Boscolo v Regina

MEAGHER JA: The appellant, Mrs Boscolo, was sentenced by Taylor DCJ to two amounts of six months periodic detention to commence on 14 November 1997. She appeals from that sentence.

The circumstances of her conviction are somewhat unusual. She and her then husband (now her ex-husband) Mario Boscolo bought two lots of land in West Australia, one at 428 Carrington Street, Hamilton Hill and the other at 120 Mills Street, Coogee Beach. Each was apparently bought with his money but was registered in her name. On 28 August 1987 he protected his interest in the land by lodging a caveat on each title.

The rest of the facts may be summarized shortly. The marriage foundered, the parties separated and despite an attempted reconciliation or two, were divorced. In the course of the divorce proceedings the Family Court made orders which, in effect, divested the husband of all his interest in each of the two properties in question. He appealed, and the status quo was protected by an order staying the divesting.

Then, before the appeal was heard, the West Australian Department of Land Administration withdrew each caveat. It did so pursuant to what appeared on its face to be a valid request to withdraw the caveat signed by Mr Boscolo. Mr Boscolo maintained, and gave evidence to that effect, that neither of the signatures was his. The Crown, for reasons which it is not relevant to discuss, concluded that the appellant forged her husband’s signature on each withdrawal form and charged her under s.300(1) of the Crimes Act 1900 with making false instruments, one charge in respect of each form.

The jury could not agree and were duly discharged.

However, Mrs Boscolo was also charged with two charges (one in respect of each form) with using a false instrument under s.300(2) of the Act, and in respect of these two charges the jury returned a verdict of guilty. It is necessary to set out the terms of that sub-section. It reads as follows: “(2) A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person: (a) to accept the instrument as genuine, and (b) because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice, is liable to imprisonment for 10 years.” Attention should be devoted to the expression “prejudice” in s.300(2)(b). It is given a rigid exclusive definition in s.305, which reads as follows: “For the purposes of this Division, an act or omission is to a person’s prejudice if, and only if, it is one that (if it occurs); (a) will result: (i) in the person’s temporary or permanent loss of property, or (ii) in the person’s being deprived of an opportunity to earn remuneration or greater remuneration, or (iii) in the person’s being deprived of an opportunity to obtain financial advantage otherwise than by way or remuneration, or (b) will result in any person being given an opportunity: (i) to earn remuneration or greater remuneration from the first-mentioned person, or (ii) to obtain a financial advantage from the first-mentioned person otherwise than by way of remuneration, or (c) will be the result of the person’s having accepted a false instrument as genuine, or a copy of a false instrument as a copy of a genuine one, in connection with the person’s performance of a duty.”

As far as the Hamilton Hill property was concerned, the appellant wrote to a company called Blackburn and Dixon Pty Limited in early May 1993 seeking a loan of $45,000 to be secured over the Hamilton Hill property; that company replied on 18 May 1993 explaining that a withdrawal of the caveat would be required before any loan was made; four days later, on 21 May 1993 the Department of Land Administration duly received an apparently valid form, which she executed and returned the following day; the mortgage was duly registered and on 28 May 1993 the mortgaged moneys were deposited with the appellant’s bank account.

As far as the Coogee Beach property was concerned, a parallel chain of events occurred, with a company called K.J. Investments playing the same part as Blackburn and Dixon. On 26 October 1993 the Department received an apparently valid withdrawal of caveat form; the caveator’s signature on it was forged; mortgage moneys were advanced and a mortgage registered on the title.

It was many months later that Mr Boscolo woke up.

The Family Court, on 3 August 1994, after the events I have described, dismissed Mr Boscolo’s appeal. From that moment it is clear Mr Boscolo had no interest, legal or equitable, in either property.

The jury convicted the appellant on both the “user” charges. The appellant’s learned counsel, challenging those convictions, advanced a number of submissions, the chief of which was that there was no geographical nexus between the usage relied on and the State of New South Wales. We entertained that submission, although it had not been made at trial. He did, however, concede that if the withdrawal forms had been posted from New South Wales, the requisite nexus would exist. He also agreed that the evidence made it clear that the forms were posted to Perth. But, he said, there was no evidence they were posted from New South Wales. It was possible, he said, that the appellant might, for example, have flown to Canberra or Hobart in order to post them. But this is a fanciful submission. The appellant was living in a Sydney suburb with six of their children. All correspondence between her and the two lending companies went to and came from her Sydney address.

A more substantial submission, was that the acceptance by the Department of the withdrawal forms did not cause prejudice to any person, as referred by s.300(2)(b). It did, of course, deprive Mr Boscolo of whatever protection the caveats afforded him; but that is not one of the forms of prejudice which is listed in s.305. And, what is more to the point, it is not the form of prejudice on which the Crown relied at the trial. The “prejudice” on which the Crown relied seems to have been that the withdrawal deprived him of the opportunity to be “notified”. In his remarks to the jury his Honour said: “Once the caveat is withdrawn the Registrar or Department of Land Administration is able to deal by way of sale or mortgage without notification to the person claiming interest. The thrust of the Crown case with respect to each of the two properties is the accused (sic) was the caveator. He protected his interests by placing caveats on the title. The accused forged his signature on the withdrawal of caveat original and sent it to be lodged and that thereafter it was entered on the certificate of title. In this way the title of the property was freed so that she could mortgage it. In this way Mr Boscolo would not be notified.”

As Mr Lowe said, it is not clear why the Department would notify the caveator of anything if it had received an apparent request from the caveator. More to the point, absence of notification is not one of the forms of prejudice listed in s.305.

In these circumstances I think it must be concluded that the Crown failed to prove an essential ingredient of the charge. The result must therefore be:

1. Appeal allowed. 2. Convictions and sentence quashed.

GROVE J: I agree with Meagher JA.

KIRBY P: I agree with Meagher JA.