R v Milewich - [2022] SADC 34

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MILEWICH
[2022] SADC 34
Reasons for Ruling of her Honour Judge Telfer
18 March 2022
CRIMINAL LAW - PARTICULARS - DUPLICITY
The applicant was charged with one count of dishonest dealing with documents and one count of theft. The applicant was the executor of his mother's will and was alleged to have committed theft of monies entrusted to him in that capacity. The prosecution relied on three separate withdrawals of money from an account established to hold the money on behalf of the estate in support on a single count of theft. The applicant sought a finding that the charge was duplicitous and an order that the prosecution elect and identify a single act on which it relied.
Finding that, adopting a practical and common sense approach, count two was duplicitous. Order made that the prosecution elect as to the transaction relied upon for count two.
Criminal Law Consolidation Act 1935 (SA) s 140(4), 134(1); District Court Criminal Rules 2014 (SA), referred to.
R v Kerin [2013] SASCFC 56; R v Traino (1987) 45 SASR 473; Walsh & Tattersall (1996) 188 CLR 77; R v Dawson-Ryan (2009) 104 SASR 571; S v The Queen (1989) 168 CLR 266; R v Hamzy (1994) 74 A Crim R 341, applied.

R v MILEWICH
[2022] SADC 34

The applicant Mr Milewich is charged on Information with one count of dishonest dealing with documents (section 140(4) Criminal Law Consolidation Act) and one count of aggravated theft (section 134(1) Criminal Law Consolidation Act).
His counsel filed an application pursuant to Rule 49 of the District Court Criminal Rules seeking an order that the prosecution provide further and better particulars in respect to each count.
Subsequent to the voir dire beginning, the applicant filed a further application seeking a finding that count two was duplicitous, and requiring the prosecution to elect and identify the specific act relied upon in support of that count.
The applicant has made an election for trial by judge alone, and as a consequence I have not read the filed statements. I have read and considered the prosecution case statement, and have had regard to submissions made in court as to the factual background. The following background is extracted from those sources.
Factual Background
The applicant is the son of Nadia Milewich, who passed away in 2013. Prior to her death Mrs Milewich owned two pieces of real estate, one at Cheltenham and one at Queenstown. For many years Mrs Milewich lived at the Cheltenham property with her son Wally Milewich. The applicant lived in the property at Queenstown. Mrs Nadia Milewich had a daughter Svetlana Liemareff who, by the time of Mrs Milewich’s death, was married and had children of her own. Mrs Liemareff did not reside in a property owned by Mrs Milewich.
In 1995 Mrs Milewich executed a will which left her estate in equal shares to her three children.
In 2012 it is alleged that the applicant facilitated the drafting of a new will by Mrs Milewich. The solicitors responsible for its drafting would not proceed to execute the will without Mrs Milewich providing medical evidence of her capacity, and without having an independent russian language interpreter present.
In 2013, in events that are the subject of dispute at this trial, a signature came to be affixed to that will. That will changed the distribution of the estate to leave the Cheltenham property to Wally Milewich, the Queenstown property to the applicant and cash in the amount of $60,000 to Svetlana Liemaroff. This will involved a substantial reduction in the value of the gift to Svetlana Liemaroff in favour of her two brothers.
Count one involves an allegation that the signature on the 2013 will was forged, and its production via solicitors to Svetlana Liemaroff amounted to dishonest dealing in documents.
Ultimately, probate on the 2013 will was not pursued by the applicant. Rather, he sought probate on the 1995 will. Probate was granted on 23 March 2016. The two properties were subsequently sold and the proceeds were paid into a bank account established in the name of the Estate of Nadia Milewich on 28 November 2016. The applicant was the sole signatory to that account. The proceeds were paid in two tranches - $500,000 at 2.15 pm, and $482,000 at 8.30 pm.
It is alleged that the following day, the 29^th of November 2016, the applicant attended the King William Street branch of the Commonwealth Bank in person and withdrew $120,000 from that account. $50,000 was paid to him in cash in $100 notes, and $70,000 was transferred to an account held in the name of his wife Kateryna Milewich. That transaction occurred at 10.42 am.
A second transaction at the Commonwealth Bank occurred at 11.39 am. The applicant attended the same Commonwealth Bank branch and authorised a transfer of $760,100 to City Gold Bullion. This was payment for the purchase of 14.6 kilograms of gold bullion from City Gold Bullion, a gold store with a shop in King William Street. The 14.6 kilograms of gold bullion was provided to the applicant on the same date and the applicant took it with him.
The following day, the 30^th of November 2016 the applicant attended the Commonwealth Bank and made a third transaction. He withdrew $102,000 in $100 and $50 notes. That effectively cleared the account and the account was closed.
Neither the cash nor the gold bullion was ever recovered.
The prosecution rely on the three transactions across the 29^th and 30^th of November as underpinning count 2, theft.
The applicant contends that to rely on all three transactions renders the charge duplicitous.
Elements of Theft
In order to analyse whether the count is duplicitous it is necessary to begin with the elements of the offence charged, and what it is that the prosecution is obliged to prove to prove.
In the context of this case, the elements can be described as follows:
1.That the applicant dealt with property (as defined in section 130);
2.That the applicant acted dishonestly (as defined in section 131);
3.That the dealing was without consent;
4.That the dealing was accompanied by an intent to deprive the owner permanently of the property or make a serious encroachment on the owners proprietary rights.
The applicant was empowered as the executor of the estate to deal with the property of the estate (the cash proceeds of the sale of the properties) in particular ways. His appointment empowered him without the specific consent of the beneficiaries to manage the estate within particular limits. What those limits are will be the subject of consideration in the trial proper. Dealing with property outside of the permitted limits would be without consent.[1]
[1] R v Kerin [2013] SASCFC 56
The prosecution must prove that the applicant acted dishonestly. This is a different question to whether he acted outside the power inherent in his appointment as executor. Sections 131 (5) and (6) provide for a defence in the nature of a claim of right if an accused honestly but mistakenly believes they have a legal or equitable right to act in a particular way. In circumstances where the applicant was a named beneficiary of the estate, as well as the executor, such issues might arise.
Principles of duplicity
Where an offence is alleged to be constituted by a number or series of acts questions of duplicity arise. These questions must be approached in a common sense and not a technical way.[2] The touchstone must always be fairness in the circumstances of the case. There will be occasions where an accumulation of acts can fairly be said to constitute a single offence, or conduct is so connected in time and or circumstance so as to be fairly described as a continuing event. On the other hand there will be occasions where acts are not sufficiently connected in time, place or character to be charged within a single count without causing uncertainty and unfairness.[3]
[2] R v Traino (1987) 45 SASR 473
[3] Walsh v Tattersall (1996) 188 CLR 77
In R v Dawson-Ryan the Court of Appeal observed that a court will intervene to correct a duplicitous charge only where prejudice is shown.[4] I do not take this statement as requiring the applicant to discharge an evidentiary burden or to expose the nature of his defence to justify the courts intervention. Rather, it is an acknowledgement that a charge may be based on more than one act, but unless there is some practical unfairness in that, in the circumstances of the case, the court (taking a common-sense approach) need not intervene.
[4] (2009) 104 SASR 571 at [1112]-[113].
The oft cited rationale for the rule against duplicity originates in the judgement of Gaudron and McHugh JJ in S v The Queen (1989) 168 CLR 266 at 284:
One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea to autrefois acquit or autrefois convict…..
The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused person should know what case he or she has to meet.
Submissions
Mr Longson, who appeared at trial for the prosecution, submitted that the three transactions were so connected in time, place and circumstance so as to constitute a single enterprise. He pointed to the fact that the first two transactions - $120,000 ($70,000 to the bank account of Kateryna Milewich and the remainder in cash) and $760,100 were made within 57 minutes of one another, at the same branch of the Commonwealth Bank. He submitted that there was an inference to be drawn that in the time between the two transactions the applicant attended City Gold Bullion, located in the same city street as the bank, to identify the cost and payment details for the gold he intended to buy. He submitted that inference was supported by the timing of the second transaction which was a substantial transaction to City Gold Bullion.
The third transaction was then completed the following day, effectively clearing all the funds of the estate out of the bank account into which they had been paid.
On the prosecution case, each transaction was part of an overall plan to dishonestly deal with the entire estate. The prosecution say that the three separate transactions were made for practical reasons, and their separation in time does not undermine their proper characterisation as a single criminal enterprise.
Mr Kane, for the applicant, highlighted that there was not a blanket prohibition on the applicant dealing with the funds of the estate. As the executor he had certain obligations and was entitled to deal with the funds in a way which was consistent with the grant of power to him as executor.
He referred to the fact that the applicant was also a beneficiary under the will, and that issues of claim of right might arise.
Different considerations arise, he argued, out of the different circumstances that attended each transaction.
Discussion
On the evidence that the prosecution anticipates, the three transactions are closely connected in time and place. There is unlikely to be any dispute that it was the applicant who made those transactions. As I understand the matter, the crux of the dispute is likely to concern the limit of the applicant’s powers as executor, and whether he held a dishonest intent.
The precise circumstances in which a particular transaction was made, the amount concerned, to whom it was paid and for what, are important circumstances relevant to the issues in dispute. I do not consider that the circumstances of each transaction are so aligned that they are necessarily properly characterised as stages of a single ongoing enterprise. That conclusion in one sense pre-supposes a particular conclusion about the nature and purpose of each transaction.
I consider that there is unfairness in permitting the prosecution to proceed on a single count which encompasses all three transactions. That unfairness is that the applicant will be obliged to answer a compendious charge where his defence to different transactions may well be different.[5] The circumstances which will be relied upon to support inferences about a lack of consent, and dishonest intent are not consistent throughout the transactions. His position as executor and beneficiary (and the relevant of those facts to proof of the requisite elements) further highlights the need for precision in the identification of the specific underlying transaction.
[5] R v Hamzy (1994) 74 A Crim R 341 at 346.
Any verdict returned on the compendious charge will be uncertain. I note that in a trial by judge alone the provision of reasons at a practical level addresses this concern, but it does not address the concerns about fairness to the applicant in the running of his defence.
Adopting a common-sense approach which focusses on fairness to both the accused and the prosecution, I conclude that the charge as currently particularised is duplicitous. The reliance on more than one underlying transaction causes an unfairness to the accused.
I order that the prosecution elect as to the transaction they rely on in respect to count 2 on the information dated 15 March 2022.