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…

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 34
Case: [2022] SADC 34
Decision Date: 18 March 2022

CaseChat Overview and Summary

The case of R v Milewich involved the defendant, Milewich, who was on trial in an Australian court. The nature of the dispute was centred around allegations of duplicitous charges, which occur when a single count in an indictment combines multiple separate offences. The court in this instance was required to determine whether the charges against Milewich were properly framed and whether the indictment contained multiple distinct offences in a single count.

The primary legal issue before the court was whether count two of the indictment was duplicitous, meaning it combined more than one offence in a single count. The court had to decide if this was an error that would render the charge invalid, as duplicitous charges can lead to a miscarriage of justice. The court was also required to decide if the error was such that it could be remedied by requiring the prosecution to elect on which transaction it would rely for count two, or if the defect was fatal and necessitated a dismissal of the charge.

In delivering its judgment, the court adopted a practical and common sense approach to the issue of duplicitous charges. The court found that count two was indeed duplicitous, as it combined two separate transactions into a single count. The court determined that this was an error that could be remedied by the prosecution electing which transaction it would rely upon for the charge. The court made an order that the prosecution must elect as to the transaction it would proceed with for count two, thereby rectifying the defect in the indictment.

The final orders of the court were that the prosecution must elect as to the transaction relied upon for count two. This order ensured that the charge was no longer duplicitous and allowed the trial to proceed fairly. The court's decision underscores the importance of properly framing charges to avoid errors that could lead to a miscarriage of justice.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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