R v Milewich - [2022] SADC 70

District Court of South Australia
(Criminal)
R v MILEWICH
Criminal Trial by Judge Alone
[2022] SADC 70
Reasons for the Verdicts of her Honour Judge Telfer
6 June 2022
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
The accused is charged with one count of aggravated dishonest dealing with documents and one count of aggravated theft. Both charges are alleged to arise out of events concerning the accused's mother's will and the events which followed her death in 2013 with respect to dealings with her estate.
With respect to count 1, the accused is alleged to have produced a will purported to have been executed by his mother shortly before her death to his sister, Ms Liemareff, through her lawyers. It is alleged that this document was false and the accused sought to deceive his sister as to her entitlement from the estate.
With respect to count 2, the accused is alleged to have committed theft of monies entrusted to him in the capacity as executor of his mother's estate following a grant of probate.
Held:
Count 1 - not guilty
Count 2 - not guilty
Criminal Law Consolidation Act 1935 (SA) s 140(4), 134(1), 131(2)(5), 130; Juries Act 1927 (SA); Evidence Act 1929 (SA); Inheritance (Family Provision) Act 1972 (SA); Trustee Act 1936 (SA) s 6, referred to.
R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; Adami v The Queen [1959] HCA 70; R v Baftiroski [2018] SASCFC 83; R v Mazzone (1985) 43 SASR 330, considered.

R v MILEWICH
[2022] SADC 70

The accused Nicholai Milewich is charged with the following counts:
1.Aggravated Dishonest Dealing with Documents (section 140(4) of the Criminal Law Consolidation Act 1935).
2.Aggravated Theft (section 134(1) of the Criminal Law Consolidation Act 1935).
Both charges concern the will of the accused’s mother Nadia Milewich, and the events which occurred following her death in 2013. The accused was present at the time when a document purporting to be Nadia Milewich’s will was executed, and he subsequently was appointed executor of her estate. His conduct in each of those settings is the subject of the charges in this trial.
The accused elected for trial by Judge alone pursuant to section 7 of the Juries Act 1927.
Factual Overview
Nadia Milewich was born in China of Russian origin. She came to Australia as an adult and her first language was Russian. Mrs Milewich had three children: the accused Nicholai Milewich (Nick), Walter Milewich (Wally), and Svetlana Liemareff (nee Milewich).
Mrs Milewich passed away on 10 August 2013.
At the time of her passing Mrs Milewich owned two properties, each of which she owned freehold. Prior to her death she lived in one of those properties at 38 Fourth Avenue Cheltenham (‘the Cheltenham property’) with her son Walter Milewich. The accused lived in the second property at 35 Victoria Street Queenstown (‘the Queenstown property’). Mrs Milewich’s daughter, Svetlana Liemareff was married, had children and lived in a home not owned by her Mother.
Following Mrs Milewich’s passing, a will was identified by the accused which appeared on its face have been executed by her on 7 July 2013 (‘the 2013 will’). This will left the Queenstown property to the accused, the Cheltenham property to Walter Milewich and cash in the amount of $60,000 to Svetlana Liemareff. The circumstances of the execution of this will were explored in evidence at trial and are relevant to count one. Count one alleges that the accused committed the offence of dishonest dealing with documents by the presentation of this will to Mrs Liemareff through her lawyers. It is alleged that the document was false. Particulars of the falsity were that the signature on that document was not the signature of the testator Mrs Milewich.
After negotiations between the accused and his sister Mrs Liemareff about the legitimacy of the 2013 will, the accused obtained probate on an earlier will, executed by Mrs Milewich on 22 June 1995 (‘the 1995 will’). That earlier will provided for a division of assets which was much more favourable to Mrs Liemareff than the 2013 will. It permitted the real estate assets to be liquidated and required that the proceeds be distributed in equal shares between the three children.
After the grant of probate, the two properties were sold and the proceeds, after the deduction of fees, were paid into an account opened by the accused in the name of ‘The Estate of the late Nadia Milewich’. This payment was made on 28 November 2016. The total proceeds deposited from the sale of both properties was $982,756.84.
The day after the deposit of those funds, an electronic transfer of

$760,100.00 was made from the estate account to an account operated by City Gold Bullion, a business which sold gold bullion to the general public. The transfer was payment for the purchase of approximately 14.5 kilograms of gold bullion. This transfer is the subject of count 2, aggravated theft.
Elements of the Offences
Count One, aggravated dishonest dealing with documents, requires proof of the following elements (as particularised):
1.The accused engaged in conduct to which section 140 of the Criminal Law Consolidation Act (the CLCA) applies – namely, produced, or caused to be produced a document.
2.The document was false (as defined in section 140(1) of the CLCA) in the sense that it gave a false or misleading impression about who had signed the will, and therefore about the nature, validity and effect of the document.
3.The accused knew that the document was false.
4.In engaging in the conduct at paragraph one, the accused sought to deceive (as defined in section 130) Svetlana Liemareff as to her entitlement.
5.By means of that conduct, the accused intended to cause a detriment to Svetlana Liermareff in the sense that the 2013 will provided for gift of lower value than that in the 1995 will.
6.The conduct of the accused was dishonest (as defined in section 131).
The aggravating feature requires the prosecution to prove that the accused committed the offence while he held a position of trust – namely as executor and trustee of the estate of the late Nadia Milewich. The prosecution conceded during closing submissions that the aggravating feature could not be made out, as at the date that the dishonest dealing was alleged, the accused had not yet been appointed by the Supreme Court as the executor and trustee of the estate.
Count two, aggravated theft, requires proof of the following elements:
1.The accused dealt with property (as defined in section 130).
2.The dealing was dishonest (as defined in section 131).
3.The accused’s dealing with the property was without the consent of the owner (as defined in section 130).
4.The accused intended to permanently deprive the owner of the property, or make a serious encroachment on the owner’s proprietary rights.
The aggravating feature requires the prosecution to prove that the accused committed the offence while he held a position of trust as executor and trustee of the estate of the late Nadia Milewich.
Preliminary Directions
In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:[1]
It has not yet been possible for the Court to accumulate a body of precedent regarding the approaches to be taken by a judge instructing himself or herself on the applicable principles of law. It seems to have been assumed that the judge is bound to record (as if in an instruction to a jury) the considerations which have been taken into account in reaching the determination on the issue of guilt. It also seems to have been assumed that the same explanations for adopting one course rather than another, which are regularly used to justify decisions at trial before a jury, are to be incorporated, without modification, in a trial before a judge sitting alone. I question these assumptions. It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. It should be perfectly possible for the judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required.
The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal. (references omitted)
[1] R v Winner (1995) 79 A Crim R 528 at 30-531, cited in R v Keyte (2000) 78 SASR 68 at [54].
With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter.
Presumption of Innocence and Right to Silence
Mr Milewich has the presumption of innocence in his favour. He is innocent of the charge unless and until the prosecution prove his guilt beyond a reasonable doubt, and he need not prove anything. Mr Milewich cannot be convicted on either count unless the relevant evidence proves the elements to the requisite standard.
In this matter the accused chose not to give evidence. He was under no obligation to do so, and I draw no inference from the fact that he exercised his right to silence at trial. Evidence was led that upon his arrest the accused exercised his right not to answer police questions. I similarly draw no inference from the accused having exercised his lawful right.
Cross Admissibility and Discreditable Conduct
Mr Milewich faces two charges. I consider that although they are properly joined, and some aspects of the evidence led at trial is relevant to the proof of each, it is not appropriate to consider the conduct charged under count one as cross-admissible as to count two, and vice versa.
The prosecution did not submit that the conduct alleged as count one was relevant to count two, either by way of propensity reasoning or as evidence of a motive.
I have considered the two counts separately and my conclusions as to each are not relevant to proof of the other.
Vulnerable Witness Provisions
The witness Mrs Liemareff gave evidence with the assistance of a one-way screen. Permission for this special arrangement was granted pursuant to section 13 of the Evidence Act 1929. I direct myself that I may not draw any inference adverse to the accused from the making of that arrangement, and I must not permit it to influence the weight to be given to the evidence given by Mrs Liemareff.
The Prosecution Case
Nine witnesses were called on the prosecution case. The witnesses included three family members of the accused: Mrs Svetlana Liemareff, Ms Nellie Liemareff and Mrs Katy Spurling. Mrs Spurling and Ms Nellie Liemareff are the daughters of Mrs Liemareff and nieces of the accused. Ms Hannah Andreyev and Mr David Bentley are both legal practitioners who provided legal advice to Mrs Milewich and the accused, and Mrs Liemareff respectively. Mr Peter Cirocco and Mr George Gonis each gave evidence as to the circumstances in which the 2013 will was signed. Mr Nathan Gollan is the Manager of City Gold Bullion, a gold retailer where approximately $750,000 was spent by the accused on gold. He gave evidence as to the circumstances of that purchase. Finally, Detective Aaron Kelly gave evidence about the search of the accused’s property in July 2018. Agreed facts were tendered which summarised bank records recording the relevant transactions, and provided some information about the accused’s financial position.[2]
[2] P30.
There was limited cross-examination of any of the witnesses. This is not a case where it is necessary for me to make detailed findings about which witnesses can be relied upon. I am satisfied that all the witnesses who gave evidence before me did their best to tell the truth, according to their memories. Whether either or both of the charges have been proved depends on whether I am prepared to draw the inferences sought by the prosecution beyond a reasonable doubt. With respect to the evidence of Mrs Liemareff I am satisfied that she was a truthful witness. The reliability of her evidence as to the signature on the disputed will is dealt with later in these reasons.
Family Witnesses
Mrs Spurling is the grand-daughter of Mrs Milewich. In the years prior to Mrs Milewich’s death Mrs Spurling had spent periods of time living with her and providing full time care as her health deteriorated.
At the beginning of 2011 Mrs Leimaroff decided that Mrs Spurling would move into the Cheltenham house to provide full time care to Mrs Milewich.[3] At this time Mrs Milewich needed daily assistance with cooking, bathing, toileting, dressing, taking the correct medication and attending medical appointments.[4] Mrs Milewich would wake during the night in a state of confusion, and would often suffer periods of confusion during the day.[5]
[3]     T183-184.
[4]     T184-185, 188.
[5]     T185, 188.
Mrs Spurling moved into Mrs Milewich’s home at Cheltenham in 2011. Prior to that time she would visit frequently to perform domestic work. She would also make social visits.[6]
[6] T180-181.
Mrs Spurling would transport her grandmother to medical appointments once she obtained her driver’s licence. She agreed in cross examination that prior to that time it had been the accused who would take Mrs Milewich to medical appointments.[7]
[7] T196.
After living in and performing caring duties for about twelve months, Mrs Spurling and the accused had a disagreement and she moved out of the Cheltenham home.[8]
[8] T188-189.
Three months prior to Mrs Milewich’s passing, in about May 2013, Mrs Spurling moved back into the Cheltenham home.[9] She noticed that her grandmother had deteriorated both physically and mentally since she had moved out and she had difficulty holding conversations. She would spend more time sitting in her chair “zoning out”.[10] She still recognised members of her family, but sometimes became confused and called Mrs Spurling by her sister’s name. Mrs Spurling stayed living at the Cheltenham house until after Mrs Milewich passed away.
[9] T189.
[10] T189.
Mrs Spurling spoke only a little Russian. She would speak to her grandmother in a combination of Russian and English words. She observed that her grandmother would speak Russian to her three children and her books were all in the Russian language. Mrs Milewich could skim an English language newspaper, reading the headlines, and look up a telephone number in the telephone book.[11]
[11] T181-182.
Mrs Liemareff also gave evidence about her Mother’s English language skills. She said that she would speak to her mother in both Russian and English.[12]   She did not believe that her Mother’s English language skill would permit her to read and understand the terms of the 2013 will.[13]
[12]   T232.
[13]   T241-242.
Mrs Liemareff gave evidence about the circumstances in which her two brothers Walter and the accused occupied each of the properties owned by Mrs Milewich. She told the court that the accused did not pay rent but paid a share of the utilities and council rates. Her brother Walter Milewich paid gas and electricity. He also paid rent for a time, but subsequently stopped.[14]
[14] T233-234.
Ms Nellie Liemareff, the sister of Mrs Spurling and daughter of Mrs Svetlana Liemareff, gave evidence about a conversation she had with the accused in the context of legal action surrounding the will. That evidence will be considered later.
The Will
A document purporting to be the will of Nadia Liemareff, signed and witnessed on 22 June 1995 was tendered in evidence.[15] Probate on this will was granted to the accused on 23 March 2016. The will provided for the estate to be distributed in equal shares to the three children, Walter Milewich, Svetlana Liemareff and the accused.
[15] P2.
A second will was also tendered.[16] Evidence was called as to the circumstances in which this will was drafted and signed. This will was purported to have been signed by Nadia Milewich on 7 July 2013, with her signature witnessed by Peter Cirocco and George Gonis.
[16] P5.
Evidence was given by Ms Andreyev, an experienced wills and estates lawyer. On 9 October 2012 Ms Andreyev met with Mrs Milewich and the accused. The purpose of the appointment was to take instructions for the preparation of a new will. Mrs Milewich attended the appointment using a wheelchair and spoke mainly in Russian. She responded to questions using some English, but most communication between Ms Andreyev and Mrs Milewich was done with the accused interpreting both the questions and answers. The accused told Ms Andreyev that his mother was suffering from dementia.
Ms Andreyev took instructions using the accused as an interpreter guided by a document identified as a client profile questionnaire.[17] On that document Ms Andreyev recorded what she understood, given the limitations of language and cognition, to be Ms Milewich’s instructions for a new will. The client profile questionnaire recorded instructions for the two pieces of real estate to be left to her two sons: Queenstown to the accused and Cheltenham to Walter Milewich. Svetlana Liemareff’s share of the estate was significantly reduced from the 1995 will, with a cash gift of $60,000 bequeath to her. The client profile questionnaire was signed by Mrs Milewich, and the application of her signature was witnessed by Ms Andreyev.
[17] P3.
Ms Andreyev told the accused at the appointment that it would be necessary, prior to the will being signed, to have it translated into Russian by an independent interpreter, and that a medical certificate would need to be obtained regarding Mrs Milewich’s testamentary capacity.[18] She did not consider that the translation that had occurred in her office by the accused to be an adequate assurance that Mrs Milewich understood the implications of the document.[19] Ms Andreyev said she would not have witnessed a will generated from those instructions without a medical certificate and an independent interpreter.[20]
[18]   T207-209.
[19]   T208-209.
[20]   T209.
On 6 June 2013, eight months after the initial appointment, the accused telephoned Ms Andreyev and said that his Mother wished to go ahead with the drafting of the will, with some amendments. He said the amendments concerned the $60,000 to be paid to Svetlana Liemeraff. That money was not to come from the estate, but was to be paid by Walter Milewich and the accused.[21]
[21] T210.

The accused told Ms Andreyev that Mrs Milewich was in hospital having had a fall, but her health had not deteriorated and she remained keen to make a new will.
In a follow-up telephone call the next day, the 7^th of June, Ms Andreyev reminded the accused of the need to obtain a medical certificate and independent translator. The accused said he would arrange those things and contact her again.
After the conversation of 6 June 2013 Ms Andreyev prepared a draft will based on the instructions she had obtained at the meeting the previous year when Mrs Milewich had been in attendance. A draft power of guardianship and power of attorney were also prepared.
Ms Andreyev posted the documents that she had drafted to the accused. She sent them by post, addressed “Care of Nick Milewich, 35 Victoria Street Queenstown”. This was the accused’s address. Mrs Milewich lived at Cheltenham. The package posted included a letter addressed to the accused, a letter addressed to Mrs Milewich, a draft will, a draft enduring power of attorney and a draft enduring power of guardianship. The accompanying letter included details about how to obtain a medical assessment regarding testamentary capacity.[22]
[22] P4.
On 25 June 2013 Ms Andreyev telephoned the accused to follow up the assessment of testamentary capacity. The accused said that his mother was in rehabilitation, but would be discharged that day, and an assessment would be arranged at that time.[23] Ms Andreyev repeated her advice as to the need for an interpreter. Ms Andreyev emphasised that without a medical assessment and interpreter, the will would very likely be challenged. She described the tenor of her advice as being that it was “toilet paper” in terms of its value without those assurances.[24]
[23] T211-212.
[24] T229.
During the same conversation the accused told Ms Andreyev that the relationship between his Mother and Mrs Liemareff, his sister, was not good. That gave rise to a discussion about options which would enable Mrs Milewich to transfer title to the two pieces of real estate while she was still alive. Ms Andreyev told the accused that such a course would attract an obligation to pay stamp duty, and the option was not taken up.[25] This call was the last contact Ms Andreyev had with the accused.
[25] T212.
On 17 July, a matter of weeks after the accused was given this advice by Ms Andreyev, the draft will was signed and witnessed. The circumstances in which this occurred were in dispute at trial.
On the face of the document[26], it appears to be signed by N. Milewich, that signature being witnessed by Peter Cirocco and George Gonis. Mr Cirocco and Mr Gonis gave evidence on the prosecution case.
[26] P5.
Mr Cirocco had been a friend of the accused for twenty to thirty years. He also knew Mrs Milewich.[27] Mr Gonis knew the accused through Mr Cirocco but had never previously met Mrs Milewich.[28]   Neither Mr Cirocco nor Mr Gonis spoke Russian. Mr Cirocco gave evidence that during 2013 he received a telephone call from the accused asking him to witness Mrs Milewich’s will.[29] He took Mr Gonis with him to the Cheltenham house. When he arrived, the accused was present, as was Walter Milewich and Mrs Milewich.[30]
[27]   T326.
[28]   T333.
[29]   T327-328.
[30]   T328.
Mr Cirocco told the court that he sat down with Mrs Milewich and Mr Gonis. He was unable to recall specifically where the three of them sat. Mr Cirocco described the events that followed as “we all pretty well signed it then and there because, you know, the pen was passed around and so forth.”[31] He was asked directly whether the signature N. Milewich was already on the document at the time he witnessed it.   He said he could not recall either way.[32]
[31]   T329.
[32]   T330.
In cross examination Mr Cirocco firmed on the issue, saying that the signature on the page identified as ‘main 10’ had been applied by Mrs Milewich in front of him.[33] He said he recalled that she applied the signature slowly, but unassisted.[34] Mr Cirocco was unable to recall what surface the will had been placed on at the time the signature was applied.[35]
[33]   T331.
[34]   T331.
[35]   T332.
Mrs Milewich was not known to Mr Gonis prior to his attendance at the Cheltenham house. He told the court that he visited Mrs Milewich in company with his friend Mr Cirocco, and he did not know the reason for their visit.[36] Mr Gonis described Walter Milewich as ‘in and out’ during the period of the visit, and the accused as being present.[37]   He recalled that he, Mr Cirocco and Mrs Milewich sat at a table and had a drink and exchanged pleasantries. There were papers on the table. When asked whether he saw Mrs Milewich apply her signature or whether it was already on the document when he signed it, he said “I cannot recall but there was like signing, all of us signing in the presence of each other but in the order I cannot recall”.[38] Less than a month after the will was signed, on 10 August 2013, Mrs Milewich passed away.
[36]   T334.
[37]   T335.
[38]   T336 and 337.
Events after the death of Mrs Nadia Milewich
Sometime after the death of Mrs Milewich, Mrs Liemareff asked the accused about her will. Mrs Liemareff’s brother-in-law had passed away at about the same time as her mother and she became aware that his estate had been settled promptly. This knowledge motivated her to ask her brother if he knew anything about a will.[39]
[39] T236-237.
The accused told Mrs Liemareff that he did not think his mother had a will. He went on to claim that he would not know where to find such a document.[40] Against the background of his involvement in the drafting of the 2013 will, and the subsequent witnessing of signatures, this statement was a lie.
[40] T238.
Mrs Liemareff sought legal advice. She instructed a lawyer Mr David Bentley to make formal enquiries with her brothers about the existence of, and whereabouts of, a will.
Through Mr Bentley, she was provided with a copy of P5, the 2013 will. Mrs Liemareff told the court that she was familiar with the signature of her mother and the signature on the face of P5 was not that of her Mother.[41]
[41] T240-241.
Mrs Liemareff said that her mother had had a beautifully written signature prior to suffering injuries in a car accident.[42] She said that after the car accident her Mother’s signature became worse and worse. Mrs Liemareff was not able to be precise about when it was that her mother was involved in the car accident. She said it was after 1999 but could not be any more specific than that.[43] Mrs Liemareff identified a signature on the client profile questionnaire P3 and on the 1995 will P2 as her Mother’s.[44]
[42]   T242.
[43]   T247-248.
[44]   T242.
Mrs Liemareff did not give any evidence about the circumstances in which she had become familiar with her Mother’s signature, and over what period of time. She did not give any evidence as to what aspects of the signature on P5 that was different to the signature she recognised as her Mother’s.
The evidence of Mrs Liemareff was the only evidence led in support of the proposition that the signature on the will P5 was forged.
Mr Bentley, the lawyer instructed by Mrs Liemareff, was called to give evidence. He told the court that upon receiving instructions from Mrs Liemareff he wrote separately to both Walter Milewich and the accused asking for copies of any wills of Nadia Milewich. In response, Mr Bentley received a copy of P5, the 2013 will, with a handwritten note “Please find enclosed will as requested…Wally”.[45]
[45] P6.
That act, the provision of the will to Mrs Leimareff, via her lawyer Mr Bentley, is the act which is relied on by the prosecution as the act of dealing with a document which underpins count one. It is alleged that it must have been the accused and not Walter Milewich who produced the document to Mr Bentley, and it was done so in circumstances that satisfied the elements of the offence charged.
In early 2015 Mrs Liemareff, through her lawyers, lodged a caveat at the probate registry of the Supreme Court of South Australia. This effectively prevented the grant of probate on any will of Nadia Milewich.[46]
[46] T278-279.
Following the lodgement of the caveat, letters were exchanged between lawyers for Mrs Liemareff and lawyers for the accused. The letters reflect that the parties were attempting to negotiate a way forward in respect to the estate which each found acceptable.[47] An offer was made to Mrs Liemareff for 20 percent of the net residue of the estate, but this offer was rejected by letter of 10 June 2015.[48] By letter of 29 July 2015 Mrs Liemareff proposed a distribution of an equal share of the estate between the three children.[49]
[47] Section 67C of the Evidence Act prohibits the admission of communications attempting to negotiate a civil dispute. I was assured by the parties that the parties to the correspondence had consented to the tender.
[48] D16.
[49] D17.
On 20 August 2015 Mr Bentley received a letter from the law firm instructed by the accused, Welden and Coluccio. The letter enclosed a copy of the 1995 will and described it as having been located “by fortune only” as a result of the accused and Walter Milewich continuing their due diligence.[50] The will provided for a distribution of the estate in equal shares between the three children.
[50] P7.
In December 2015 a warning to the caveat was filed, and Mrs Liemareff did not enter an appearance to that warning.[51] This meant that the caveat lapsed and probate could be obtained. Pursuant to what had been agreed in negotiations, the accused sought probate on the 1995 will, which left the estate in equal shares to the three siblings. The accused did not seek probate on the disputed 2013 will.[52]
[51] T297.
[52] T293.
On 23 March 2016 probate was granted on the 1995 will.[53]
[53] P5.
On 26 April 2016 a letter was sent by Mr Bentley, on behalf of Mrs Liemareff putting the accused on notice of a potential claim on the estate pursuant to the Inheritance (Family Provision) Act. The letter sought an assurance that no distribution of the estate would be made until 6 months had passed from the date of probate.[54]
[54] D26.
Welden and Coluccio, lawyers for the accused, assured Mrs Liemareff by letter that the accused would not attend to any distribution during the 6 months period from the grant of probate.[55] The letter further advised that the Cheltenham and Queenstown properties were being marketed for sale, although neither had yet been sold.
[55] P8.
An application under the Inheritance (Family Provision) Act was filed on behalf of Mrs Liemareff on 9 September 2016, just inside the applicable 6 month time period from the date of the grant of probate.[56]
[56] T275.
At the time of trial that action remained on foot in the Supreme Court. No distribution has yet been made to Mrs Liemareff, nor is one required, as civil proceedings remain on foot.
On 10 November 2016 the accused opened a bank account at the Commonwealth Bank of Australia in the name of Estate of the Late Nadia Milewich.[57] The accused was the sole signatory on that account. On 28 November 2016 Welden and Caluccio solicitors made two transfers of money into the account: $500,000 and $482,756.84.[58] The following day, 29 November at 11.39 am, the accused made a withdrawal from that account in the amount of $760,100.00. That transfer is the act which underpins count two, aggravated theft.
[57] Agreed Fact 4, P30.
[58] Agreed Fact 6, P30.
That amount was transferred to an account in the name of KBN Aust Pty Ltd, and was for the purchase of gold bullion from City Gold Bullion.[59] The accused closed the estate account on the following day, on 30 November 2016. No evidence was led at trial as to the destination or use of the remaining $282,656.84 that had been paid into the account by Welden and Caluccio.
[59] Agreed Fact 7, P30.
Mr Nathan Gollan gave evidence about the purchase of the gold. At the relevant time he was the Manager of City Gold Bullion, a store located in King William Street, Adelaide.[60] He did not conduct the transaction personally, but was able to describe usual business practices for the sale of gold bullion and creation of associated documentation. A tax invoice was tendered which recorded a sale from City Gold Bullion to the accused on 29 November 2016.[61] The identity of the purchaser was confirmed with a photo drivers licence. The gold was purchased in the name of the accused and not the name of the estate.[62] A total of 46 gold bars were purchased: 14x5 ounce bars, 14x10 ounce bars, 16x500 gram bars and 2x1 ounce bars. The total payable was $760,100 and the total weight was approximately 14.5 kilograms.[63]
[60]   T321.
[61]   P29.
[62]   P29.
[63]   P29 and T323.
Gold bullion, at the time the purchase was made, was untraceable in the sense that the bars did not bear any distinguishing marks or serial numbers.[64] Unlike with cash, there is no statutory obligation to report large transactions involving gold bullion.[65]
[64] T324.
[65] T322.
Mr Gollan told the court that City Gold Bullion provided a storage facility for purchasers to securely store their gold. The accused did not take advantage of that service, but took the 14.5 kilograms of gold away with him from the shop.[66]
[66] T323 and 325.
Mr Gollan gave some evidence about the fluctuating value of gold. He said that the 14.5 kilograms of gold purchased in February 2016 would now be worth $1,177,849.[67] That represented a considerable growth in value. While this evidence supported the inference that the purchase of gold at that time turned out to be a good investment, there was no evidence before the court about the relative fluctuations in gold value, and the risk associated with such an investment.
[67] T325.
Mrs Spurling and Ms Nellie Liemareff each gave evidence of conversations they had with the accused during which he made statements referring to the money from the estate of Mrs Milewich. The prosecution alleged that these statements could be relied upon as admissions.
Mrs Spurling told the court that during a telephone call with the accused he indicated that he wanted to be able to speak to Mrs Liemareff without lawyers being present to resolve the issue with the will. The accused told Mrs Spurling that if a private discussion did not occur, then Mrs Liemareff would get nothing. During the conversation the accused said that he would not tell anyone where the money was.[68] The conversation included the accused referring to his concern that the estate would be diminished by the involvement of lawyers and a dispute over the distribution of the assets would cost more money.[69] Mrs Spurling was not able to be precise about when this conversation had occurred.
[68] T193.
[69] T195.
Ms Nellie Liemareff also had a conversation with the accused about the dispute over the will. The conversation occurred on 7 September 2017, well after proceedings had been lodged in the Supreme Court. Ms Nellie Liemareff was at home with her Mother when she became aware that the accused had come to the house. She answered the door when he knocked and then spoke with him outside for a period of time. The accused’s wife Katusha was also present. The accused asked to speak to Mrs Liemareff, and said he had come to the house to try and make a deal about the will. He referred to the lawyers and tax collectors taking everything.   The accused said “then I will do what I have to do. I’m not a greedy bastard or a motherfucker, but when you push me into a corner I will be. I have friends, Nellie, really good friends, who are going to help me”.[70] The conversation ended with the accused asking to sit down with Mrs Liemareff to discuss the matter without lawyers. He referred to not wanting police involvement, but said that he doubted that he would hear from them [the police].[71]
[70]   T308.
[71]   T313.
On 4 July 2018 police attended the Moonta property of the accused. He was arrested at that time. The house was searched for evidence of the gold that had been purchased in 2016 but no evidence of it was found.[72]
[72] T340.
Prosecution Submissions
The prosecution submitted that the gross differences in the signature which was known to be that of Mrs Milewich, and that on P5 demonstrated that it was a forgery. They argued that when compared with the known signature, the questioned signature was more controlled, more even, and written more neatly. They argued that in circumstances where Mrs Milewich’s health had declined between the two signatures, such an improvement defies belief. The prosecution said there were ambiguities and uncertainties in the evidence of Mr Gonis and Mr Cirocco such that the signature could have been on the document prior to the occasion when they attended to witness it.
In respect to count two, the prosecution argued that the circumstances surrounding the transaction, when viewed in combination, admitted of no other reasonable possibility except that the accused’s actions with respect to the purchase of gold amounted to aggravated theft.
The Defence Case
No witnesses were called on the defence case. The defence case was, in summary, that the evidence of Mr Cirocco and Mr Gonis supported the conclusion that Nadia Milewich applied her signature to P5 herself at a time they were all in the presence of one another. Counsel for the accused submitted that I could not be satisfied, on the basis of the evidence of Mrs Liemareff, that the signature was a forgery. This was particularly so as she had an interest in the outcome of the matter as a beneficiary of the will. It was submitted that the evidence of Mr Cirocco and Mr Gonis made it impossible for the prosecution to succeed on count one.
In respect to count two it was submitted that the accumulated circumstances could not exclude, as a reasonable possibility, that the gold was purchased by the accused as an investment on behalf of the estate. It was argued that such a transaction was permitted under the terms of the will and the Trustee Act. As civil proceedings in respect to distribution were still on foot, the beneficiaries had not yet become entitled to a distribution, and no inference could be drawn from the fact that none had been made.
Legal Directions
Lies
The prosecution submitted that the evidence that the accused had told Mrs Liemareff that he knew nothing about his mother’s will amounted to a lie. They submitted that statements by the accused that he knew nothing of his Mother’s death certificate were also untrue. The prosecution disavowed any reliance on that evidence as consciousness of guilt, but said its relevance was limited to the credit of the accused. As the accused did not give evidence and did not offer any version to the police, issues of his credit did not arise on this trial. In those circumstances I have not have any regard to the alleged lies identified by the prosecution.
Admissions
The prosecution submitted that the accused’s statements to Ms Nellie Liemareff and Mrs Spurling amount to admissions that he had control of $760,100 worth of the estate, at the time that those statements were made. The words said to have been uttered could be construed as admissions to that fact. The admission is to having participated in a transaction which moved the funds out of the estate account and into his control, in a location and in a form that he is not prepared to disclose to the other beneficiaries under the will. On one interpretation, his words could be construed as an admission to possession of the funds, coupled with an attempt to use his knowledge about their whereabouts to lever a strategic advantage in the civil proceedings. The alternative interpretation is that it was not an admission, but a dishonest statement to cover a theft at the same time as levering a strategic advantage in the civil proceedings.
There is no evidence before the court as to the current whereabouts of the gold purchased with estate monies, beyond that it was not located at the accused’s home address at the time it was searched. I find that the words spoken were equivocal and I cannot safely draw any inference for or against the accused. In the circumstances I have disregarded that evidence.
Handwriting Comparison

Section 30 of the Evidence Act 1929 provides for the comparison by a witness of disputed handwriting with a sample proved to the satisfaction of the Judge. Further, a trier of fact is entitled to draw their own conclusions about authorship by conducting a comparison of known and questioned writings.[73] Any direction about such a lay comparison should include a warning about the dangers of handwriting comparisons.
[73] Adami v The Queen [1959] HCA 70; R v Baftiroski [2018] SASCFC 83.
In this case, no expert evidence was called as to the comparison between the known signature of Mrs Milewich (P3) and the questioned signature on the 2013 will (P10). However, as noted earlier, evidence was given by Mrs Liemareff that the questioned signature was not that of her Mother.[74]
[74] R v Mazzone (1985) 43 SASR 330.
I am satisfied beyond a reasonable doubt that the signature on page 34 of P3 was that of Mrs Milewich. Ms Andreyev, a legal practitioner witnessed the signature and gave evidence of having seen it applied.[75]
[75] P3 at 34 and 35 and T207.
In those circumstances I am entitled to conduct my own comparison of that signature against the questioned signature on P10. In making such comparison I am mindful of the pitfalls of handwriting comparison, especially, as in this case, not much is known about the conditions in which the handwriting was applied, and the state of health of the author at the relevant time.
The prosecution submitted that I could infer that Mrs Milewich’s health and mental state continued to decline over time. Absent any expert evidence about the cause of her death, the nature of her illness or the nature of her cognitive challenges, I am not satisfied that such a conclusion is properly open to me. Persons experiencing cognitive or physical decline can have good and bad days. The ease with which they manipulate a pen will be affected by the pen itself, the writing surface, and their presentation on that particular day. It is a common experience that a person’s signature will not be identical on each application.
Failure to put defence case
The prosecution argued that defence counsel failed to put a fundamental aspect of his case to the witness Mrs Liemareff, that is, that the signature on P5 was in fact applied by Mrs Milewich. That proposition was not put to Mrs Liemareff by way of cross examination. I consider that was a fundamental challenge to her evidence and she should have been given the chance to answer it. Fairness dictates that she should have been confronted with the criticisms that have ultimately been made of her evidence, including that she had a financial interest in the outcome of the proceedings.
The nature of the breach however is not such that it is appropriate to allow it to bear on my consideration of the respective submissions. The tenor of Mrs Liemareff’s evidence makes it obvious what her response would have been to being confronted with a suggestion that the signature was in fact her Mother’s. I do not take this aspect of things into account in assessing the evidence or the respective submissions of counsel.
Consideration – count one
To find the accused guilty of count one I must be satisfied beyond a reasonable doubt that the signature on the face of the 2013 will was not the signature of Nadia Milewich and the accused knew it not to be.
In support of this conclusion, the prosecution relied on a number of circumstances said to prove that the terms of the 2013 will did not reflect Mrs Nadia Milewich’s testamentary wishes. The prosecution argued that the accused’s assets (that he had been in receipt of social security for 27 years) could never have funded the purchase of the house he lived in or serviced a mortgage. If the house was sold and the estate distributed equally, this would mean a significant change to the accused’s lifestyle. His rent-free enjoyment of the Queenstown house that he had occupied for many years would come to an end.
The prosecution further argued that the fact that the accused failed to arrange a Russian interpreter or obtain evidence of his Mother’s testamentary capacity supported the conclusion that he knew that the document did not reflect her wishes.
The evidence supports the conclusion that Mrs Milewich was not capable of understanding the complex legal terms contained within P5 without it being translated into Russian. It also seems doubtful that her cognitive condition would have made it possible for her to understand its terms in any detail, if at all.
However, the prosecution particularised its case as to the falsity of the document on the basis that the signature was not that of Mrs Milewich. The falsity identified is not linked to a lack of comprehension of the terms of the document. I am asked to infer that Mrs Milewich would not have put her signature to something she did not understand or did not reflect her testamentary wishes. In circumstances where Mrs Milewich was elderly, in cognitive decline, and heavily reliant on her family, I do think it would be safe to infer that she simply would not have applied her signature unless she was certain for herself that she understood the terms of the document. It is entirely possible that she relied on an explanation from her son as to the meaning and effect of the document.
Following the death of Mrs Milewich, the accused did not seek probate on the 2013 will. I do not draw any conclusion from this course of events. The accused’s eventual decision to seek probate on the 1995 will (P2) was made after a lengthy negotiations with Mrs Liemareff as her entitlement and the legitimacy of the 2013 will. I cannot exclude the possibility that the accused decided not to seek probate because of the issues that were raised about the fact that it had not been translated and there was no medical certification of competence at the relevant time, rather than an awareness that the signature on its face was forged.
In considering the question of the signature, I have had very limited regard to my own comparison of the known and questioned signatures (P3 and P5). They are very different in size, orientation and fluency. However, the sample of known writing is small and little is known about the circumstances in which the signature was written. The variation between P3 and P5 may be explained by some change in the physical or cognitive state of Nadia Milewich, or a change to the writing implement or writing surface. I consider that it would be dangerous to place much weight on my own comparison in these circumstances.
I am left therefore to rely on the evidence of Mrs Liemareff that the signature on P5 was not that of her Mother. I must be satisfied that she is both honest and reliable when she says the signature is not that of Nadia Milewich.
Mr Cirocco and Mr Gonis each gave evidence that they were present at a meeting when the will P5 was signed. Mr Cirocco gave evidence that he witnessed the signature being written by Mrs Milewich. I must exclude as a reasonable possibility that his evidence is accurate and reliable.
Mrs Liemareff did not give detailed evidence as to the basis for her opinion, or her level of familiarity with signatures of her mother applied at around the same time as the 2013 will. Neither did she identify what differences between the signatures led her to her view. While she may be honest in her view about the questioned signature, I cannot be satisfied that she is reliable, especially in light of the evidence to the contrary given by Mr Cirocco.
In the circumstances I cannot be satisfied to the requisite standard that Mrs Milewich did not write the signature on the 2013 will P5. While there might be real issues about her cognitive capacity and English language skill to understand the document, the prosecution advanced its case on the basis that the signature was forged, and not otherwise.
Furthermore, count one requires the prosecution to prove that it was the accused who provided P5 to Mrs Liemareff’s lawyer Mr Bentley. The evidence was that Mrs Liemareff’s lawyer sought a copy of the will by sending letters to both the accused and his brother Walter Milewich. The copy provided to the lawyer was sent with a handwritten note purporting to be from “Wally”.[76] Walter Milewich was at the house when the will was witnessed by Mr Cirocco and Mr Gonis. There is no basis on which I could exclude the possibility that it was Walter Milewich and not the accused who responded to the letter seeking a copy of the will and produced P3 to Mr Bentley, the lawyer acting for Mrs Liemareff.
[76] P6.
I am not satisfied that the elements of count one are satisfied, and I find the accused not guilty.
Consideration Count Two
To find the accused guilty of count two it is necessary that I am satisfied that the transaction to withdrawn $760,100 for the purchase of gold was conducted with a specific intent and in specific circumstances.
I am satisfied beyond a reasonable doubt on the basis of the evidence given by Mr Gollan and the agreed facts as to the relevant bank transactions that the accused did deal with property as defined in section 130 of the Criminal Law Consolidation Act. He did this by transferring it from the bank account in the name of the Estate of Nadia Milewich to the account of a gold dealer in exchange for gold bullion.
The dealing must be proved to have been dishonest, as defined in section 131 of the CLCA. Dishonesty is to be determined according to the standards of ordinary people, according to the fact-finders own knowledge and experience.[77] The conduct of a person is not dishonest if they honestly but mistakenly believe that they have a legal or equitable right to act in the way alleged.[78] If it is reasonably possible that the accused intended to invest the estate funds in gold bullion to ensure that the value of the estate was not diminished while the family inheritance proceedings were determined, and he honestly believed himself entitled to deal in that way, then the dealing would not be dishonest.
[77] Criminal Law Consolidation Act s131(2).
[78] Ibid s131(5).
The third element which must be proved is that the dealing occurred without the consent of the owner. The charge particularised the owners as Walter Milewich and Svetlana Liemareff, the two other beneficiaries named in the will. No evidence was called from Walter Milewich as to his knowledge of, or consent to, the transaction. Mrs Leimareff gave evidence that she had no knowledge of, and did not consent to, the transaction.[79]
[79] T245.
Counsel for the accused argued that no consent to the transaction was required if the accused, as executor, was acting within the law to invest the estate while distribution was disputed. Section 6 of the Trustee Act 1936(SA) provides as follows:
A trustee may, unless expressly forbidden by the instrument creating the trust-
1.Invest trust funds in any form of investment; and
2.at any time, vary an investment or realise an investment of trust funds and reinvest money resulting from the realisation of any investment.
The relevant portions of the will (the instrument creating the trust) provides that:
I give devise and bequeath the whole of my estate both real and personal of whatsoever kind and wheresoever situate unto my trustees upon trust to pay therefrom my just debts funeral and testamentary expenses and all death estate and succession duties State or Federal upon the whole of my dutiable estate to hold the residue then remaining upon trust for such of them of my children Walter Milewich of 38 Fourth Avenue Cheltenham, in the said state, subcontractor, Nicholai Milewich 35 Victoria Street, Queenstown, in the said state, student and Svetlana Liemareff of 269 Oaklands Road Marion, in the said state, Home Duties as shall survive me and if more than one in equal shares as tenants in common…..
I empower my trustees in their absolute discretion either to sell call in and convert into money any part of my estate, or to retain the same in the state or form of investment existing at my decease notwithstanding that any such property may be of a wasting or hazardous or reversionary nature during such period as my Trustee shall think proper and without being responsible for loss and to stand possessed of the proceedings of such realisation upon the trusts herein declared concerning the portion of my estate so realised.[80]
[80] P2, paragraphs [4] and [5].
The 1995 will (P2) specifically empowers the trustee to convert the estate to money, or to leave it in the state it was in at the time of the death of the testator. It empowers the trustee to, in their absolute discretion, convert non-monetary assets to money and retain the proceeds on trust. It does not deal with the question of any subsequent investment of the funds that are held upon trust. That power is provided by section 6 of the Trustee Act, which empowers a trustee to invest trust funds unless such a course is expressly prohibited by the instrument creating the trust.
I consider that section 6 of the Trustee Act did empower the accused to invest the assets of the estate, subject to the requirements of sections 7, 8 and 9 of the Trustee Act, which impose certain standards and obligations on a trustee purporting to invest funds held on behalf of others. The will does not contain any express prohibition on him doing so. His duty to act in accordance with his fiduciary duty to the beneficiaries remained.
If it is a reasonable possibility that the accused honestly purchased the gold bullion using estate money intending thereby to invest and grow the funds, then he did not require the consent of the beneficiaries. The action was permitted by the terms of the will, and section 6 of the Trustee Act.
The fourth and final element is that the accused dealt with the property intending to permanently deprive the owner, or to make a serious encroachment on their proprietary rights. Owner is defined as a person having a proprietary interest in the property.[81] Mrs Leimareff and Mr Walter Milewich as beneficiaries under the will enjoyed proprietary interests in the funds of the estate.
[81] Criminal Law Consolidation Act 1935 (SA) s 130.
The evidence as to this fourth element is circumstantial. To find this element proved I must be satisfied on the basis of the accumulated circumstances that there is no other hypothesis reasonably open that is consistent with innocence.
The purchase of the gold had the effect of converting a traceable asset (money in the bank) to an untraceable one (gold bullion with no identifying features). This was to the advantage of the accused in that it obscured the destination and or location of a significant portion of the estate assets from those who had an interest in those assets.
Counsel for the accused submitted that the evidence established that the value of the gold purchased had increased, and demonstrated that the purchase of gold had been a prudent investment. He said this supported the inference that the transaction had been by way of investment and not theft. As earlier observed, no evidence was called as to the relative risks and rewards involved in investing in gold against which to measure the prudency of the investment.
That the purchase of gold was, in hindsight, a prudent investment obscures the important question of – for whom was it a prudent investment? The transfer of money for the purchase of gold had the potential to increase the value of the money, but also operated to convert it into an untraceable form, which made it easier to conceal from others with a beneficial entitlement.
Untraceable gold bullion to the value of $760,100 is a significant asset. It represented over three quarters of the entire estate. If the intent was to retain it as an investment to the advantage of the beneficiaries, one would expect that arrangements for its secure storage would have been made. City Gold Bullion offered a secure storage facility for gold bullion purchased at its store.[82] Rather than utilise this service the accused took the 14.5 kilograms of gold bullion out of the shop in his personal possession.
[82] T323.
Although a search was specifically made for it, no gold was located at the accused’s residential premises.
City Gold Bullion was not however the only way in which safe storage of the gold could be facilitated. I cannot discount the possibility that the accused secured other safe storage, such as a bank deposit box or other similar confidential service.
I have also considered the timing of the gold purchase and the accused’s dealings with the bank account into which the proceeds of the sale of the house was paid. The money was paid into the estate account in two tranches, totalling $982,756.84 on 28 November 2016. The day following its deposit, the charged transaction resulted in $760,100 moving out of the estate account. Only $222,656.84 of the estate funds remained. No evidence was called as to how that money was dealt with or distributed, so I must consider the disposition of the largest portion outside any context or evidence as to the disposition of the remainder. The day after the purchase of the gold the estate account was closed, suggesting no intent to return assets to that account or utilise it to facilitate distribution.
I have also considered any motive that the accused held and demonstrated to steal a large portion of the estate. On the 1995 will on which probate was granted, the accused was entitled to a share of the estate assets which was less than the value of the house he had, prior to the death of Mrs Milewich, enjoyed occupation of rent-free. His lifestyle would be affected in a deleterious way by the distribution contemplated by the 1995 will. The institution of the family inheritance proceedings by Mrs Liemareff had the potential to result in an even greater reduction in his entitlement.
There was a significant financial advantage to be achieved in removing the estate funds from the estate at the time he did, before any distribution was required.
No distribution of estate funds has yet been made to Mrs Liemareff.[83] It is not known whether any distribution has been made to Walter Milewich. As identified earlier, civil proceedings remain on foot in the Supreme Court. Even if the estate assets were still accessible and available to the accused, the occasion for their distribution has not yet arisen. I am not therefore able to draw any inference from the fact that no distribution of funds has yet been made.
[83] T245.
The fact that the bank account has been closed satisfies me that the funds have not been returned to the estate through replacement to that account. I have carefully considered whether on that basis I can be satisfied that the estate assets have not been returned to the estate at all since the purchase of the gold. There is no evidence before me on which I could safely draw that conclusion, and there was no obligation on the accused to disclose details in that regard in a criminal trial.
If the transaction was by way of investment, the accused was subject to a number of reporting and accounting obligations under the Trustee Act. No evidence has been led as to whether the accused has complied with these obligations.
If the accused’s purchase of the gold bullion was an investment of the assets of the estate with a view to preserving them pending resolution of civil proceedings it was very poor investment decision. His conduct is likely to be in breach of various obligations imposed on him as executor and trustee of the estate.
The circumstances in which the transaction was made makes me deeply suspicious of the accused’s intent. A state of suspicion however is not the same as satisfaction beyond a reasonable doubt.
I am unable to exclude beyond a reasonable doubt that the accused purchased the gold bullion as an investment pending the resolution of civil proceedings. That possibility would mean that the following elements are not satisfied:
·That the dealing was dishonest (as defined in section 131); and or
·That the accused intended to permanently deprive the owner of the property, or make a serious encroachment on the owner’s proprietary rights.

I therefore find the accused not guilty of count two.