New South Wales Court of Criminal Appeal CITATION : R. v. Bujaroski [2001] NSWCCA 403 FILE NUMBER(S) : CCA 60059/01 HEARING DATE(S) : 6 September 2001 JUDGMENT DATE : 9 October 2001 PARTIES : Regina - respondent Lube Bujaroski - appellant JUDGMENT OF : Hodgson JA at 1; Dowd J at 45; Smart AJ at 46 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0105 LOWER COURT JUDICIAL Twigg DCJ OFFICER : COUNSEL : G. Brady for appellant R.D. Cogswell SC for respondent/Crown SOLICITORS : J. Pappas for appellant S.E. O'Connor for respondent/Crown CATCHWORDS : CRIMINAL LAW - Appeal against conviction and sentence - Whether verdict unreasonable - Whether open to jury to find that appellant knew and understood contents of document which he signed - Whether circumstantial evidence direction required - Whether consideration of parity required reduction in sentence. D. Bruce v. Williams (1989) 46 A Crim R 122. Knight v. The Queen (1992) 175 CLR 495 R. v. hauser (1982) 6 A Crim R 68 at 71 CASES CITED: Rogerson (1992) 65 A Crim R 530 at 545 Postiglione v. The Queen (1996-7) 189 CLR 295 at 301 R. v. De Simoni (1981) 147 CLR 383 Shepherd v. The Queen (1989-1990) 170 CLR 573 at 578 DECISION : See par.44 of judgment IN THE COURT OF CRIMINAL APPEAL 60059/01 HODGSON JA DOWD J SMART AJ Tuesday 9th October 2001 R v. Lube BUJAROSKI Judgment 1 HODGSON JA: On 7th December 2000, after a joint trial before Twigg DCJ and a jury lasting nine days, Marilyn Scheidel was found guilty of fraudulently misappropriating the sum of $65,000.00 in violation of the terms on which it was received by her; and the appellant was found guilty of aiding, abetting, counselling and procuring this felony. 2 On 21st January 2001, the trial judge sentenced Ms. Scheidel to imprisonment for two years, with eighteen months non-parole period, and the appellant to three years' imprisonment with two years three months non-parole period, both to be served by way of periodic detention. 3 We are dealing with an appeal by the appellant against his conviction, and an application by him for leave to appeal against the sentence. 4 Before considering the grounds of appeal and submissions, it is convenient to outline certain undisputed facts relevant to the questions that we have to decide. 5 Prior to 31st May 1996, the appellant had negotiated with one Paul Aslemoski for a loan of $65,000.00. The appellant's co-accused Ms. Scheidel was a solicitor who participated in the transaction on behalf of the appellant. Another solicitor Malcolm Hansen acted on behalf of Mr. Aslemoski. 6 At about 11am on 31st May 1996, the appellant saw Ms. Scheidel at her office in relation to the transaction, and subsequently on the same day, Ms. Scheidel drew a document for the purposes of satisfying the requirements of the lender in relation to the transaction. This document was in the following terms: DEED OF GUARANTEE This deed of guarantee is made on the 31 day of May 1996 BETWEEN LUBE BUJAROSKI AND PAUL ASLEMOSKI. Lube Bujaroski hereby agrees to guarantee to pay Paul Aslemoski that the sum of $65,000.00 being funds provided by Paul Aslemoski to Lube Bujaroski for the purposes of investment. Such funds will remain in Lube Bujaroskis Solicitors Trust Account. Lube Bujaroski also agrees to pay Paul Aslemoski the sum of $10,000.00 as payment to Paul Aslemoski for providing the funds to Lube Bujaroski. It is further agreed that the $10,000.00 will also be placed in the Solicitors Trust Account. The above funds being $75,000.00 will not be released from the Trust Account unless Lube Bujaroski has an acceptable Bank Letter of Credit. The total funds will be released to Paul Aslemoski at the end of the four (4) week period. It is further agreed that this agreement is limited to the sum of $75,000.00 and is for a period of four (4) weeks from the date of this Agreement. Signed by Lube Bujaroski: Witness: 7 A copy of this document was faxed to Mr. Hansen at 3.02pm on that day, under the cover of a letter from Ms. Scheidel in the following terms: AGREEMENT BETWEEN PAUL ASLEMOSKI AND LUBE BUJAROSKI Please find attached a deed of agreement between my client Lube Bujaroski and your client Paul Aslemoski for the loan and investment of $65,000.00. As can be seen from the agreement, your client will receive the fee of $10,000.00 for the loan of the above funds. The funds (being both $65,000.00 and $10,000.00) will be lodged in our Solicitor's Trust Account at the ANZ Bank. We hereby guarantee that as per the agreement, the funds will not be released until my client has an acceptable Bank Letter of Credit or until after the period of four weeks from the date of the Agreement. 8 Meanwhile, it seems that the appellant had received by facsimile from Thailand a document apparently on the letterhead of an entity described as The Commercial Trading Bank of Dubai Limited, purporting to be a "Stand-by Letter of Credit" in favour of a company associated with the appellant, in the sum of $US500,000.00 with a "maturity date" of 21st June 1996. 9 Shortly before 3.30pm on 31st May 1996, the appellant returned to Ms. Scheidel's office with this document, and spoke to Ms. Scheidel. At about 3.30pm, Ms. Scheidel began a long consultation with another client on a family law matter, which continued until about 5.30pm. 10 At 3.41pm, a letter was sent by facsimile from Mr. Hansen to Ms. Scheidel in the following terms: RE: ASLEMOSKI AND LUBE BUJAROSKI We thank you for your letter of 31 May 1996, directed to our client. Regarding the Deed of Guarantee we insist however that the moneys paid by our client is to be placed in your trust account not Lube Bujaroskis Solicitors Trust Account. Therefore we will require a receipt from Marilyn J. Scheidel & Associates Solicitors Trust Account for the sum of $65,000.00. That moneys will ofcourse(sic) remain in your trust account until that sum together with the sum of $10,000.00 is paid to our client. In addition when our client receives your trust account receipt we will also require from your firm a written undertaking from your firm that the sum of $65,000.00 will remain in your trust account not to be released to anyone except to our client. We await your client's instructions in that regard. 11 It seems clear that Ms. Scheidel interrupted her consultation with the other client to make alterations to the original draft, following the receipt of that fax. The only alteration made at that stage was to substitute for the words "Lube Bujarovski's Solicitors Trust Account" the words "Marilyn J. Scheidel & Associates (Solicitors) Trust Account held at the ANZ Bank in Canberra". The document was thus altered was then signed by the appellant and witnessed by Ms. Scheidel, and a copy was faxed to Mr. Hansen at 3.50pm. 12 At about 4.15pm, Mr. Hansen faxed a further letter to Ms. Scheidel, in the following terms: RE ASLEMOSKI AND LUBE BUJAROSKI We thank you for the amended deed of guarantee however for the sake of completeness we would be pleased if it could read after "the above funds being $75,000.00 …" or part thereof will not be released from the trust account in any event and shall be released to Paul Aslemoski and no other person at the end of the four (4) week period. Upon the deed of guarantee showing that amendment we will contact our client with a view to possibly releasing the funds required by your client. In addition ofcourse (sic) we will require the signed undertaking by your firm as alluded to in our previous letter of today's date. 13 It seems clear that Ms. Scheidel again interrupted her conference, and again altered the deed of guarantee on her computer, by substituting the following sentence for the last sentence in the first substantive paragraph of the document: The above funds being $75,000.00 or part thereof will not be released from the Trust Account in any event and shall be released to Paul Aslemoski and to no other person at the end of the four (4) week period. 14 This altered document was signed by the appellant and witnessed, not by Ms. Scheidel, but by Mr. Wilson, a solicitor employed in Ms. Scheidel's office; and a copy of the signed document was faxed to Mr. Hansen at 4.23pm. 15 Thereafter the appellant and Mr. Wilson went to Mr. Hansen's office and collected a cheque for $65,000.00, and they then went to the bank and deposited this money in Marilyn Scheidel & Associates Trust Account. Thereafter, $62,720.92 was withdrawn from that trust account by Ms. Scheidel, and on 3rd June 1996 this amount was sent by telegraphic transfer in the amount of $US50,000.00 to overseas solicitors by the appellant. 16 Two lots of $10,000.00 were paid to Mr. Aslemoski, but no part of the principal was repaid and no part was ever returned to the trust account of Ms. Scheidel. It appears that the Commercial Trading Bank of Dubai Limited does not exist, or at least does not exist as a genuine bank. 17 The appellant gave evidence to the effect that the loan was negotiated on the basis that it could be invested overseas, and that he understood the money could be removed from Ms. Scheidel's trust account for that purpose once he had an "acceptable Bank Letter of Credit"; and that he understood that this meant acceptable to Ms. Scheidel, and that the document sent by facsimile from Thailand satisfied this condition, so that the money was available to be taken from Ms. Scheidel's trust account. The appellant also gave evidence that he understood the first version of the document which he signed, and that he signed the second version without reading it, that it was never explained to him, and that he did not know of the requirement that the money remain in the trust account. 18 The jury's findings involved their being satisfied that Ms. Scheidel acted fraudulently in removing the money from the trust account, and that the appellant knew of this. It is common ground that this in turn required a finding that the appellant knew and understood the requirement added by the last amendment of the document. The essential issue in the conviction appeal is whether such a finding involved appealable error. 19 The first ground of appeal was that the verdict of guilty was unreasonable and could not be supported having regard to all the evidence. 20 Mr. Brady for the appellant submitted that the issue on the appeal concerned whether it was open to the jury to find beyond reasonable doubt that the appellant read and understood the document signed by him between about 4.15pm and 4.23pm on 31st May, or otherwise became aware of its effect. He submitted that such a finding was based entirely on circumstantial evidence, and had to be inferred from the mere fact of signing. He submitted that the jury's finding was unreasonable in that it could not be supported by the evidence, and he referred to M v. The Queen (1994) 181 CLR 487, Jones v. The Queen (1997) 191 CLR 439, and R. v. Giam (NSWCCA 10/3/99). 21 He submitted that the evidence was that, until 4.15pm on 31st May, discussions concerning the loan were on the basis that it was for investment overseas. The first time that the requirement that the money stay in the trust account could have been conveyed to the appellant was through and subsequent to the facsimile of 4.15pm; and the amended deed was signed by the appellant and returned by facsimile by 4.23pm. There was no evidence that he was advised as to its effect; and since the document was witnessed by Mr. Wilson, and since Ms. Scheidel was involved with another client, there is a strong inference that he was not advised. A jury acting reasonably could not have rejected as a reasonable possibility that the appellant did not read or did not understand the document, and accordingly he should not have been convicted. Actual knowledge of elements of the principal offence was necessary. Mere recklessness was insufficient: Bruce v. Williams (1989) 46 A Crim R 122. 22 Mr. Brady submitted that this was a case of a similar character to Knight v. The Queen (1992) 175 CLR 495, in which the High Court held that the circumstances were such that an intent to kill could not be inferred beyond reasonable doubt. 23 Grounds 2 and 3 of the Amended Notice of Appeal were not pressed, but leave was sought to rely on a different ground, namely that the trial judge failed to give the jury any or any adequate direction in relation to the circumstantial nature of the Crown case against the appellant. 24 Mr. Brady submitted that, although the trial judge had said at the outset of his directions that the jury should not draw any inference unless it was the only rational inference in the circumstances, he should have given the usual circumstantial evidence direction at the time when he was explaining the Crown case to the jury, at least saying that any conclusion or inference from basic facts as to any essential element of the charge must be the only rational inference that could be drawn. 25 The final ground of appeal against conviction is ground 4 in the Amended Notice of Appeal, namely that the trial judge erred in that he failed to adequately direct the jury to consider corroborative evidence, and in particular the lies of the co-accused, separately in the case of each of the accused. 26 Mr. Brady submitted that in a joint trial a trial judge must separately direct the jury as to which evidence can be used as against which accused, and of the circumstances and the purposes for which it can be used: R v. Hauser (1982) 6 A Crim R 68 at 71. In this case, the trial judge referred to the ability of the jury, should they find that Ms. Scheidel told lies, to find those lies as "actually constituting some evidence in this case and in particular corroborating or rendering more credible the other evidence that is brought forth from documents and otherwise to suggest the dishonest intent". Mr. Brady submitted that the trial judge failed to give a clear direction that, if the jury came to the conclusion that Ms. Scheidel had lied, that fact could not be used to corroborate the case against the appellant. Mr. Brady accepted that the trial judge had indicated, in general terms, that the jury must look at the evidence against each accused; although he pointed out that the judge did say that, if they convicted Ms. Scheidel on the evidence in relation to her case, they should look at the whole of the evidence as against the appellant. In those circumstances, there was a particular need for a clear direction that any lies told by Ms. Scheidel could not be used as supporting a finding of guilt against the appellant. 27 I will deal in turn with the three grounds of appeal relied on. 28 As regards the first ground, I do not accept a submission made by Mr. Cogswell SC for the Crown that the appellant's signing of the changed form of agreement was direct evidence that he knew and understood its contents. In my opinion, it is rather evidence from which an inference of knowledge and understanding may be drawn. The strength of such an inference must depend upon the circumstances. The circumstances of the signing of a document may be such that the inference of knowledge and understanding of its contents can readily be drawn beyond reasonable doubt; or they may be such that such an inference could at best be drawn on the balance of probabilities, or perhaps not at all. In most cases, there would be at least a theoretical possibility that a person signing a document did not read it or did not understand it, but it must depend upon the circumstances whether this is a reasonable possibility such as would prevent knowledge and understanding being inferred beyond reasonable doubt. 29 The circumstances affecting the strength of the inference would include such things as the character and intelligence of the person signing it, the importance of the document to that person, the opportunity to read and digest it, the length of the document, the salience in the document of the relevant material, the clarity of the language in which it is expressed, and whether or not it is something which would be readily assimilated by reason of its being normal or expected or otherwise unsurprising. Normally, the assessment of these circumstances and thus the strength of the inference would be a matter for the jury; and very often, if no explanation is advanced by the accused which the jury considers reasonably possible, the inference of knowledge and understanding can be drawn beyond reasonable doubt. 30 The question seems to me to have some similarity to the position in relation to possession of recently-stolen property. Theoretically it is always possible that an accused could have come by recently-stolen property completely honestly, or at worst with no more than a suspicion that the property was stolen; and the strength of an inference that an accused knew that the property was stolen depends upon all the circumstances, these being matters which the jury can assess. Even though there may be circumstances in which possession of recently-stolen property, even if entirely unexplained, would not give rise to an inference beyond reasonable doubt that the accused knew that the property was stolen, the assessment of the circumstances and the strength of the inference is generally left to the jury. 31 In the present case, this was a significant document, it was short, and the relevant material was not inconspicuous and was expressed reasonably clearly. It could be suggested that the relevant material would not have been readily assimilated, because of confusion from a possible internal conflict in the document (between the reference to the purpose of the loan as "investment", and the requirement that the money stay in the solicitor's trust account for the duration of the loan), although it should be noted that Mr. Hansen gave evidence that his understanding was that what was required was that the money be shown to be "in an account in Australia and that would assist Mr. Bujaroski, I think, with obtaining some form of credit overseas". There was also evidence to the effect that this requirement was new and unexpected, evidence as to the hurried circumstances in which the document was signed, evidence that it was not explained to the appellant by Ms. Scheidel or Mr. Wilson, and evidence to the effect that the appellant would have expected an explanation if the alteration to the document was significant. There was no evidence positively to suggest the contrary of any of these propositions, and the suggestion that the document was signed in hurried circumstances is supported by objective evidence; but on the other hand, the jury may not have believed the appellant's evidence as to the other matters which I have mentioned. 32 The question of the character and intelligence of the appellant was very much one for the jury, as was the degree of importance which the document had for the appellant and his incentive to read and understand it. Similarly, the assessment of the explanation offered by the appellant was a matter for the jury. The appellant claimed that the $65,000.00 was required for, and used in, an overseas investment in which he genuinely expected to receive $US500,000.00 within one month in return for $US50,000.00; and in my opinion it was open to the jury to disbelieve this claim and the appellant's other explanations, to give no weight whatsoever to any of the appellant's evidence, and to take into account their assessment of the appellant and their disbelief of his proffered explanations in deciding whether they could infer beyond reasonable doubt, from his signing of the document in the circumstances, that he knew and understood that it required that the money remain in Ms. Scheidel's trust account. I am not satisfied that such an inference would be an unreasonable one. 33 For those reasons, I am not satisfied that this ground of appeal is made out. 34 Turning to the second ground of appeal, the one introduced by amendment, this was not in my opinion a case requiring a specific direction as to circumstantial evidence. Although I have expressed the view that the signing of the document is not direct evidence of knowledge and understanding, it would not necessarily be described as circumstantial evidence. There is authority that a circumstantial evidence direction may not need to be given where the inference to be drawn is as to the accused's state of mind: Rogerson (1992) 65 A Crim R 530 at 545. In my opinion, the direction given about inference was sufficient in the circumstances of this case. 35 This point was not taken at the trial, and accordingly leave would be required if it is to be relied on on appeal. Even if I were of the view that it would have been desirable to give a circumstantial evidence direction, I do not consider that any injustice has been caused by the failure to give such a direction. 36 Turning to the third ground relied on in the appeal against conviction, in my opinion lies told by Ms. Scheidel were admissible against the appellant to prove that element of the charge against the appellant constituted by Ms. Scheidel's guilt of the principal offence. It is not hearsay evidence as against the appellant: in terms of s.59 of the Evidence Act, it is not evidence of a "fact that the person intended to assert by that representation". Accordingly, the lies, assuming the jury found them, were admissible against Ms. Scheidel not as admissions, but rather to show a mental state which itself had some relevance to the probability of her guilt. Her guilt was part of what had to be proved in the case against the appellant. 37 On the other hand, there was no suggestion in the summing up that Ms. Scheidel's lack of credibility or consciousness of guilt affected the appellant's credibility or was otherwise relevant to the appellant's knowledge and understanding of the contents of the document. There is nothing in the directions given by the trial judge concerning lies by Ms. Scheidel which could reasonably be taken as suggesting that such lies could be used in this way against the appellant. 38 At the very most, it could be said that there was an omission to do something that might have been done out of an abundance of caution. In my opinion, such omission would not amount to an error. Furthermore, the point was not taken at the trial, and in my opinion, no miscarriage of justice has been caused. 39 Turning to the application for leave to appeal against sentence, the ground in the Amended Notice of Appeal was that the sentence was excessive and gave rise to a justifiable sense of grievance when compared to the sentence of the co-accused. 40 Mr. Brady in his submissions focussed particularly on the question of parity, referring to Postiglione v. The Queen (1996-7) 189 CLR 295 at 301. Mr. Brady submitted that it was inappropriate that the principal offender should receive a penalty less than the person aiding and abetting: there were no factors adverted to by the trial judge to justify the greater sentence being imposed on the appellant. 41 Mr. Cogswell conceded that in his submissions before the trial judge the Crown had treated Ms. Scheidel's offence as more serious; although he submitted that there were subjective circumstances applying to her which were an important factor and must have been taken into account. He also pointed to the benefit apparently obtained by the appellant through the application of money to his purposes. 42 The judge may have acted on the basis that in substance the appellant was the person who instigated the offences and received the benefit of them; but that was not a matter established by the jury's verdict or a matter which could be inferred beyond reasonable doubt by the judge. Furthermore, to act on that basis would in my opinion have been contrary to the principle in R v. De Simoni (1981) 147 CLR 383. 43 In my opinion, despite the subjective factors relevant to Ms. Scheidel, this is not a case where a greater penalty for the secondary offender than that imposed on the primary offender can be justified. The penalty imposed on the appellant should be reduced so as to be the same as that imposed on Ms. Scheidel. 44 I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal against sentence allowed, sentence quashed, and in lieu thereof appellant sentenced to imprisonment for two years commencing on 3rd February 2001 and expiring on 2nd February 2003, with a non-parole period of eighteen months commencing on 3rd February 2001 and expiring on 2nd August 2002, such sentence to be served by way of periodic detention. 45 DOWD J: I have read the judgment in draft form of Hodgson JA. I agree with the proposed orders and with His Honour's reasons. 46 SMART AJ: I agree with the reasons for judgment of Hodgson JA. 47 It was pointed out by Dawson J in Shepherd v The Queen (1989-1990) 170 CLR 573 at 578 that a circumstantial evidence direction should only be given where it is helpful and that in a case where the circumstantial evidence involved is slight such a direction may be confusing rather than helpful. Dawson J stated, "… there is no invariable rule of practice, let alone a rule of law, that the direction should be given in every case involving circumstantial evidence". In the present case a circumstantial evidence direction would not have been helpful. As Hodgson JA points out the critical issue at the trial was clear and simple. 48 I agree with Hodgson JA that the circumstances in which a document is signed are of critical importance and that the matters to which he has referred should be considered. That list is not exhaustive. Generally the signing of a document provides cogent evidence from which to infer that the signatory was aware of the effect of the document. That is so in the present case. The document was less than one page in length and reasonably clear. The applicant was well educated and experienced. It is inconceivable that he was not aware of the effect of the amendment to the earlier document, what the lender required and why he had to sign the later document. 49 As to sentence, this was not a case in which the criminality of the accessory was greater than that of the principal, nor one in which the subjective features of the principal offender should have led to a lesser sentence being imposed upon her than the applicant. As a solicitor, the principal offender should have been acutely conscious of the criminal course upon which she embarked. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.