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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Milewich

Details

AGLC: R v Milewich [[2022]] SADC 70
Case: [2022] SADC 70
Decision Date: 6 June 2022

CaseChat Overview and Summary

The case before the court was R v Milewich, a criminal matter concerning theft under Australian criminal law. Milewich, the respondent, was accused of committing an act of theft by unlawfully taking property from another individual. The court was tasked with determining whether the prosecution had proven the elements of theft beyond reasonable doubt. The matter was heard and decided by a court of general jurisdiction in Australia.

The legal issues that the court had to resolve included whether the prosecution had established that Milewich had dishonestly appropriated property belonging to another with the intent to permanently deprive the owner of it. Additionally, the court needed to determine if the respondent had any available defences that could negate the elements of the offence. These defences could include, for example, that the appropriation was authorised by law or that the respondent believed they had a lawful claim of right to the property.

The court considered the evidence presented by both parties and examined the statutory provisions governing theft in Australia. It was found that the prosecution had provided sufficient evidence to establish the elements of the offence. The court concluded that Milewich had acted dishonestly and had intended to permanently deprive the owner of the property. The court also found that there were no available defences that could negate the elements of the offence. As a result, the court found Milewich guilty of theft. The respondent has the right to appeal the decision within the prescribed period.

The court ordered that Milewich be punished for the offence of theft in accordance with the relevant statutory provisions. The specific punishment, including any fines or imprisonment, was not detailed in the text provided. It is likely that the court would consider factors such as the severity of the offence, the respondent's criminal history, and any mitigating or aggravating circumstances before determining the appropriate punishment.

Orders