been met and if the option hadn't been exercised, what did that mean.
A.There is no option. There was no obligation on the purchaser to buy. It all fell and hinged upon the eventual progress of the proposed development.
[73] T 21.11-19.
The contract for sale was identified as the document tendered as Exhibit P4, (although that document is in fact a ‘Residential Sales Agency Agreement’, rather than a ‘Residential Sales Contract’). The Residential Sales Agency Agreement is dated 28 July 2015 and was executed by both Mr Savvas and Ms Stylianou as vendors and Mr Papagiannis, by or on behalf of the agent.
Lunch at Chianti on 8 September 2015
Mr Savvas gave evidence that he next spoke to the accused on 8 September 2015 at Chianti Restaurant. His wife was also present. He said he thought the accused had invited them to lunch and from their perspective, the purpose of the meeting was ‘to garner as much information about the development as we possibly could’.[74]
[74] T 27.20-21.
As to what was discussed with the accused at that meeting about the status of the development, he said:[75]
A.That it was all going to proceed as per normal. That he was about to submit concept drawings but required money.
Q.Did he say how much money he required.
A.$45,000 for concept drawings.
Q.Was he just talking in general that he needed 45,000 or was that being directed at you and your wife.
A.We believe at the time it was general. That there was - I think he was emphasising there were a lot of costs to everything.
[75] T 27.35-28.5.
He confirmed that at the time he and his wife had signed the option agreement and the contract for sale, there had not been any discussion, nor anything said to him by the accused or in the accused’s presence that they would need to contribute towards the cost of the development.[76]
[76] T 28.6-12.
Mr Savvas said that the first time the issue of money being required for various things had ever been raised with him, was at the lunch at Chianti.
When asked precisely what the accused had said at that lunch, Mr Savvas gave the following evidence:[77]
A.That if we contributed $10,000 to the costs of concept drawings he'll up our option agreement.
Q.What did you understand that to mean.
A.It means we get a higher price on the option agreement if we gave him the $10,000.
[77] T 28.25-29.
In cross-examination, it was put to Mr Savvas that at that lunch, the accused told him and his wife a number of things about the development and things that needed to be carried out. In response, Mr Savvas gave the following evidence:[78]
A.Yes, one of the first steps was the concept drawings.
Q.But he told you about other parts of the development such as getting soil samples and reports and so on; is that right.
A.Yes, with the development too and there's multiple steps.
Q.You discussed multiple steps.
A.There's always multiple steps.
Q.I said you discussed multiple steps.
A.I believe the terms, the words used, was concept drawings were mentioned, planning and, yeah, planning and evaluation or planning and approval, something to that effect.
[78] T 54.3-15.
In cross-examination, Mr Savvas agreed that in his statement to police, he had said, with respect to that meeting:[79]
At that time Illi asked us for $10,000 in cash to go towards concept drawings for the project which could cost about $45,000. In exchange for this money he would amend the sale price in the agreement from $1,567,050 to $1,718,700.
[79] T 54.25-28; T 59.22-60.2.
It was suggested to Mr Savvas in cross-examination that the words recorded in his statement were the exact words that he had told the police officer and Mr Savvas agreed that they were.
Mr Savvas gave evidence that he and his wife did not reach a decision with respect to that proposal at the lunch. He said they later made a decision to do so ‘on condition that the money be spent on the project’.[80]
[80] T 28.36-37.
In cross-examination, counsel for the accused put to Mr Savvas that at that meeting at Chianti, he and his wife wanted to know how they could make money from the development. The following exchange occurred:[81]
[81] T 60.14-61.10.
A.No, we wanted to be a part of the development.
Q.You wanted to be a part of the development.
A.Yes.
Q.In order to get some profit from it.
A.Well, we didn't want to be left out because the way we saw it if we were left out we would make a substantial loss.
Q.Are you saying that the original option to purchase price of $1,567,050 was a loss for you.
A.No. If we weren't part of the land exchange and we had high-rise next to our property, including what was alleged to be supermarkets over our fence with shopping trolleys, we believed that our property would be closer to half its then value.
Q.But you had already agreed to sell your property, hadn't you, with the option to purchase on June 2015, on your account, for $1,567,050. You had already agreed that, hadn't you.
A.That is correct.
Q.So if the development went ahead you would have received that money because the option would have been exercised.
A.Correct.
Q.So you wouldn't have been at a loss, would you.
A.No.
Q.So at that meeting you wanted to know how you could make more money from your property, didn't you.
A.No, we wanted to hear from Eli about the project and what was happening.
Q.Yes, and did it not end up with you increasing your option to purchase too by up to $1,718,700.
A.That had already been mentioned to us a couple of weeks earlier.
Q.The increase in the option price to $1,718,700 was a substantial increase for your property, wasn't it.
A.Yeah, a nominal increase, that is right. (my emphasis)
It was suggested by counsel for the accused, that Mr Savvas wanted more money for his property. Mr Savvas gave the following evidence:[82]
[82] T 61.22-62.5, noting the word ‘Kamninos’ at T 61.28 is a transcription error, and the word used was ’Kalymnos’.
A.No, we wanted - our original objective was to maintain our value, maintain our asset.
Q.You ended up in that conversation with Mr Cakar on at Chianti discussing raising the option to purchase so that you would make more money from your property, didn't you.
A.That was mentioned at Kamninos by Mr Eli Cakar.
Q.We haven't got to that yet. I am still talking about the $10,000.
A.Yes.
Q.At that meeting there was a discussion for you to get the OP on your property higher so you would make more money, isn't that right.
A.Yes, the discussion was brought about by Mr Eli Cakar, that is correct.
Q.He told you one way for you to make money is for you to pay him to increase the option to purchase.
A.That was the inducement from his part, yes.
Q.So you agreed to pay him in order to increase your option to purchase, didn't you.
A.We agreed to help him out so that we can get the development moving forward, that's what we agreed to.
In response to a proposition put to him in cross-examination that he had discussed the issue of raising the option price with his neighbours, Mr Savvas said that there were such discussions and he and his wife were aware that others had had their options raised.[83]
[83] T 65.9-14.
Counsel for the accused put to Mr Savvas that the only deal that he and his wife made with the accused on that occasion was to give the accused $10,000 to increase the Contract Amount on the option agreement and that was the only deal they discussed with him. Mr Savvas said:[84]
Negative. The deal was we give him $10,000 he will raise the option and he will put the money towards concept drawings.
[84] T 62.35-37.
Mr Savvas said he did not write down the terms of that deal, although he believed Ms Stylianou had made notes of the occasion.[85]
[85] T 62.38–63.16.
Ms Stylianou also gave evidence about the meeting at Chianti on 8 September 2015. She said that she and Mr Savvas met the accused there for lunch, during which time they talked about the development.
She was asked whether the accused had asked her and her husband for anything during the course of that meeting and said:[86]
A.He asked if we could help him finance some concept drawings because they were $45,000 and he could not finance it himself and he said 'Can I please have $10,000 to go towards the cost of those contour drawings, or whatever, some architectural type of drawings' and he said 'That would help enormously me to get the project up and running' and that's basically what he asked. He also asked for - sorry, yeah that's basically what he asked, at that point.
[86] T 114.10-18.
She said that this was the first time she and her husband had, as far as she was aware, been asked by the accused to contribute financially towards the development.[87]
[87] T 114.19-30.
Ms Stylianou gave the following evidence as to what occurred at that meeting:[88]
Q.At Chianti, did Mr Cakar say anything or offer to you, when I say 'you', I'm talking about you and your husband, anything if you gave the $10,000.
A.Yes.
Q.What was that.
A.He said he will increase the Option Agreement from 1.567 whatever it was, to 1.718 million. He will give an extra $150,000 for our property when the time came to purchase the land for his development. So 'you help me, I, in return, will give you a bit of a bigger price'.
[88] T 116.13-22.
She confirmed that she and her husband did not make a decision there and then but that they later decided to pay the accused a sum of $10,000, financed from money held in two Delphi Account Term Deposits.
When asked why she and her husband had agreed to give the accused $10,000, Ms Stylianou said:[89]
Because he needed to get the project up and running and in order to do that he needed funds. He had deadlines, he needed to provide plans as soon as he could. So he was raising funding, assistance from the neighbourhood who are impacted by this development and as he said he needed $45,000 for his concept drawings.
[89] T 119.7-12.
During cross-examination, Ms Stylianou confirmed that she had taken notes during the lunch meeting at Chianti on 8 September 2015.
She said that during that meeting there was a brief discussion about the development and that the accused had told her that a number of things needed to occur for the development to happen, including obtaining soil reports, engineering and soil testing.[90]
[90] T 135.21-31.
Ms Stylianou agreed that there was nothing in her notes to the effect that the accused had requested concept drawings and there was no mention of the sum of $45,000.
When asked if her memory of that occasion was better when she wrote the notes than it is now, she gave the following initial response:[91]
No, I was very accurate in what I was writing. I first heard about the $45,000 concept drawings just when my husband handed Illi the money for $10,000 for the concept drawings.
[91] T 136.35-38.
After further questioning, Ms Stylianou said that she assumed her memory was better on that day, namely than it is today.[92]
Kalymnos Cafe
[92] T 137.10-28.
Mr Savvas gave evidence that on 3 November 2015, he met the accused at Kalymnos Café and gave him $10,000 in cash, being money that he had withdrawn from two term deposits he held with the Delphi Bank.[93] He said he gave cash, as it just seemed easier at the time.[94]
[93] T 29.3-21; Exhibit P5.
[94] T 78.26-28.
He asked the accused for a receipt but said that he did not give him one and that he never received a receipt from the accused with respect to that payment.
Mr Savvas agreed he had not written down the terms of the agreement whereby he and his wife had agreed to give the accused the $10,000. He said:[95]
It was mentioned by me but Ili kept on saying things like ‘This is about trust now’ and we were a little bit fearful.
[95] T 78.32-34.
He said they were fearful for many reasons, and that there was a lot going on at the time.[96] In re-examination he clarified that he was not fearful of the accused, and by ‘fearful’ he was referring to:[97]
Just about the project itself. Because there were a lot of things going on at the time. It was fearful of properties being included, excluded, and what the repercussions would be for my property. And of course our finances at the time because, if we were excluded I was of the impression that that would be a very costly proposition.
First amendment to Option Agreement/Sales Contract
[96] T 78.36-79.3.
[97] T 104.4-10.
Within a week or so thereafter, the accused visited Mr Savvas and Ms Stylianou at their home. He attended by himself. During that visit, both the option agreement and the residential sales contract were amended, by hand, to reflect the agreed increase in the Contract Amount to $1,718,700. Mr Savvas, Ms Stylianou and the accused applied their signatures next to the handwritten amendment on both documents. [98]
[98] Exhibit P6 p 8; Exhibit P7 p 2 of 10.
Mr Savvas was asked, during examination-in-chief, if on that occasion, he had a further conversation with the accused about what the $10,000 would be used for. Mr Savvas said that there was such a conversation and that as best he could remember, the conversation was that ‘the money was to be used for concept drawings. For the Thorngate development, no other development’.[99]
[99] T 33.4-5.
Mr Savvas said that on that occasion, that is, when the accused came to their home and they signed the amended paperwork, he had asked the accused for a receipt.[100] He agreed that he had not written down a record of the agreement pertaining to the payment of $10,000 at that time, as he did not think he needed to.[101]
[100] T 81.2-5.
[101] T 81.6-14.
He gave evidence that he believed that his wife had taken notes of the discussions that took place at Chianti.[102] He had a bank receipt confirming the withdrawal of the funds used to pay the $10,000 and he had asked for and was expecting to receive a receipt from the accused.[103]
[102] T 63.1-3.
[103] T 66.7-35.
In cross-examination, counsel for the accused suggested to Mr Savvas that at the time the accused attended his home in early November 2015 to sign the amended option agreement and amended residential sales contract, there was no discussion with him about the use of the money that he had given him. Mr Savvas gave the following evidence:[104]
A.There was discussion about the use of the money given to him.
Q.The use of the money that you had given to him wasn't discussed because the only deal that you had made was $10,000 to increase the option to purchase, that was the only deal.
A.Negative, the deal we made was to fund concept drawings.
[104] T 84.6-12.
Mr Savvas agreed that he did not tell the police, details of any conversation he had with the accused on that specific occasion (ie at his home in November 2015) as to the use if the money he had given the accused.[105]
[105] T 85.32-86.30.
Ms Stylianou did not make a detailed note of what occurred on the occasion the accused attended at their home to make the amendments to the option agreement and sale documentation following the payment of the $10,000.[106]
[106] T 138.5.
She agreed that on that occasion, she had not written a receipt for the accused to sign for the $10,000. When it was suggested that she could have, she gave the following evidence:[107]
Not necessarily. How do I write a receipt for someone. He was meant to send me an email which is a far more better combination. It was meant to be coming in a letter form acknowledging. So it was meant to be an email with specific details. There is a formal record that way.
[107] T 138.21-26.
Ms Stylianou acknowledged that between September 2015 and September 2017, she regularly communicated with the accused and had emailed him on 23 occasions, the purpose for which was to give him various news articles about developments in and around Adelaide. She agreed that none of those emails contained a request for a receipt for the $10,000.[108]
Additional request for money – Kalymnos Café and at the home
[108] T 141.10-29; Exhibit D11.
Mr Savvas gave evidence that when he was at the Kalymnos Café for the purpose of giving the $10,000 in cash to the accused, the accused had a further conversation with him about money. He specifically recalled the accused saying ‘that the residents should get skin in the game and put money into the project to raise money for planning and approval purposes’.[109]
[109] T 33.20-22.
He said that at that time the accused asked him directly for a sum of $200,000, which he said would be used for: [110]
[p]lanning approvals, architectural drawings, soil tests, all manner of things related to getting the development up and running and approved by the Prospect Council and the SA Government. I think they called it the DAC, at that time, Development Approval Commission.
[110] T 33.31-35.
Although he could not recall if that discussion continued when the accused came to his home to amend the option agreement, he thought it was more than likely that it did.[111]
Letter 13 November 2015
[111] T 33.15-17; 34.1-5.
Mr Savvas agreed that he and his wife received a letter from MKRE dated 13 November 2015, signed by Mr Papagiannis and Mr Michael Georgiadis, being a letter written in generic terms, with the reference line ‘To all residents contractually involved in the Thorngate development project.’[112] The letter stated:[113]
We are delighted to advise that all the properties that had been earmarked to this project have been contractually secured prior to the 31^st October 2015 thus fulfilling schedule 10 of some of the option agreements.
As such, Living Australia Pty Ltd is now in deep discussion with Developers towards identifying the correct development mixture between commercial/residential outcomes for the site. This will involve a great deal of planning/drafting and cost modules before placing such before council.
We will gladly provide you all with another update early in the New Year when all the key players have had a chance to mould a plan for success.
Merry x-mas to you all and we are all working towards a prosperous future for all landowners associated with this project.
Thank you all for your co-operation and future assistance towards the continued success of this project.
Lunch at Chianti on 7 January 2016
[112] T 79.11-19.
[113] Exhibit D10 p 1.
Mr Savvas said he next saw the accused on 7 January 2016 at Chianti. He and his wife arranged to meet the accused for lunch, for the same reason as before, namely, to get as much information as possible about the development.[114] No one else was present. During examination-in-chief, Mr Savvas was asked, as to that occasion:[115]
[114] T 34.11-23.
[115] T 34.29-35.25.
Q.Was this topic of the residents getting skin in the game; did that come up.
A.It did.
Q.As best you can remember, what did Mr Cakar say.
A.Numbers were mentioned; other residents in the neighbourhood were mentioned; getting skin in the game and that we also had the same opportunity.
Q.When you say 'other residents'; residents of Thorngate.
A.Correct.
Q.When they were mentioned, in what context did he mention them.
A.That other households were giving Illi money for the development of the project.
Q.Did he mention people by name.
A.I can't recall that.
Q.Once again, was this just generally; was he talking generally or was he talking to you and Andrea.
A.He was talking to me and Andrea.
Q.Did he, specifically, ask you for anything or any amount.
A.$200,000 or we had the opportunity to give him up to $200,000.
Q.Was any decision made by you and Andrea, at the lunch.
A.No.
Q.Was there any specifics about what that money would be used for if you chose to contribute.
A.It would be used to further the Thorngate development.
Q.The purpose; was it just spoken about in a general term or was there any detail to it.
A.Yes, the words were ‘The money was to get the Thorngate development off the ground and the money would be used for soil tests, architectural plans and costs’ Yeah, all the preliminary steps to get any development and, in particular, the Thorngate development to approval stage before the SA government.

Mr Komninos did not make any notes of this discussion. However, after considering the proposal, Mr Komninos sent an email to the accused on 11 November 2015. I am satisfied that this email contained his response to the proposal he had discussed with the accused at the coffee shop, namely that Mr Komninos and his wife would contribute $15,000 ‘for the development approval costs’ in return for the Contract Amount being increased to $1.45M.
It was submitted that there was no evidence that the accused was ‘in agreement’ with the proposal as outlined in that email. However, on 13 November 2015, Mr Komninos transferred a sum of $8,500 to the accused’s Commonwealth NetBank Saver account ending -629. The following day, he transferred a further $8,500 to that same account.
I accept the evidence of Mr Komninos that between sending the email on 11 November 2015, and transferring the first sum of $8,500 on 13 November 2015, he had a further, undocumented, telephone discussion with the accused, whereby the accused told him he would raise the Contract Amount to $1.45M, if the contribution made by the couple was increased $17,000. I am satisfied that this contribution was made by the complainants in response to the accused having represented to them that the money was to be used ‘for development approval costs’ as described in the earlier email.
I accept the evidence of Mr Komninos, supported by the documentary evidence, that the accused subsequently increased the Contract Amount on the option agreement to $1,465,950. This evidences the accused’s acceptance of the terms of the agreement, namely, that in exchange for Mr Komninos paying the accused $17,000 for development costs, the accused would increase the Contract Amount on the option agreement to $1.45M.
Although the terms of this agreement were not (otherwise) documented by Mr Komninos, there was no need for any further record of the agreement to be made having regard to the terms of the email of 11 November 2015, the fact of the subsequent transfer of the $17,000 and the fact the option agreement was amended as promised by the accused.
As to the particulars of the representation as pleaded (namely a request for money for architectural concept drawings), the prosecutor highlighted the evidence given by Mr Komninos in cross-examination, wherein he stated:[355]
It was made explicitly clear to me that the money would be used for development costs, architectural, engineer drawings, studies, so forth.
[355] T 191.23-25.
Counsel for the accused submitted that the prosecution had failed to prove the first element, in circumstances where the evidence given by Mr Komninos as to the representation made, namely that the accused needed money for development costs, differed from the representation as pleaded, namely that money was requested for architectural concept drawings. Counsel was critical of the prosecution’s reliance on evidence of the substance of the representation offered only in cross-examination.
However, an analysis of the evidence shows that the evidence outlined above, given in cross-examination, in fact mirrored that given by Mr Komninos during examination-in-chief, when he was asked why he gave the accused $17,000, namely:[356]
A.It was the agreement that we had with Ili where he said if we paid for the up-front development of the project, he would give us an uplift in the option price of our property.
Q.Did you and your wife give him that money for him to spend, in a general sense, on himself.
A.No, it was made, specifically, clear to me from Ili that the money was to be used for the project development cost, the architectural drawings and the consultant reports, and so forth, to get development approval.
[356] T 173.1-10.
I refer to my findings at paragraphs 409 to 413.
I have carefully considered all of the evidence given by Mr Komninos. His recollection of the discussion at the Santos Café includes a clear recollection of the accused discussing the possibility of the development becoming bigger than that originally foreshadowed, thus resulting in an increase in development costs. Such development costs must necessarily have included the costs associated with drafting the plans for the proposed bigger development, consistent with Mr Komninos’ evidence given both in chief and in cross-examination.
I am satisfied that the Information as particularised gave the accused fair notice of the charge against him as to count 3.
I am satisfied beyond reasonable doubt, from the evidence of Mr Komninos, supported by the contents of his email to the accused dated 11 November 2015, that the accused made a representation to Mr Komninos, namely that if Mr Komninos (and his wife) paid him $17,000 for development costs, including costs for architectural concept drawings, he would increase the Contract Amount on the option agreement to $1.45M.
I accept the evidence of Mr Komninos wherein he rejected the proposition put to him in cross-examination that the reason he paid the accused $17,000 was simply to achieve an increase in the Contract Amount.
I accept the evidence of Mr Komninos that he transferred the sum of $17,000 to the accused only after it had been made explicitly clear to him by the accused that the money would be used for the project development costs, including architectural concept drawings. I am therefore satisfied beyond reasonable doubt that the making of the representation by the accused was a substantial cause of the subsequent transfer by Mr Komninos of the sum of $17,000 to the accused, and thus that the accused’s representation caused him to obtain a financial advantage (or benefit).
I am satisfied beyond reasonable doubt that Mr Komninos made two payments, each of $8,500 to the accused’s Commonwealth NetBank Saver account ending -629, on 13 November 2015 and 14 November 2015 respectively. I am satisfied beyond reasonable doubt that the accused obtained a financial advantage or benefit in the sum of $17,000.
I refer to my discussion at paragraphs 464 to 471 as to the use of the $17,000 transferred to the accused by Mr Komninos. The funds provided can be traced as outlined therein. Those funds were not transferred to any other account held by the accused from which he could have theoretically made payment of development related expenses.
Although some of the funds were withdrawn in cash by the accused, I refer to my findings as set forth in paragraphs 435, 438, 439 and 447 to 450 as to the accused’s role in the development and the resulting expenses thus incurred by him in performing that role. Even if there was any responsibility for the accused to pay for project development costs, including architectural drawings, which there was not, I exclude as a reasonable possibility, that cash withdrawn by the accused was used to make such payments. This was a large commercial development. Any such expenses incurred and paid for would, by necessity, for taxation purposes, be properly documented and traceable.
I am satisfied beyond reasonable doubt that the accused did not use any of the $17,000 transferred to him by Mr Komninos to fund architectural drawings (or engineering drawings or studies for the development), as represented by the accused to Mr Komninos. Rather, I am satisfied beyond reasonable doubt that the accused used the $17,000 to fund his own lifestyle.
I am satisfied beyond reasonable doubt that the accused’s representation was false or misleading, in that he did not need money for development costs, including architectural concept drawings.
Further, I am satisfied beyond reasonable doubt that the accused’s conduct, in obtaining the financial advantage, was dishonest. I am satisfied that at the time he made the representation, the accused knew the money would not be used by him to fund development costs, including architectural drawings, as he had no obligation to fund such costs. He knew the representation was false and that in fact he needed money to pay for his living expenses. The fact Mr Papagiannis was not present at the time the option agreement was amended, nor informed off the same in order to draft an appropriate addendum to the sale contract, demonstrates that the accused did not wish his conduct to be known by Mr Papagiannis, thus being circumstantial evidence supporting the finding of dishonesty.
I find the accused guilty of count 3.
Count 4
Count 4 relates to the accused’s alleged representation made to Mr Komninos between 18 January 2016 and 6 March 2016, that he needed money ‘to finance plans’ for the development, and that if Mr Komninos paid to him the sum of $70,000, he would increase the Contract Amount on the option agreement to $3,084,000.
The prosecution relies on the oral evidence of Mr Komninos, supported by the documentary evidence, to prove the representation was made.
I accept the evidence of Mr Komninos, supported by the contents of Exhibit P1, and find beyond reasonable doubt that Mr Komninos made seven separate transfers, each of $10,000, to the accused’s Commonwealth NetBank Saver account ending -629, between 18 February 2016 and 7 March 2016. I am satisfied beyond reasonable doubt that the accused obtained a financial advantage of $70,000.
Mr Komninos described several different occasions when he either met with or spoke to the accused before transferring him any part of the $70,000, to explain why he transferred this money to the accused.
Mr Komninos had a note of receiving a telephone call from the accused on 19 January 2016. He recalled the accused telling him that they had just signed a developer and that there would be a letter sent shortly to confirm that. He also recalled the accused saying that he was looking for a further financial contribution to pay for what was going to be a substantially bigger development than originally planned.
Mr Komninos’ notes recorded that the accused ‘was looking for $’ and ‘contribution in the form of a loan’. The notes made no reference to the contribution being towards the costs of the development.
Mr Komninos explained that when making his notes, he simply wrote down what the accused had said to him at the time, but his recollection was that the accused was looking for money to use towards development approval costs.
As to the use of the word ‘loan’ in his notes, Mr Komninos said this was a term used by the accused interchangeably with the words ‘contribution’ or ‘investment’. However, he said the accused ‘was absolutely clear that the money was to be used for the development and I would, in return, receive an uplift in the price’.[357]
[357] T 194.25-28.
Mr Komninos was cross-examined about the true nature of the contribution made by him, so as to determine if it was, in fact, a loan. Mr Komninos gave evidence, which I accept, that he did not expect the money to be repaid to him in circumstances where the accused tried, unsuccessfully, to undertake the development (for example, if he could not get finance or approval), and he was willing to accept that risk.[358] However, he said the accused promised to repay the money, if they decided not to go ahead with the development, on the basis that it was uneconomical to do so.[359]
[358] T 194.28-36.
[359] T 195.3-8.
Mr Komninos kept notes of a further conversation he had with the accused on 28 January 2016, wherein he told the accused he was between jobs, but may be willing to ‘invest’ an amount in the development, subject to him undertaking appropriate due diligence, including seeing a copy of the agreement with Warren Design. Mr Komninos agreed his notes of that conversation made no specific reference to any contribution being for development costs.
Mr Komninos gave evidence that the accused attended at his home on 3 February 2016 and he made notes of what occurred during that attendance. By reference to such notes, Mr Komninos gave evidence, relevantly, that the accused told him he was intending to form a joint venture with Robert Warren to undertake the development, they had started the design work and were speaking with a debt financier. The notes recorded that the accused told him there was ‘zero risk of this project falling over’ and that finance was approved, but that ‘he needs money up-front as he won’t make anything for a while’. The accused had said they needed to change the design to suit the Development Assessment Commission.[360]
[360] T 176.32-178.5; T 178.19-37.
Importantly, Mr Komninos’ notes recorded that the accused said:[361]
…he has done a deal with John and Marios in terms of them contributing to the cost and we will be the third. (my emphasis)
[361] T 178.3-5.
I accept the evidence of Mr Komninos that what the accused was referring to in terms of doing a deal, was that in exchange for him making a contribution towards the development costs, the accused would increase the Contract Amount on his option agreement.[362]
[362] T 179.10-13.
Importantly, on 13 February 2016, Mr Komninos sent an email to the accused wherein he expressly referred to his recent meeting and to the prospect of he and his wife ‘contributing to the upfront costs for the Thorngate development’. In that email he offered to contribute $70,000 for an increase in the Contract Amount to $3.5M.[363]
[363] Exhibit P17.
Although there is no evidence that the accused either received or responded to that email, Mr Komninos gave evidence, which I accept, that thereafter he had a further meeting with the accused on 15 February 2016, at which time he told the accused he and his wife would contribute $70,000 for the development approval costs in exchange for an uplift in the Contract Amount, and that various figures were discussed.
Mr Komninos was cross-examined as to the meaning of the SMS exchange he had with the accused on 17 February 2016, as outlined at paragraph 274 herein, and specifically it was put to him that this email in fact comprised the only terms of any deal he had made with the accused pertaining to the provision of the $70,000.
I accept the evidence given by Mr Komninos in response, namely:[364]
The deal I made was to give money to Ili to help him get this project off the ground and in return he would increase the option price on my house to $3 million.
[364] T 203.38-204.2.
Having regard to the notes made by Mr Komninos of the meeting on 3 February 2016, I am satisfied that the ‘upfront costs’ (being the words used by Mr Komninos in his email of 13 February 2016), were the costs described by the accused on 3 February 2016 to change the design in order to obtain DAC approval, in other words, costs for plans for the development.
There was nine days between the fourth transfer of $10,000 to the accused on 23 February 2016 and the fifth transfer of $10,000 made on 3 March 2016. I accept the evidence of Mr Komninos that after making the fourth transfer, he was getting cold feet, but that he was comforted after speaking with the accused and being reassured the development was proceeding. The delay in the payment of the final $30,000 is irrelevant, in my view, in determining whether the alleged representation was made by the accused.
I have carefully considered all of Mr Komninos’ evidence. I am satisfied that in his various discussions with Mr Komninos between 19 January 2016 and 1 March 2016, the accused represented to Mr Komninos that the development was going to be a much more substantial development, which would involve significant upfront costs, including costs to change the design to suit the Development Approval Commission.
I am further satisfied, both from the evidence given by Mr Komninos and the contents of his email to the accused dated 13 February 2016, that the accused asked Mr Komninos to contribute a sum towards the ‘upfront costs’ of the development, in exchange for an increase in the Contract Amount on the option agreement.
I am satisfied beyond reasonable doubt that the accused made a representation to Mr Komninos between 18 January 2016 and 6 March 2016, that he needed money to fund the upfront costs of the development, with such costs expressly stated to include the costs incurred to change the design, having regard to the fact the development was going to be substantially larger than originally intended, and/or to satisfy the Development Approval Commission, and that if Mr Komninos (and his wife) paid him $70,000 for such costs, he would increase the Contract Amount on the option agreement to $3M.
I am satisfied that such representation therefore encapsulates that as particularised in the Information, namely that the accused needed money ‘to finance plans’ for the development such that the accused has had fair notice of the charge against him in count 4.
I accept the evidence of Mr Komninos wherein he rejected the proposition put to him in cross-examination that the reason he paid the accused $70,000 was simply to achieve an increase in the Contract Amount.
I accept the evidence of Mr Komninos that he transferred the sum of $70,000 to the accused in order to help him fund the development costs for what was going to be a much larger project, with such costs including architectural drawings, plans and studies. I am therefore satisfied beyond reasonable doubt that the making of the representation by the accused was a substantial cause of the subsequent transfer by Mr Komninos of the sum of $70,000 to the accused, and thus that the accused’s representation caused the accused to obtain a financial advantage (or benefit) in the sum of $70,000.
I refer to my discussion at paragraphs 472 to 487 as to the use of the $70,000 transferred to the accused by Mr Komninos. The funds provided can be traced as outlined therein. Those funds were not transferred to any other account held by the accused from which he could have theoretically made payment of development related expenses.
Some of the funds were withdrawn in cash by the accused. However, I am satisfied beyond reasonable doubt that such cash withdrawals were not used to pay for development costs, including plans. There was no requirement for the accused to pay for any such costs having regard to the terms of the Warren Agreement, executed on 7 January 2016 and therefore prior to the accused’s representation and the payments made by Mr Komninos.
Even if there was any requirement on the accused to pay for such expenses, I exclude as a reasonable possibility, that cash withdrawn by the accused was used to make such payments. This was a commercial development. As previously stated, any such expenses incurred and paid for would, by necessity, for taxation purposes, be properly documented and traceable.
I am satisfied beyond reasonable doubt that the accused did not use any of the $70,000 transferred to him by Mr Komninos to fund upfront costs for the development of the type as represented by the accused, namely architectural drawings, plans and studies. Rather, I am satisfied beyond reasonable doubt that the accused used the $70,000 to fund his own lifestyle, in circumstances where he never in fact incurred any expenses of the type he described to Mr Komninos, nor paid any such expenses.
I am satisfied beyond reasonable doubt that the accused’s representation was false. He did not need the $70,000 to pay development costs, including the costs of plans. He needed the money to fund his own living expenses.
Further, I am satisfied beyond reasonable doubt that the accused’s conduct, in obtaining the financial advantage, was dishonest. I am satisfied that at the time he made the representation, the accused knew the money would not be used by him to fund upfront costs for the development, and specifically plans, as he had no obligation to fund such costs. He knew the representation was false and that in fact he needed money to pay for his living expenses.
Again, the fact Mr Papagiannis was not present at the time the option agreement was further amended and increased to $3,033,000, nor was he informed in order to draft an appropriate addendum to the sale contract, demonstrates that the accused did not wish his conduct to be known by Mr Papagiannis, thus being circumstantial evidence supporting the finding of dishonesty.

I find the accused guilty of count 4.
Counts 5, 6 and 7
Although I have considered each of these counts separately, the following observations apply to each of these three counts.
I acknowledge the difficulties Mr Ragnelli experienced in giving evidence associated with his inability to properly see and therefore to read various documents. However, putting those difficulties to one side, Mr Ragnelli’s evidence was very general in nature and lacked specificity as to when certain events occurred and/or any precise details as to what was said and/or agreed between the parties.
While I do not doubt Mr Ragnelli’s honesty, it seemed to me that he had only a vague recollection of events, such that the accuracy of his responses, and therefore the reliability of his evidence, is somewhat doubtful.
Mr Ragnelli and the accused formed a very close friendship in the period between 2015 and 2017. The friendship was such that they each borrowed and loaned the other considerable sums of money, and the Ragnellis even agreed to buy 8 Thorngate Street, and rent it back to the accused, where they had to refinance to do so.
Between 4 May 2016 (being a date at or around the time of purchase of 8 Thorngate Street) to 10 March 2017, the accused paid a sum of $92,000 into Mr Ragnelli’s accounts.[365] However, it is apparent from Exhibit D35, being copies of SMS messages exchanged between Mr Ragnelli and the accused, that, in addition to this sum, the accused paid further sums into accounts held either by Mr Ragnelli or Mrs Ragnelli as follows:
[365] As per Schedule entitled ‘Mr Cakar’s transfers to Giovanni Ragnelli 30 March 2015 to 1 July 2017’.
8 April 2017 - $7,000 to account ending -732, description ‘elli’.
14 July 2017 - $3,000 to account ending -732., description ‘Thorngate’.
1 August 2017 - $2,000 to account ending -732, description ‘elli’.
11 September 2017 - $6,000 to account ending -732, description ‘consulting’.
16 September 2017 - $2,000 to account ending -732, description ‘Elli’.
23 September 2017 - $2,000 to account ending -732.
3 October 2017 - $5,000 to account ending -732, description ‘Elli’.
13 October 2017 - $20,000 to account ending -732, description ‘loan’.
13 October 2017 - $20,0000 to Mrs Ragnelli’s account ending -155, description ‘loan’.
1 December 2017 - $25,000 to account ending -732, description ‘loan’.
Therefore, on my calculations, between 4 May 2016 and 1 December 2017, the accused made payments to Mr and Mrs Ragnelli totalling $184,000.
Some of those payments were clearly loans made to Mr and Mrs Ragnelli. I am satisfied, based on the contents of Exhibit D35, that the two transfers, each of $20,000, made by the accused to Mr Ragnelli and to Mrs Ragnelli on 13 October 2017 were monies loaned to them, notwithstanding Mr Ragnelli’s evidence that these sums were payments by way of rent.
The transaction showing the final payment of $25,000 on 1 December 2017 bears the reference ‘loan’. Whether that payment was a repayment by the accused of monies he had borrowed from the Ragnellis, or a loan to Mr Ragnelli, is uncertain. Unfortunately, there is insufficient evidence before the Court to determine precisely how much money was in fact loaned to the accused by Mr and Mrs Ragnelli and to what extent that money was repaid by him.
Mr Ragnelli gave evidence that the accused made a payment of $10,000 by way of a deposit for his purchase of 8 Thorngate Street, being monies they retained when that sale did not proceed.[366]
[366] T 362.35-363.4.
As to the other $174,000, at least some of that money must relate to rent pertaining to 8 Thorngate Street. That rent was fixed at $850/week.[367] The accused commenced living at 8 Thorngate Street on Friday 13 May 2016.[368] There was no evidence as to precisely when the accused moved out of that residence, but even if it is assumed that he remained living there until Friday 15 December 2017, being shortly after the date of the last known payment by the accused to the Ragnellis, the total rent incurred during that period of 83 weeks, at $850/week, is $70,550.
[367] T 362.5-10.
[368] Exhibit D10, letter from MKRE to residents dated 9 May 2016.
As such, there is a lacuna in the evidence as to precisely what the other monies paid by the accused to Mr and Mrs Ragnelli relate to, and whether, for example, they could represent repayment of any of the sums transferred to the accused which are the subject of counts 5, 6 or 7. While there is no requirement for the prosecution to prove as to any of these counts, that Mr Ragnelli suffered a ‘detriment’, this absence of evidence, and Mr Ragnelli’s insistence that all of the monies paid to him by the accused were for rent, is relevant in terms of my assessment of the reliability of Mr Ragnelli’s evidence, that being critical to any finding of guilt as to counts 5, 6 and/or 7.
As to counts 6 and 7, the evidence given by Mr Ragnelli as to the basis upon which he transferred the monies to the accused was extremely limited. There was no evidence as to when or where any discussions took place with the accused which then led to Mr and Mrs Ragnelli’s decision to ‘lend’ the accused $150,000, or the further sum of $30,000. Further, Mr Ragnelli was not asked and did not give evidence as to why he and his wife decided to pay the accused these sums, to properly provide the required causal link between the making of any alleged representation (first element) with the obtaining of the benefit by the accused (fourth element).
As to count 6, the only evidence given by Mr Ragnelli as to any representation made by the accused was that the project was going to go ahead, that they would be going to planning with the government and that ‘was going to cost a bit of money to do, so he needed another loan’.[369] He said the accused asked for $200,000, but they could only do $150,000.[370]
[369] T 317.23-24.
[370] T 317.24-26.
This evidence is insufficient to satisfy me beyond reasonable doubt that the accused made a representation to Mr Ragnelli that if he gave (or loaned) him $150,000, that money would be used by him for purposes relating to the development, and in particular for ‘planning applications’. I note the limited evidence given by Mr Ragnelli as to the discussions pertaining to this transfer and the lack of any documentation recording any specific agreement reached between Mr Ragnelli and the accused as to this transfer. I have also had regard to Mr Ragnelli’s own description of the monies as a ‘loan’, both in his evidence and in the reference he attributed to the payment at the time of transfer.
I cannot exclude as a reasonable possibility that the payment made by Mr and Mrs Ragnelli to the accused of $150,000 was simply a loan, to be used by the accused how he saw fit. Even if the representation relied upon by the prosecution was made, I cannot exclude as a reasonable possibility, that the claimed representation was not a substantial or significant cause for the transfer of the $150,000 by Mr Ragnelli to the accused. Specifically, I cannot exclude as a reasonable possibility that the transfer was made simply because of the nature of the friendship between the accused and Mr Ragnelli, being one wherein each borrowed money from the other from time to time, to help each other out.
I find the accused not guilty of count 6.
As to count 7, the only evidence given by Mr Ragnelli as to any representation made by the accused was that ‘he needed money for the planning again and he was going to the government and the documentation was costing him money’. He said that he and his wife agreed to give the accused $30,000, and that the accused said that as a result he would purchase both properties (ie 14 Main North Road and 8 Thorngate Street) for $7 million.
This evidence is not consistent with count 7 as particularised, namely that in exchange for the sum of $30,000, the accused said he would increase the purchase price on the option agreement (for 14 Main North Road) to $7 million.
Again, this evidence is insufficient for me to be satisfied beyond reasonable doubt that the accused made a representation to Mr Ragnelli that if Mr Ragnelli gave (or loaned) him the sum of $30,000, that money would be used for purposes related to the development, and specifically for ‘architectural drawings’. Again, I cannot exclude as a reasonable possibility that the decision Mr and Mrs Ragnelli made to lend the accused a further sum of $30,000, was not caused by any alleged representation of this type and was rather simply another example of the Ragnellis lending the accused money to help him out, from time to time, as he did with them.
I find the accused not guilty of count 7.
As to count 5, the prosecution case is that the accused made a representation to Mr Ragnelli that if Mr Ragnelli gave (or loaned) him $80,000, that such money would be used on ‘upfront running costs’ for the development, and that in exchange the accused would increase the Contract Amount on the option agreement to $3,551,300.
The evidence given by Mr Ragnelli as to the events leading up to the decision made by him and his wife to transfer the sum of $80,000 to the accused, being the monies the subject of count 5, contained more detail than that relating to the subsequent payments (and counts).
Mr Ragnelli gave evidence that at a dinner at their home, the accused told them that he needed money for the development, that there were start-up costs relating to the design and engineering and that he needed money from residents to get this started. Further, Mr Ragnelli gave evidence that he gave the accused the $80,000 ‘for the architect drawings and engineers, whatever he needed to put together for council’ and in cross-examination he reiterated that the accused had told him he needed money for the running costs to run the project.
I note my earlier observations as to Mr Ragnelli’s evidence. His evidence generally lacked detail and several of his responses appeared inaccurate and akin to guesses. By way of example, Mr Ragnelli gave evidence that the amendment made to the option agreement to increase the Contract Amount to $3,551,000 was made before he had transferred any sum of money to the accused, which seems unlikely.[371] He gave evidence that the two sums of $20,000 transferred by the accused to accounts held by him and his wife in October 2017 were for rent, when the text messages exchanged demonstrated they were, in fact, loans by the accused to him and his wife. He generally attributed every payment made to him by the accused as relating to rent, in circumstances where that simply could not have been the case, having regard to the total of payments made.
[371] T 334.35-335.8.
In those circumstances, I have some doubts as to the overall reliability of Mr Ragnelli’s evidence.
I do not doubt that the accused and Mr Ragnelli discussed the progress of the development and the costs associated with it, on many occasions. However, having carefully considered Mr Ragnelli’s evidence, I simply cannot be satisfied beyond reasonable doubt that the accused made a representation to Mr Ragnelli that if he gave (or loaned) him $80,000, that such money would be used on ‘upfront running costs’ for the development, and that such representation caused Mr Ragnelli to then transfer the sum of $80,000 to the accused. As such, I cannot be satisfied beyond reasonable doubt of the accused’s guilt as to count 5.
Verdicts
I find the accused guilty of counts 3 and 4.
I find the accused not guilty of counts 1, 2, 5, 6 and 7.