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R v Succarieh

 

[2017] QCA 282

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Succarieh [2017] QCA 282

PARTIES:

R
v
SUCCARIEH, Omar
(appellant/applicant)

FILE NO/S:

CA No 88 of 2017

CA No 119 of 2017

DC No 2272 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – [2017] QDC 73; Date of Sentence: 22 May 2017 (Devereaux SC DCJ)

DELIVERED ON:

17 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2017

JUDGES:

Fraser and Gotterson and McMurdo JJA

ORDERS:

  1. Appeal dismissed.
  2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of extortion by a judge sitting without a jury – where the appellant gave evidence of a belief that the complainant owed money to a third party – where the prosecution alleged several threats were made against the complainant, including threats to take over the complainant’s business, bring the demands to the attention of the complainant’s wife and daughter and cause physical injury to the complainant – where the appellant denied the threat to cause physical injury – whether it was reasonably open to the learned trial judge to conclude that the appellant’s belief as to indebtedness was not based on reasonable grounds – whether it was reasonably open to the learned trial judge to have rejected the appellant’s denial of the threat to cause physical injury to the complainant – whether the verdict was unreasonable

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – EXTORTION AND LIKE OFFENCES – EXTORTION OR DEMANDING WITH MENACES – REASONABLE OR PROBABLE CAUSE – where the appellant claims he had a reasonable and honest belief that a debt was owed by the complainant and he was authorised to collect it – where some of the threats allegedly made by the appellant were unlawful – where s 415(1) of the Criminal Code (Qld) states that a person who, without reasonable cause, makes a demand with intent to gain a benefit for any person and with a threat to cause a detriment, commits a crime – where the appellant submits that, as a matter of law, the phrase “without reasonable cause” applies only to the demand itself and not to the alleged threat – whether the learned trial judge erred in finding the scope of the phrase “without reasonable cause” extends to the detriment threatened

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to two years and nine months’ imprisonment – where the applicant was already serving a sentence for four years and six months’ imprisonment for Commonwealth offences to which he pleaded guilty – where the parole eligibility date for the subject offending is eight months after the parole eligibility date for the Commonwealth offending – where the combination of the two sentences result in imprisonment for a period of about five years and five and a half months – where the applicant will serve three years and eight months of the combined sentence before becoming eligible for parole – where that period approaches 70 per cent of the total combined sentences – whether the requirement to serve almost 70 per cent of the combined sentences makes the sentence manifestly excessive – whether it was necessary for the learned sentencing judge to explain why the sentence was imposed with that result

Criminal Code (Qld), s 24, s 415

Larceny Act 1916 (UK), s 29

Douglass v The Queen (2012) 86 ALJR 1086; (2012) 290 ALR 699; [2012] HCA 34, cited

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited

Hardie and Lane Ltd v Chilton & Ors [1928] 2 KB 306, considered

R v Campbell [1997] QCA 127, considered

R v Dymond [1920] 2 KB 260, considered

R v Jessen [1997] 2 Qd R 213; [1996] QCA 449, cited

R v Kelly, Baker and Perry [1991] CCA 198, considered

R v Kitson [2008] QCA 86, considered

R v Lacey & Lacey [2011] QCA 386, considered

R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420, distinguished

R v Robertson [1993] QCA 514, considered

Thorne v Motor Trade Association [1937] 3 All ER 157; [1937] AC 797, considered

COUNSEL:

S C Holt QC for the appellant/applicant

G P Cash QC for the respondent

SOLICITORS:

Anderson Fredericks Turner for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree with those reasons and with the orders proposed by his Honour.
  2. GOTTERSON JA:  The appellant, Omar Succarieh, was tried by judge alone on a single count that between 10 and 26 March 2014 at Brisbane City or elsewhere in Queensland, he “demanded a sum of money, without reasonable cause, with intent to gain a benefit for Yousef Masri [and] threatened to cause a detriment to Vasilios Pippos”, the complainant.
  3. The count alleged an offence against s 415(1) of the Criminal Code (Qld).  The trial took place in the District Court at Brisbane.  On 31 March 2017, the appellant was found guilty as charged.
  4. On 22 May 2017, the appellant was sentenced to imprisonment for two years and nine months.  A parole eligibility date at 10 May 2018 was set.
  5. On 26 April 2017, the appellant filed a notice of appeal against his conviction.[1]  An application for leave to appeal against sentence was filed on 7 June 2017.[2]

Circumstances of the alleged offending

  1. The complainant ran the Courtyard Palms Café in George Street Brisbane.  On Tuesday 11 March 2014, he received a phone call from the appellant who was unknown to him.  The caller described himself as being a friend of a friend.  He intimated a meeting between the two of them at which “things” would be discussed.
  2. As to events which followed, the learned trial judge accepted the following facts as proved either directly or by necessary inference:[3]

“a. The complainant and Masri had a business arrangement in relation to a fruit shop owned by Masri.

b. Masri alleged that the complainant stole stock and cash from the business as a result of which the complainant owed him at least $50,000.

c. Masri authorised [the appellant] to approach the complainant to arrange for the money to be repaid.

d. On 12 March 2014 [the appellant] visited the complainant and they sat down at a table at the Courtyard Café and spoke for about 30 minutes.

e. The complainant denied that he owed the money but ultimately agreed to a payment plan and indicated that he wanted to apologise to Masri.

f. The agreement was that the complainant would pay $10,000 the next day and then $1,000 per week until the debt was repaid.

g. After [the appellant] left, the complainant arranged for his friend, “Mitch” Conias to help him.  Over the course of the next day, 13 March 2014, there were several conversations between [the appellant], Masri, the complainant and Conias.

h. Conias and the complainant advised [the appellant] that Conias was going to pay the $10,000 on the complainant’s behalf.  However, they both wanted to pay the money directly to Masri.  The complainant explained twice that this was so that he could apologise to Masri.

i. At 10.31.02pm on 14 March 2014 Conias delivered $10,000 to Masri on the complainant’s behalf.

j. On 24 March 2014 [the appellant] contacted the complainant to arrange for the next payment to be made.

k. A complaint was made to police on 26 March 2014.”

None of these factual findings is challenged on appeal.

  1. The Crown alleged, and the appellant did not dispute, that, at the café on 12 March 2014, he had demanded that the complainant pay $50,000 with intent to obtain a benefit for Mr Masri.  He did, however, dispute further allegations by the Crown that, at that time, he made threats to cause a detriment, namely:[4]
    1. a threat to take over the complainant’s business “either completely or for a period of time, without the complainant’s consent and with force if required”;
    2. a threat to “bring the demands directly to the attention of the complainant’s wife and daughter causing the complainant to fear for the safety of his family”; and
    3. a threat to cause “physical injury” to the complainant.
  2. In evidence in chief, the complainant said that the threat about taking over the business was made before negotiations about payments began.[5]  The threat about talking to the complainant’s wife and daughter took place before he offered to pay $10,000 and had protested that he had no money.[6]  During a later discussion about a single payment of $10,000 and payments of $1,000 per week, the consequences of him not paying were discussed.  The complainant’s evidence was:[7]

“We spoke about … if you didn’t pay, it goes back up to normal, and then if you just stop paying, they will come after you and break your legs.”

The conversation ended with an agreement that the appellant would come back the following day and collect $10,000.[8]

  1. As to the last-mentioned alleged threat, the appellant gave evidence disputing that he threatened to break the complainant’s leg.[9]  Otherwise he explained that his reference to taking over the business in the conversation was to looking over the books to make sure it was sufficiently profitable for the complainant to be able to make the payments.[10]  He accepted that he mentioned speaking to the complainant’s daughter but said that that was to verify whether the complainant was telling the truth in saying that the business in fact belonged to his father-in-law and not himself.[11]
  2. The conversation at the café was partially overheard by two police officers seated about two metres away.  They testified at the trial.  As well, a number of conversations between the participants that took place after the meeting were recorded and adduced in evidence.

Section 415

  1. The crime of which the appellant was charged was extortion.  Relevantly, s 415 of the Criminal Code (Qld) provides:

“(1) A person (the demander) who, without reasonable cause, makes a demand

  1. with intent to

i. gain a benefit for any person (whether or not the demander); or

ii. cause a detriment to any person other than the demander; and

  1. with a threat to cause a detriment to any person other than the demander;

commits a crime.

Maximum penalty—

  1. if carrying out the threat causes, or would be likely to cause, serious personal injury to a person other than the offender—life imprisonment; or
  1. if carrying out the threat causes, or would be likely to cause, substantial economic loss in an industrial or commercial activity conducted by a person or entity other than the offender (whether the activity is conducted by a public authority or as a private enterprise)—life imprisonment; or
  1.  otherwise—14 years imprisonment.
  1. It is immaterial that—
  1. the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or
  1. the threat does not specify the detriment to be caused; or
  1. the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way; or

Example

a threat to cause a detriment to the public or any members of the public

  1. the detriment is to be caused by someone other than the demander.”

The findings at first instance

  1. In the course of his reasons for judgment, the learned trial judge analysed the elements of this offence.  He resolved a significant issue of statutory construction concerning one of them.  He made findings of fact and stated his conclusions with respect to those elements based on the findings.  He explained his reasons for the conclusions.
  2. His Honour summarised his principal conclusions as follows:[12]

[163]There is no contest that [the appellant] made the relevant demand with intent to gain a benefit for Masri. I am satisfied beyond reasonable doubt that the demand was made without reasonable cause and the threats were made.

[164]There are two, at least, routes to the finding that the demand was made without reasonable cause.

[165]First, there was no reasonable cause because there was no admissible evidence of a debt and if, which is likely, [the appellant] believed the debt existed, he did not so believe on reasonable grounds.

[166]Second, in any case, even if [the appellant] made the demand under the honest and reasonable but mistaken belief that the complainant owed Masri more than $50,000, there was no reasonable cause for the demand as made – that is, with threats of unlawful violence to the complainant and unlawful trespass to his business.

[167]In the result, I find [the appellant] guilty of the charge.”

  1. In considering each ground of appeal, I shall refer to aspects of his Honour’s reasons for judgment as are relevant to it.

The grounds of appeal against conviction

  1. At the hearing of the appeal, the appellant was given leave to amend his grounds of appeal against conviction to the following:
    1. The learned trial judge erred in directing himself as to the element of “reasonable cause” and thereby made an error of law.
    2. The learned trial judge erred in concluding that the appellant did not have an honest and reasonable belief that the debt was owed and that he was authorised to collect it.
    3. The learned trial judge failed to properly apply the standard of proof in respect of the effect of the appellant’s sworn evidence and thereby caused a miscarriage of justice.
    4. The verdict was unreasonable and cannot be supported having regard to the evidence.

It is convenient to consider these ground separately.

Ground 1

  1. There are two aspects to this ground of appeal.  One of them relates to the relevance of the threat to reasonable cause.  The other concerns the approach adopted by the learned trial judge in concluding that there was no reasonable cause.

Relevance of threat to reasonable cause

  1. The conclusion expressed at [166] of his Honour’s reasons reflects the resolution of the issue of statutory interpretation that he had earlier reached.  That issue concerned the extent of application of the phrase “without reasonable cause” in s 415(1).  His Honour reasoned that the phrase was not confined in its application to what was demanded be done, but included also the threat.  He held that “a proper assessment as to whether the prosecution has proved there is no reasonable cause for the demand involves examining all its circumstances including the nature of any threats made”.[13]
  2. In so holding, his Honour rejected a submission made by defence counsel, and renewed on appeal, that, as a matter of law, the phrase applies only to the demand itself and not to the alleged threat.  Thus, it was submitted, if the Crown could not exclude there having been a reasonable cause for the demand, irrespective of the nature of any threat, then an acquittal must follow.[14]
  3. Appellant’s submissions: In oral argument, senior counsel for the appellant observed that this issue of construction had not been authoritatively determined by this Court.  Whilst he accepted that the interpretation favoured by the learned trial judge was “open”, he submitted that the language and structure of s 415 strongly supported the construction advanced by him.[15]
  4. In advancing his submissions, counsel referred to a number of English decisions concerning the offence in s 29(1) of the Larceny Act 1916 (UK), a re-enactment of the offence first constituted by s 8 of the Larceny Act 1827 (UK).[16]  That offence criminalised conduct whereby “every person who utters, knowing the contents thereof, any letter or writing demanding of any person with menaces, and without reasonable or probable cause, any property or valuable thing shall be guilty of felony”.
  5. It was submitted that both s 415(1) and s 29(1) concerned blackmail; that the English decisions on the latter provision were relevant to the interpretation for the former; and that their relevance in that regard had been recognised in several decisions of this Court, particularly R v Jessen[17] and R v Campbell.[18]  Further, it was submitted that the English decisions supported the interpretation for which the appellant contended.
  6. Counsel for the appellant stressed that he was not submitting that to make a demand with reasonable cause accompanied by a threat of personal injury was not criminal conduct.  The making of the threat would likely offend against one or more other provisions of the Code for which a maximum penalty less than life imprisonment would be imposed; but not offend against s 415(1) for which the maximum penalty would be life imprisonment.
  7. Respondent’s submissions: The respondent submitted that the interpretation adopted by the learned trial judge was correct.  It better accords with the language of the section.  To confine the application of the phrase “without reasonable cause” to the subject matter of the demand would be artificial.[19]
  8. It was further submitted that observations made in this Court and its predecessor, the Court of Criminal Appeal, in Campbell, R v Kelly, Baker and Perry[20] and R v Lacey & Lacey[21] were consistent with the adopted interpretation.  Moreover, that interpretation found support in the English decisions.
  9. Discussion: I preface my discussion by noting that, upon enactment of the Criminal Code (Qld) in 1899, Ch XXXVIII thereof included s 414 (Demanding Property with Menaces with Intent to Steal), s 415 (Demanding Property by Written Threats), s 416 (Attempts at Extortion by Threats) and s 417 (Procuring Execution of Deeds, &c., by Threats).  In 1961, s 415 was repealed and re-enacted as an offence of demanding property by written or oral threats as follows:[22]

“Any person who, with intent to extort or gain anything from any person-

  1. Knowing the contents of the writing, causes any person to receive any writing demanding anything from or that anything be procured to be done or omitted to be done by any person without reasonable or probable cause, and containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with; or
  1. Orally demands anything from or that anything be procured to be done or omitted to be done by any person without reasonable or probable cause, with threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with;

is guilty of a crime and is liable to imprisonment with hard labour for fourteen years …”

  1. In 2008, ss 415, 416 and 417 were repealed.  They were replaced with one section, s 415 which remains in the form in which it was then enacted.  Relevantly, the phrase “without reasonable or probable cause”, which had appeared in the antecedence, was replaced by the phrase “without reasonable cause”.
  2. I now turn to the scope of application of the phrase “without reasonable cause”.  As a matter of syntax, it qualifies the expression “makes a demand”.  It is adverbial in that it is a qualification upon the act of making a demand.[23]  Likewise, the prescriptions in paragraphs (a) and (b) of s 415(1) qualify the act of making a demand.  That is to say, in order to offend against s 415(1), the demand must be made with one of either of the intents set out in (i) and (ii) of paragraph (a) and with a threat of the kind referred to in paragraph (b).  Thus, when a demand is made with such an intent and threat, both are incidents of the making of the demand.
  3. Accordingly, in my view, the scope of application of the phrase “without reasonable cause” extends to the detriment threatened in the course of making the demand.  A consideration of whether there is reasonable cause for making a particular demand involves consideration of any detriment threatened in the course of making the demand.  It is not limited to a consideration of whether there is reasonable cause for that which is demanded be done.
  4. The appellant’s interpretation appears to me impermissibly to confine the act of making the demand to what is demanded to be done so as to exclude the threat from the former.  There is no warrant in the language of the provision for that.  I acknowledge that in paragraph (a) of s 415(2), reference is made to “demand or threat” made.  However, I do not regard that formulation as intended to imply that, in the application of s 415(1), where a threat is made, it is an act separate and distinct from the making of the demand.
  5. As to the English cases referred to by the appellant, foremost reliance was placed upon the decision of the Court of Criminal Appeal in R v Dymond.[24]  In that case, the defendant sent a letter to the complainant, a local mayor, in which she accused him of putting his hand under her clothes one night.  She requested an apology and added that if he paid, she would keep quiet but, if not, she would let everyone in town know.  The trial judge ruled that it would be no defence to establish that the defendant had been indecently assaulted by the complainant and that she had reasonable and probable cause for writing the letter on that account.
  6. The Earl of Reading CJ, for the Court, referred to several earlier cases on s 29(1) Larceny Act,[25] noting that they had held that “without any reasonable or probable cause” applied to the money demanded and not to the accusation constituting the threat.  His Lordship continued:[26]

“In our judgment the question must be determined solely by reference to the language of the statute.  The words are “without any reasonable or probable cause” and nothing in the original statute or in the consolidating statute suggests that an honest belief by the accused in a reasonable or probable cause for the demand would negative the crime.  In order to constitute the offence it must be proved that the accused: (1.) uttered the writing; (2.) demanded property or a valuable thing with menaces; (3.) knew the contents of the writing; and (4.) had no reasonable or probable cause for making the demand.  It is for the jury to decide whether there was reasonable or probable cause for making the demand and it is not for them to decide whether the accused believed that she had reasonable or probable cause for making it.  The belief of the accused may, of course, be taken into consideration by the judge in passing sentence, but in our view it is not material in ascertaining whether the crime has been committed.”

  1. I am unable to see how these observations support the appellant’s submissions.  That and the earlier cases concerned a question of whether where an accusation was made with a threatened dissemination, it was relevant that there was reasonable or probable cause for making the accusation.  That question does not address the issue of whether the threat is encompassed within the making of the demand.  To the extent that that issue is touched upon, the second element of the offence identified by his Lordship suggests that the threatening of menaces, where it occurs, is a constituent part of the act of demanding property or a valuable thing.
  2. Counsel for the appellant also placed reliance upon the decision of the Court of Appeal (UK) in Hardie and Lane Ltd v Chilton & Ors[27] and the decision of the House of Lords in Thorne v Motor Trade Association.[28]  Both were civil cases concerning trade organisations who, under their respective rules, maintained a “Stop List” on which it would record the names of traders who infringed its rule against retail selling below list price.  In each case a question arose as to whether s 29(1) was transgressed when the association offered not to list if the infringing trader paid it money.
  3. In Hardie and Lane, it was held that there was no infringement.  Speaking of s 29(1), Scrutton LJ observed:[29]

“On this I would remark that the language of the statute shows that you may demand a valuable thing with menaces with reasonable and probable cause without committing any offence; and the most obvious reasonable and probable cause appears to me to be where you have a legal right to do the thing which you threaten to do, assuming that the obtaining of the valuable thing thereby does not involve any criminal act, as an agreement not to prosecute or not to inform the authorities of a felony.”

  1. These observations imply that where a threat is made, the application of s 29(1) requires a consideration of whether there was reasonable and probable cause for making it.  His Lordship’s point was that where there was a legal right to do the threatened act, there may well be a reasonable and probable cause for making the threat.  He was at pains to distinguish circumstances where a criminal act was threatened.
  2. In Thorne, the House of Lords held that Hardie and Lane had been correctly decided.  Lord Atkin pointed out that what Scrutton LJ had said in that case was not to be understood as meaning that if the threatened act had a lawful basis, it was not a menace.  Lord Atkin said:[30]

“The gravamen of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that the threat is to do something a person is entitled to do either causes the threat not to be a “menace” within the Act or in itself provides a reasonable or probable cause for the demand.”

Relevantly, this statement indicates that the scope of application of the phrase “reasonable or probable cause” in s 29(1) extended to the threat.

  1. I mention that Lord Atkin also referred to Dymond.  As to it, his Lordship said:[31]

“But language was used in the judgment which seemed to indicate that even if the mistake were as to a fact which would have constituted a reasonable cause such a mistake would be irrelevant; in other words there must be in fact a cause not merely a genuine belief in a cause.  This seems to me incautiously expressed: and I do not think that doubt should exist upon a well established proposition in criminal law that normally a genuine belief in the existence of facts as apart from law, which if they existed would constitute a defence, is itself a sufficient defence.”

  1. In summary, for these reasons, I reject the appellant’s submission that the English cases support the interpretation for which he contends.  Nor is it supported by academic writing.  In 1954, Professor Glanville Williams discussed the judicial interpretation of s 29(1) and, referring to the decision in Dymond, observed:[32]

“The conduct of the accused taken as a whole may be unreasonable even though he reasonably believed (and perhaps rightly believed) that he had a right to the money or other property.  In the instant case the accused may have had a right to damages for assault, but when she tried to obtain the money by threats of prosecution and public accusation she violated the criminal law.  It is not only the demand but the threat that must be reasonable; it must be reasonable to make that kind of threat to get that amount of money.  In particular, it is not reasonable to try to obtain money by threatening to accuse the other of an immoral act, or to prosecute him for a crime.” (emphasis supplied)

  1. A little earlier in the article, Professor Williams had said:[33]

“To begin with section 29(1)(i), it seems simplest, before examining the authorities, to state the net effect of the interpretation now generally accepted.  The position is that it is not necessarily a defence to say that what was being demanded was in fact due, or that the threat made was one that could in itself be legally carried out.

  1. To take an example of the first, suppose that P owes D £5.  D writes to P, saying “Pay me the £5 or I will knock you down.”  Here D is justified in making the demand but not justified in making the threat, since assault is a tort and a crime and to threaten an assault is not a proper mode of collecting debts.  D is therefore guilty of an offence under section 29(1)(i).  It will be seen that in this example the demand (i.e., the demand of the money) is not merely lawful in the sense that it is not in itself a wrong, but is a demand that could be legally enforced; but the conduct threatened, if carried out, would be a legal wrong, namely, the wrong of assault.  Together, the demand and the threat constitute the crime of blackmail.  The conclusion would be precisely the same if no money was owing and D’s intention was merely to extort money from P under pressure.  The essence of the offence in this type of case is the threat of the unlawful act as a means of procuring money (or other property); it does not matter whether the money is actually owing or not. …” (emphasis supplied)
  1. As to the Queensland cases, the interpretative question with which this Court is now concerned did not arise in Jessen.  In Kelly, Baker and Perry, the Court confirmed, as is uncontroversial, that the test to be met in applying the phrase “reasonable or probable cause” in s 415 as then enacted, was an objective one.  Dowsett J commented, by way of obiter, that “it is to the justification of such a claim that the defence of reasonable or probable cause relates rather than the appropriateness of offering violence to enforce a civil debt”.[34]
  2. His Honour’s characterisation of reasonable or probable cause as a defence, may be doubted.  Plainly, he was not offering a considered opinion on the correct interpretation of s 415.  His remarks were evidently motivated by a concern that the provision not be seen as permitting juries to condone self-help by way of threatened violence to recover a debt or property under the exception of reasonable or probable cause.  Had his Honour been referred to the English decisions and to Professor Williams’ article, he may have regarded it as unnecessary to make them.
  3. In Campbell, the Court (Fitzgerald P, Davies and McPherson JJA) had been referred to both the English cases and the article.  In their reasons for judgment, their Honours observed:[35]

“While the issue of “reasonable and probable cause” is not without potential difficulty,[36] the problems which could arise need not be discussed in detail on this occasion.  It is not obvious that the word “probable” adds to the phrase.[37]  Further, it seems that there cannot be reasonable and probable cause to make a demand “containing threats of injury or detriment” which would involve the commission of a criminal offence.[38]  And at common law, an honest belief by an accused that the demand was made with reasonable and probable cause might not suffice.[39]  If s. 24 of the Code introduces a subjective element into an alleged offence against sub-s 415(1)(a), a submission which was not directly advanced either at trial or in this Court and need not be decided on this occasion, the belief must not only be honest but reasonable; the requirements of reasonable and probable cause and honest and reasonable belief therefor both involve an objective standard, viz., reasonableness.”

  1. Significantly, their Honours spoke of a demand containing threats.  That indicates that they regarded the making of a threat of injury or detriment as being a part of the making of the demand.  Therefore, the threat was to be considered in determining whether the demand was made without reasonable or probable cause.
  2. In Lacey & Lacey, the jury had been directed that there cannot be a reasonable or probable cause to make a demand containing threats of injury or detriment which would involve the commission of a criminal offence.  The direction was not criticised on appeal.  Fraser JA (with whom de Jersey CJ and McMurdo J agreed) said of the directions given on s 415:[40]

“Those notes conveyed the requirements that each defendant intended to extort a sum of money and orally demanded the sum of money in a way which threatened injury to Matthews by both defendants if the demand was not fulfilled.”

This statement assimilated the threat with the making of the demand.

  1. For these reasons, I consider that the interpretation adopted by the learned trial judge is correct and did not involve an error of law.  It accords better with the ordinary meaning of the language in which s 415(1) is enacted than does the appellant’s interpretation.  It has support in judicial interpretation of the analogous statutory provision in the United Kingdom and has been preferred in decisions of this Court.

The approach to finding of no reasonable cause

  1. In the course of argument of the appeal, a question arose as to how, if at all, the provisions of s 24 of the Code as to honest and reasonable, but mistaken, belief of fact might interact with the requirement in s 415(1) for the absence of reasonable cause for making a demand.  Reference was made to the decision of the High Court of Australia in Fingleton v The Queen.[41]  Supplementary submissions filed by the parties addressed that decision.
  2. The case of Fingleton concerned a conviction by a jury of an offence against s 119B of the Code (retaliation against a judicial officer).  An issue which McHugh J alone considered in any detail was whether the jury had been properly instructed as to the meaning of “reasonable cause”.  His Honour found fault with the directions given in that they invited the jury to consider the “reasonable cause” issue without taking into consideration the subjective beliefs of the appellant in relation to working with her colleague.  He stated that the question for the jury was whether the sending of the email in question by a person holding the appellant’s beliefs constituted “reasonable cause”.[42]  That issue required a close examination of the relationship between the appellant and her colleague, the recipient of the email, in order to evaluate whether the beliefs constituted reasonable cause.
  3. In his supplementary submissions, the appellant contended that the learned trial judge erred in his approach.  It was submitted that he reasoned that because there was no debt proved, that was determinative of the issue of reasonable cause, subject to the operation of s 24.[43]  To have analysed the honesty and reasonableness of a belief on the appellant’s part that the complainant owed Masri $50,000.00 within the framework of s 24 was an error.  It was submitted that consistently with the observations of McHugh J, his Honour should have focussed upon whether a subjective belief on the appellant’s part that there was a debt was a reasonable basis for demanding its repayment.[44]
  4. I approach this submission mindful that at the hearing of the appeal, counsel for the appellant, who was defence counsel at trial, informed the Court that the parties conducted the trial on the basis that s 24 “could operate on the element of … reasonable cause”.[45]  It appears to have been common ground that such an analysis was “a cleaner way” of dealing with the issue.[46]  As counsel put it, his Honour analysed the case in terms of s 24 “at our invitation”.[47]
  5. That his Honour would accept the invitation was anticipated in the following paragraphs in his reasons:

[14] In essence, the defence case was not that there was such a debt but that:

  1. there was (the prosecution could not exclude beyond reasonable doubt) reasonable cause for the demand because the accused believed the complainant had stolen from Masri and owed him $50,000 or more and was authorised to demand payment; alternatively, the accused honestly and reasonably believed there was a debt and so, in either case, there was reasonable cause for the accused to make the demand, even if made with threats;
  1. no threats were made as alleged.

[15] In light of the cases considered below, the provisions of Chapter 5Criminal Responsibility of the Code and in terms of the Code s. 415, I consider the alternative formulation of the defence case with respect to reasonable cause is the more appropriate.  That is, if, viewed objectively, there is no reasonable cause for the demand because there is no admissible evidence of the alleged debt, the accused’s belief becomes relevant by way of Code s. 24.”

The defence case as summarized proposed that threats, even if made, were irrelevant to reasonable cause.

  1. His Honour then considered the relevance of threats to reasonable cause and concluded that they were relevant.[48]  Next, consistently with the approach indicated, he posed the question “was there (no) reasonable cause based on belief in a debt?”  In answering that broad question, he addressed three issues.  The first was to question whether there was a debt.  His answer to it was that the existence of a debt was not proved.  He said:

[57]Masri was not a witness at the trial.  There was no evidence to contradict the complainant’s evidence, consistent with his police statement, that any amount he took in stock was far outweighed by unpaid salary.  The accused’s evidence that Masri told him of a debt and that he believed Masri, is not evidence in proof of the existence of a debt.  Subject to the claim of an honest and reasonable but mistaken belief, there is, therefore, no evidence of reasonable cause for the demand.”

  1. His Honour then moved to consider s 24.  He noted that, for the provision to avail the appellant, his belief in the existence of the debt would have had to have been both honest and reasonable.[49]  The learned trial judge did not make any express finding as to the second issue, the honesty of such a belief.[50]  However, with regard to the third issue, he did find that such a belief was not held on reasonable grounds.[51]  The prosecution had, on that account, excluded the operation of s 24.[52]
  2. At that point, his Honour returned to the broad question that he had posed.  As to it, he said:[53]

“In the result, leaving aside the question of threats made, I am satisfied beyond reasonable doubt that there was no reasonable cause for the demand made by the accused that the complainant pay $50,000 to him for Masri.”

  1. This finding was the basis for the first route that his Honour identified at [165] of the reasons for a conclusion that the demand was made without reasonable cause.  However, it played no part in the second route set out at [166] which was posited on the existence of an honest and reasonable but mistaken belief in the existence of the debt but, unlike the first, took into consideration the threats found to have been made in determining that the demand was made without reasonable cause.
  2. In these circumstances, no miscarriage of justice could have arisen from his Honour’s having made findings as to the honesty and reasonableness of a belief on the appellant’s part as to the indebtedness within a context of s 24.  The parties had submitted that he do so.  Furthermore, those findings could not have impacted upon the second route because it assumed an honest and reasonable but mistaken belief as to indebtedness.
  3. I would add that it was not necessary that his Honour have reached conclusions as to honesty and reasonableness of a belief as to indebtedness within a context of s 24.  It was, of course, open to him to have done so outside that context.  However, the chosen context, of itself, did not, in my view, invalidate or impair the findings with respect to those matters.
  4. For these reasons, I conclude that Ground 1 has not been established.

Ground 2

  1. This ground of appeal contends that the learned trial judge erred in finding that the appellant’s honest belief with respect to indebtedness was not held on reasonable grounds.  Were this ground to succeed, it would very much put in question the first route to concluding that the demand was made without reasonable cause.  However, it would not impact adversely upon the second route given the assumption made in it.
  2. In advancing this ground, the appellant submitted, first, that the learned trial judge applied a wrong test and, second that it was not reasonably open to him to conclude that the appellant’s belief, if honest, was not based on reasonable grounds.
  3. As to the first submission, the appellant cited the decision of this Court in R v Mrzljak[54] to the effect that whether there are “reasonable grounds” is not assessed by reference to whether a reasonable person would have held the belief but rather whether the belief the accused held in the circumstances as he perceived them to be, was based on reasonable grounds.
  4. It is, I think, clear that the learned trial judge, who had been counsel for the appellant in Mrzljak, understood that this was the test to be applied.  At [60] of his reasons, his Honour said:

“The mistake must be honest and reasonable. To be reasonable, the belief must be held by the accused, in his particular circumstances, on reasonable grounds.”

  1. In regard to the second submission, at trial, the appellant testified to information which, he said, provided the basis for his belief that the complainant owed Mr Masri $50,000.00.  It consisted of the following information:[55]

“a. Mr Masri told him that Mr Pippos had stolen from him by taking money from the tills and by taking stock and that there was footage of Mr Pippos taking money from the till.[56]

b. Mr Masri told him that the amount was “over $70 grand at least”.[57]

c. The (appellants) brother and two other friends who worked in the shop had told him earlier that there were “funny dealings” with the till involving Mr Pippos and that he would “take all this fruit and veg out the back”.[58]

d. This information was consistent with information that he had earlier received from his brothers who worked in the shop to the effect that Mr Pippos offered “extra wages” to young female staff members for sexual favours.[59]

  1. It was submitted[60] that the only basis which his Honour gave for not considering those matters to be reasonable grounds was that none of the informers was a witness at trial and that Mr Masri’s demeanour as revealed in recordings listened to by his Honour ranged “from sounding reasonably normal to incomprehensibly hysterical”.[61]
  2. The appellant argued that the absence of evidence from the informers made no difference because the evidence about information was not led to prove the truth of its contents.[62]  Further, the information was fortified by the complainant’s express desire to apologise to Mr Masri.
  3. The appellant’s ultimate submission was that it was not reasonably open for the learned trial judge to have concluded that the appellant’s honest belief was not based on reasonable grounds.  I am not persuaded that that was so for the following reasons.
  4. There was no explicit acknowledgment of any debt by the complainant.  The desire expressed by the complainant to meet Mr Masri in person was relevant to an assessment of whether what was said in conversation would have provided the complainant with reasonable grounds for a belief that a debt of $50,000.00 was owed.
  5. It was open to the learned trial judge to have taken into account Mr Masri’s demeanour as sometimes “incomprehensibly hysterical” in his assessment of whether the appellant could or ought to have regarded him as a reliable source of information.
  6. Further, as the respondent has pointed out,[63] the manner in which the appellant arranged to meet, and first met, the complainant supported the finding now challenged.  The appellant did not at first identify himself and he gave the complainant the impression that he was interested in buying the café.[64]  As his Honour observed, the approach was carefully planned:[65]

“…the complainant was met by a stranger, who, without identifying himself, obtained details of the complainant’s financial circumstances then made very personal enquiries followed by the allegation of a very substantial debt to an unnamed person and requiring an immediate response.”[66]

Such an approach was incompatible with an honest and reasonable belief on the appellant’s part that the complainant owed Mr Masri $50,000.00.

  1. In my view, this ground of appeal has not been made out.  Even if it had been, I would accept the respondent’s further submission that no miscarriage of justice would have resulted.[67]  An honest and reasonable belief that a debt was owed and that the appellant was authorised to pursue collection of it could not have provided reasonable cause for making a demand with the threats which were found to have been made, including the threat that the complainant’s legs would be broken if he did not pay.

Ground 3

  1. On its face, this ground of appeal implies that the learned trial judge misdirected himself concerning the onus and standard of proof in circumstances where an accused has testified.  However, the following direction which his Honour set out early in his reasons, was evidently correct:[68]

“As this is a criminal trial the proper approach is that the prosecution case depends on acceptance of the complainant’s evidence despite the sworn evidence of the accused.  So, even should I reject the accused’s account that would not lead me automatically to conviction but would merely require consideration of whether the prosecution case proves guilt beyond reasonable doubt.”

  1. As developed in written and oral submissions, this ground was focussed upon the finding by his Honour that the appellant threatened to break the complainant’s legs.[69]  It was submitted that, apart from recounting the complainant’s evidence on the topic,[70] his Honour gave no reasons for accepting the complainant’s evidence; nor did he explain why the appellant’s denial of it did not raise a reasonable doubt.  It was suggested that his Honour merely said that he accepted the complainant’s evidence on this point despite the accused’s sworn denial.[71]
  2. The appellant argued that the approach taken by his Honour to the sworn denial was infected by the same species of error that the High Court had identified in Douglass v The Queen.[72]  In that case a trial judge sitting alone said no more than that he bore in mind that the accused had given sworn evidence denying the allegations, yet he was satisfied of their truth beyond reasonable doubt.  It was held by the Court[73] that there was insufficiency of reasons constituting an error of law.
  3. In oral submissions, counsel for the appellant here conceded that the learned trial judge “unquestionably went further” than the trial judge in Douglass had.[74]  That is so.  A perusal of the reasons for judgment reveals that his Honour undertook an examination of the evidence concerning the conversation at the café as it involved threats.
  4. The learned trial judge referred to the complainant’s evidence that the appellant told him that Mr Masri did not want to talk to him and persisted in asking him how he would pay the debt.  His Honour explained that he accepted the evidence because of its consistency with recorded statements made by the appellant.[75]  He continued:[76]

[103]At some point the accused told the complainant that although the debt was $50,000, the creditor would accept $40,000 in immediate cash.  The complainant told the accused he might be able to come up with $10,000.  The accused doubted that Masri would accept that and enquired how the complainant would pay off the rest, asking whether he could pay $2,000 a week.  The complainant offered $100 a week.  The accused said, “Don’t muck me around, because I’m fair dinkum”.[77]  The meeting ended with the arrangement that the complainant would pay $10,000 immediately and thereafter $1,000 per week.  His understanding was that if he missed a payment the debt would go back up to $50,000 and start again.  His evidence was, “If I didn’t pay, he’d come after me and break my legs.”[78]

[104]The accused confirmed that he told the complainant that an immediate payment of $40,000 would clear the debt.  His account of the final arrangement was, like the complainant’s that $10,000 would be paid and then for the next 40 weeks he would pay $1,000 a week.  The accused said in evidence, “I said to him if you miss payments, if you don’t pay on time, it’s always going to remain at $50,000.”

  1. His Honour then referred to evidence concerning the threat to enter and take over the shop.
  2. The learned trial judge stated his conclusions with respect to the alleged threats in the following paragraphs:

[112]Given the matters discussed and all of the circumstances, I accept the complainant’s evidence that he was frightened as a result of the meeting.  I accept that he feared for his family and feared “they [were] just going to walk in and cause a ruckus, you know, hurt my family, hurt me, I – as I was petrified.”[79]

[113]The circumstances of the discussion – the demand – were designed to intimidate the complainant.  The accused admitted insisting on the complainant being honest with him.  The repeated exhortations, from a stranger who never gave his name, to be honest, to fully disclose his financial situation – with the suggestion that the accused would speak to the complainant’s daughter as a sanction against the complainant should he not be straightforward and honest with the accused – were all designed to threaten the complainant.

[114]If the threat to speak to the daughter were the only threat relied on by the prosecution the case might not succeed.  It is not clear, in terms of s. 415, with what detriment the complainant was being threatened.

[115]I find the accused did threaten to come in with associates and take over the café, even if temporarily.  This was a clear threat of a detriment.

[116]The making of these threats, taken with all of the circumstances of the conversation, make more likely the truthfulness of the complainant’s evidence to the effect that he was threatened with his legs being broken.  His evidence included: “He said if I miss a payment, it goes back to $50,000.  If you don’t pay, then I’ll break your legs.”[80]  The complainant agreed that this was said at the end of their conversation.

[117]The accused denied making that threat but his evidence included, as I have already noted: “I said to him if you miss payments, if you don’t pay on time, it’s always going to remain at $50,000.[81]

[118]I accept the complainant’s evidence on this point despite the accused’s sworn denial.”

  1. Later in his reasons.  His Honour referred to the appellant’s “facility with threatening language” as he observed it in a recorded telephone conversation between Conias and the appellant.  That, his Honour thought, added, if only marginally, to the likelihood that the alleged threatened statements were made at the meeting on 12 March 2014.[82]
  2. In my view, the learned trial judge gave detailed and sufficient reasons for his finding that the threat that the appellant’s legs would be broken was made.  His Honour evidently rejected the appellant’s sworn denial that it was made.  He did so after assessing the credibility of the denial against the other evidence concerning the conversation and with the benefit of having observed the appellant testify.
  3. For these reasons, this ground of appeal cannot succeed.

Ground 4

  1. In oral submissions, counsel for the appellant advised the Court that unless two propositions were made good by the appellant, this ground would not be established.  One proposition was that it was not reasonably open for the learned trial judge to have rejected that the appellant’s belief in the existence of the debt and his authority to collect it was based on reasonable grounds.  The other was that it was not reasonably open to his Honour to have rejected the appellant’s denial of the threat to break the complainant’s legs.[83]  It is appropriate then to adopt these two propositions as the frame of reference for analysis of this ground of appeal.
  2. As to the second proposition, in my consideration of Ground 3, I refer to the evidence reviewed by his Honour with respect to this threat and his analysis of it.  For the reasons then given, in my view, it was reasonably open for his Honour to have rejected the appellant’s denial that he made this threat.
  3. As to the first proposition, I refer to my conclusion arrived at in the discussion of Ground 2 that it was reasonable open to conclude that the appellant’s belief as to indebtedness was not based on reasonable grounds.
  4. It would have been sufficient for this ground of appeal to fail that either one of the propositions not be made out.  In my view, neither of them has been made out.  This ground of appeal therefore cannot succeed.

Disposition of appeal

  1. As no ground of appeal has succeeded, the appeal against conviction must be dismissed.

Sentence application

  1. At the time when the appellant was sentenced, he was already serving sentences of imprisonment that were imposed following upon his pleas of guilty to Commonwealth offences of preparing for incursion into a foreign state and of giving money for such incursions.  For the principal offence, he had been sentenced in the Supreme Court of Queensland on 2 November 2016 to four and a half years’ imprisonment with a non-parole period of three years.  Allowing for declared time, his eligibility for parole under that sentence arose on 10 September 2017.
  2. That sentence would have expired on or about 10 March 2019.  The sentence imposed for the subject offending will expire on or about 22 February 2020.  In the result, the two sentences combined are for a period of about five years and five and a half months.  The parole eligibility date set by the learned trial judge, 10 May 2018, is eight months after the parole eligibility date set on 2 November 2016.
  3. The appellant has drawn attention to the fact that the period of the combined sentences that he must serve before he becomes eligible for parole, namely, three years and eight months, approaches 70 per cent of the total period of the combined sentences, some five years and five and a half months.  The appellant contends that the sentence imposed by the learned trial judge is manifestly excessive in that it has resulted in his having to serve approximately 70 per cent of the combined sentences in order to become eligible for parole.  Further, it is submitted that his Honour erred by failing to comply with the decision of this Court in R v Kitson[84] it not explaining why he was imposing a sentence with that result.
  4. The appellant does not argue, nor could he do so on any sound foundation, that a sentence of two years and nine months of which he must serve eight months in order to be eligible for parole, is manifestly excessive for the extortion offence.
  5. In the present case, the result that the appellant is required to serve three years and eight months of the combined sentences for parole eligibility is a function of the interaction between the sentence for the extortion offending and the sentence imposed earlier for the Commonwealth offending.  It was not unreasonable for his Honour to require that the appellant serve some period of the period of imprisonment that he was imposing before the appellant would become eligible for parole.  He was not constrained by any requirement that the percentage of the Commonwealth sentence to be served for parole eligibility under it be maintained or not exceeded, when that sentence was combined with the sentence he was about to impose.  I am unpersuaded that the sentence imposed by his Honour was manifestly excessive on that account.
  6. Further, the decision in Kitson did not require any particular explanation by his Honour.  In the first place, that decision addressed a circumstance where, unlike here, the result that the applicant was required to serve three-quarters of the sentence in custody for parole eligibility arose from the decision of the sentencing judge alone.  Secondly, here, the result that the appellant would have to serve approximately 70 per cent was obvious from the interaction of the separately imposed sentences under separate regimes.  No explanation was necessary.

Disposition of application

  1. The appellant has not established a viable ground of appeal against sentence.  His application for leave to appeal should therefore be refused.

Orders

  1. I would propose the following orders:
    1. Appeal dismissed.
    2. Application for leave to appeal against sentence refused.
  2. McMURDO JA:  I agree with the orders proposed by Gotterson JA and I am in substantial agreement with his reasons.  My judgment deals only with the first and second grounds for the appeal against conviction.
  3. It is convenient to go first to the second ground, which is that the trial judge erred in concluding that a belief by the appellant, that the money which was demanded was owing by the complainant, was not a reasonable belief.  There is no challenge to the judge’s finding that, in truth, what was demanded was not owing.  But by the operation of s 24 of the Criminal Code (Qld), the appellant’s criminal responsibility was to be considered upon the premise that the money demanded was owing, unless the prosecution could exclude the possibility that the appellant acted under an honest and reasonable mistake about that matter.  The judge found that he could not exclude the possibility that there was an honest belief.[85]  The basis for such a belief was what the appellant said he had been told by Mr Masri, two friends and his brother.  None of those persons was a witness in the trial, but his Honour concluded that a belief based upon information from them could not have been a reasonable belief.
  4. At one point in his judgment, the trial judge said that he was “satisfied beyond reasonable doubt that any such belief was not reasonable in all the circumstances.”[86]  Later in the judgment, he said that he was “satisfied the prosecution has excluded the operation of s 24 because … any such belief was not held on reasonable grounds.”[87]  The appellant’s argument says that those statements reveal a legal error in the judge’s consideration of the question.  It is said that the judge reasoned inconsistently with the judgments of Williams JA and Holmes J (as she then was) in R v Mrzljak,[88] in that he considered whether a reasonable person would have held this belief, instead of considering whether the belief held by the appellant, in the circumstances as he perceived them to be, was based on reasonable grounds.  In Mrzljak, Williams JA said:[89]

“[T]he critical focus is on the offender rather than a theoretical reasonable person.  It is the information available to the offender which must determine whether the belief was honest and also was reasonable.  That must mean that factors such as intellectual impairment, psychiatric problems and language difficulties are relevant considerations though none would be necessarily decisive.”

In the same case, Holmes J said:[90]

“What must be considered … is the reasonableness of an accused’s belief based on the circumstances as he perceived them to be.”

In Mrzljak, the appellant suffered from an intellectual impairment which, according to evidence which emerged after his trial, would have affected his ability to discern that the complainant in that case was not consenting to sexual intercourse.  The difference between that appellant and the so-called reasonable man was marked and significant.  The same cannot be said of the present appellant.  The passages from the judge’s reasons do not reveal that he considered this question inconsistently with the reasoning in Mrzljak.

  1. But there is a second challenge to this finding which, in my view, should be accepted.  It is argued that it was not open to the judge to conclude that a mistaken belief by the appellant was an unreasonable one.  The appellant’s evidence was that the basis of his belief was information from Mr Masri that the complainant had stolen from him by taking money from the tills and by taking stock.  In particular, Mr Masri had told him that there was footage of the complainant taking money from the till and that the amount involved was “over 70 grand at least”.  The appellant’s brother and two friends who worked in this business had told the appellant that there were “funny dealings” with the till involving the complainant and that he would “take all this fruit and veg out the back”.  The prosecutor did not challenge the fact that the appellant received this information. The information was relatively general and did not provide irrefutable proof that what was demanded was no more than what the complainant had stolen.  But that did not make it unreasonable, in the circumstances as the appellant could have perceived them, to believe the truth of Mr Masri’s claims.
  2. The trial judge found that Mr Masri was an unreliable informant, upon the basis of his impression of Mr Masri’s “demeanour”, as he perceived that to be from recordings of telephone conversations between the appellant and Mr Masri.  The judge said that Mr Masri’s demeanour “ranges from sounding reasonably normal to incomprehensibly hysterical.”  In my respectful opinion, this was an insufficient basis for a conclusion that the appellant’s belief was not a reasonable one.  The appellant’s belief was in the circumstance of having known Mr Masri for most of his life.  He said that he and Mr Masri were family friends, having grown up and gone to school together.  There was a period of time when he did not see Mr Masri for some years after school, but their friendship had resumed years before these events occurred.  The trial judge, of course, had never seen Mr Masri.  An impression from some, but it seems not all, of the recordings of the appellant’s conversations with Mr Masri could not have provided a basis for concluding, on the requisite standard of proof, that from the appellant’s perspective, having known Mr Masri so well, it was unreasonable for him to believe that Mr Masri’s claims were correct.
  3. Consequently, by the operation of s 24, the appellant’s criminal responsibility had to be considered upon the premise that Mr Masri had a meritorious claim to the money which was demanded, and the interpretation of s 415 of the Code, which is the subject of the first ground of appeal, was (or should have been) critical to the outcome.
  4. The appellant’s argument is that a valid claim to the payment of the money which was demanded would compel the conclusion that there was a “reasonable cause” for the relevant conduct of the appellant, so that he did not commit an offence under s 415.
  5. Section 415(1) provides:

“(1) A person (the demander) who, without reasonable cause, makes a demand—

  1. with intent to—
  1. gain a benefit for any person (whether or not the demander); or
  1. cause a detriment to any person other than the demander; and
  1. with a threat to cause a detriment to any person other than the demander;

commits a crime.”

  1. The appellant argues that the phrase “without reasonable cause” qualifies only the words “makes a demand”.  It is said that what must be considered is the justification for the demand, without regard to the justification or otherwise for the threat.  The argument cites, in particular, what was said by Lord Atkin in Thorne v Motor Trade Association.[91]  Lord Atkin was there discussing Hardie & Lane v Chilton,[92] where, Lord Atkin said, Scrutton LJ had “appeared to indicate that if a man merely threatened to do that which he had a right to do, the threat could not be a menace”.  What was being considered was s 29(1) of the Larceny Act 1916 (UK), which created an offence of demanding money with menaces without reasonable or probable cause.  It was in disagreeing with Scrutton LJ that Lord Atkin said:[93]

“The ordinary blackmailer normally threatens to do what he has a perfect right to do-namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed he has not only the right but also the duty to make the disclosure, as of a felony, to the competent authorities. What he has to justify is not the threat, but the demand of money. The gravamen of the charge is the demand without reasonable or probable cause : and I cannot think that the mere fact that the threat is to do something a person is entitled to do either causes the threat not to be a ‘menace’ within the Act or in itself provides a reasonable or probable cause for the demand.”

In Thorne, the entitlement to do that which was threatened was, in the circumstances of that case, said to be relevant to, although not determinative of, the question of whether there was a reasonable cause for the demand.  The case might be thought to illustrate, for a similar although not identical provision such as s 415, the potential for the justification for the threat to be relevant to the justification for the demand.  The speeches in Thorne consistently referred to the question as being whether there was a reasonable and probable cause for the demand which was made in that case.  But the House was not there concerned with a question of the present kind, namely whether a justified demand made with an unjustified threat could result in the commission of the crime.

  1. In any event, it is the words of this provision of the Code which must be considered, without reference to pre-existing law except where the Code contains provisions of doubtful import or uses language which has acquired a technical meaning.[94]
  2. The elements of s 415(1) are:
    1. the making of a demand;
    2. the making of a threat, with that demand, to cause a detriment;
    3. an intent of the demander to gain a benefit or cause a detriment; and
    4. the absence of reasonable cause.

The structure of s 415(1) could suggest that the phrase “without reasonable cause” applies to the making of the demand.  But it also permits the application of that phrase to all of the conduct which is prescribed.  In my conclusion, it is in that second way that the provision should be read.

  1. In what might be considered to be the more typical cases of blackmail, there is no justification for the demand, in that there is no valid claim upon which the demand could be based.  An unjustified demand is made for money, or some other benefit, with a threat to provide information about the victim to someone else and to the victim’s detriment.  In such cases, the present question of the effect of s 415(1) is irrelevant.  The present case is different, because, of itself, (possibly) the demand was made with reasonable cause, according to the facts as the judge should have found them.  The appellant’s argument is that s 415(1) was not intended to extend to cases of the present kind, where a debtor (or his agent) seeks to recover what he considers to be owing by unjustifiable acts of self-help, moreover threats of serious personal violence.
  2. That such conduct should be a criminal offence is unremarkable.  Acknowledging that to be so, the appellant argues that the conduct is effectively proscribed by other provisions of the Code.  Section 359(1) provides that a crime is committed where a person threatens to cause detriment to another, with intent to prevent or hinder someone from doing any act which that person is lawfully entitled to do, or to compel that person to do any act which he or she is lawfully entitled to abstain from doing.  On the facts of the present case, it might be said that the complainant was lawfully entitled to abstain from paying Mr Masri and that the appellant threatened to cause a detriment, intending him to pay Mr Masri.  But on the facts as the appellant might have honestly and reasonably believed them to be, the complainant was bound to pay Mr Masri.  Therefore, upon the facts here, the element of intention would not be satisfied.  Section 414 of the Code provides that a crime is committed by a person who, with intent to steal anything, demands it from any person with threats of an injury or detriment to be caused to that person if the demand is not complied with.  But again upon the facts of this case, the basis for the application of that provision is not apparent, because the element of an intention to steal would not be satisfied.
  3. This appeal is the first case in which this Court has had to consider the present question.  It was not argued in R v Lacey & Lacey[95] although, as Gotterson JA notes, the jury had been directed in that case that there could not be a reasonable or probable cause to make a demand where what was threatened was personal violence.  The arguments referred to three other cases in this Court which, like Lacey & Lacey, arose under the previous s 415 before the present provision was substituted in 2008.
  4. The first of those cases is R v Kelly, Baker and Perry,[96] where the appellants had engaged in self-help to obtain what they, or some of them, claimed was a reparation due from the complainant, arising out of a previous business dealing.  They abducted the complainant by force, detained him for some time and threatened him, using weapons.  He was tied up and was subjected to physical assaults.  They demanded that he transfer to one or more of them his commercial interest in certain mining ventures.  The terms of what was then s 415 provided that a crime was committed by:

“Any person who with intent to extort or gain any property or benefit ... orally demands without reasonable or probable cause … any property or benefit … with threats of injury or detriment of any kind … if the demand is not complied with”.

The trial judge directed the jury that:

“The question that arises is, are the demands which accompanied the threat here shown by the Crown to be without reasonable or probable cause by the situation which obtains?  The test is what a reasonable right thinking man would do in those circumstances.”

It was argued that this was a misdirection, because the judge’s reference to a “right thinking man” was a distraction from what the jury was required to consider, namely whether there was reasonable and probable cause.  The question in the present appeal was not raised by that argument.  Dowsett J began his ex tempore judgment by doubting whether “the question of reasonable and probable cause was really raised on the defence case.”  He continued: “[t]he verdict of the jury is consistent only with the finding that the appellant was a party to the offering of physical violence to the complainant for the purpose of obtaining property or causing him to deal with property in a particular way.”  As I read his Honour’s remarks, they were to the effect that the threats of serious physical violence ought to have resulted in there being no doubt, on the part of the jury, about the absence of a reasonable or probable cause.  These were remarks made as obiter dicta and about a different provision from that presently in question.  But to the extent that they are relevant here, they are adverse to the appellant’s argument.

  1. Another of those cases is R v Robertson.[97]  That was an appeal against a conviction of assault occasioning bodily harm.  The appellant had been tried also on counts of entering a dwelling house with an intent to commit an indictable offence and extortion, the latter under the previous s 415.  She was acquitted of those counts and it was argued that there was an inconsistency between those verdicts and her conviction of assault.  The judgment of the Court (Fitzgerald P, Pincus and Davies JJA) said this about the extortion charge:

“It was common ground before this Court that the explanation for the acquittal on the charge of extortion is the favourable direction on this count given by the learned trial judge to the jury.  His Honour said if the jury found the appellant to have had a reasonable or probable cause for making the demand, the offence of extortion could not be made out, notwithstanding that a threat or force was used to make the demand.  The respondent submitted that this was a direction which was unduly favourable to the appellant.  It is not necessary to resolve that question.”

Again, the present question (or a similar one under the predecessor of s 415) was not decided.  But the Court’s description of the relevant direction to the jury as “favourable” does not assist the appellant’s argument here.

  1. In the last of these cases, R v Campbell,[98] the appellant had been convicted of an offence under the then s 415, by writing to the complainant demanding money for the return of firearms which had been stolen from the complainant.  The complainant’s family was threatened by the appellant’s letter of demand.  The trial judge declined to direct the jury, as the prosecutor had sought, that the issue was not merely whether the demand for the money was reasonable, but that all of the circumstances, including the threats accompanying the demand, had to be considered in determining whether it was proved that the appellant had acted without reasonable and probable cause.  The Court (Fitzgerald P, Davies and McPherson JJA) said:[99]

“While the issue of “reasonable and probable cause” is not without potential difficulty, the problems which could arise need not be discussed in detail on this occasion.  It is not obvious that the word “probable” adds to the phrase.  Further, it seems that there cannot be reasonable and probable cause to make a demand “containing threats of injury or detriment” which would involve the commission of a criminal offence.”

The Court added:[100]

“Quite possibly, more complex directions and fuller explanations than were contained in the trial judge’s summing-up in this case will sometimes be required.  Here, however, it was probably prudent for her Honour not to complicate the straight forward issues which arose for decision.”

As the Court then discussed, on the facts of that case, there was no reasonable cause for the demand which was made in that case.  The present question did not have to be considered.  The Court’s comment, that there could not be reasonable cause to make a demand containing a threat which, if carried out, would involve the commission of a criminal offence, does not support the present appellant’s argument.  The Court there cited Hardie & Lane Ltd v Chilton[101] for that observation.  However, the House of Lords was critical of that judgment in some respects in Thorne v Motor Trade Association.  In my respectful opinion, that observation in Campbell may have been too broadly stated, by referring to a threat involving any offence, however minor.  The question under s 415, in each case, will be whether the defendant has acted without reasonable cause, in making the demand with the threat.

  1. For these reasons, the trial judge was correct to consider the nature of the threats which were made by the appellant, in assessing whether there was an absence of reasonable cause in this case.  Once the threats of personal violence and of the wrongful appropriation of the complainant’s business are considered, the absence of reasonable cause was proved.
  2. I agree with what Gotterson JA has written about the other grounds of appeal.  I also agree, for the reasons which he gives, that the application for leave to appeal against sentence should be refused.

Footnotes

[1]  AB560-561.

[2]  AB93-94.

[3]  Reasons [12].

[4]  Reasons [11].  These allegations were supported by the complainant’s evidence in chief: AB98 Tr1-34 l23 – AB 99 Tr1-35 l35.  See also AB 100 Tr1-36 ll16-45 as to when in the conversation the threats were made.

[5]  AB100 Tr1-36 ll35-39.

[6]  Ibid ll41-45.

[7]  Ibid ll30-34.

[8]  AB101 Tr1-37 ll4-5.

[9]  AB186 Tr2-35 ll31-33.

[10]  AB195 Tr2-44 l40 – AB 196 Tr2-45 l13.

[11]  AB196 Tr2-45 ll15-44.

[12]  AB244.

[13]  Reasons [41].

[14]  Appellant’s Written Submissions (“AWS”) para 16.

[15]  Ibid para 19.

[16]  7 & 8 Geo 4, c 29.

[17]  [1996] QCA 449; [1997] 2 Qd R 213 per Thomas J at 218-220.

[18]  [1997] QCA 127 per the Court at p 5.

[19]  Respondent’s Written Submissions (“RWS”) para 11.

[20]  [1991] CCA 198.

[21]  [2011] QCA 386.

[22] Criminal Code and Other Acts Amendment Act 1961 (Qld) s 15.  Section 415 was in this form when Jessen, Campbell and Kelly, Baker and Perry were decided.  No amendments were made to ss 414, 416 or 417 at that time.

[23]  It is not adjectival as if the section spoke of a “reasonable demand”.

[24]  [1920] 2 KB 260.

[25] Reg v Hamilton (1843) 1 C&K 212; Reg v Chalmers (1867) 10 Cox CC 450.

[26]  [1920] 2 KB 260, at 265.

[27]  [1928] 2 KB 306.

[28]  [1937] AC 797; [1937] 3 All ER 157.

[29]  [1928] 2 KB 306 at 319.

[30]  [1937] AC 797; [1937] 3 All ER 157 at 806-807.

[31]  Ibid at 809.

[32]  Glanville Williams, ‘Blackmail’ (1954) 79 Criminal Law Review 162, 165.

[33]  Ibid at 162-163.

[34]  [1991] CCA 198 at p 5.

[35]  [1997] QCA 127 at p 5.

[36]  See, generally, Glanville Williams, ‘Blackmail’ (1954) 79 Criminal Law Review 162.

[37]  Cp. Thorne v Motor Trade Association [1937] AC 797, 817.

[38] Hardie & Lane v Chilton [1928] 2 KB 306; cf. Kelly, Baker and Perry per Dowsett J.

[39]R v Dymond [1920] 2 KB 260; but see the criticism by Glanville Williams at pp 165ff.

[40]  [2011] QCA 386 at [98].

[41]  [2005] HCA 34; (2005) 227 CLR 166.

[42]  Ibid at [101].

[43]  Appellant’s Supplementary Outline, para 5.

[44]  Ibid para 9.

[45]  Appeal Transcript (“AT”) 1-19 ll10-13.

[46]  AT1-16 ll26-27.

[47]  AT1-19 l15-16.

[48]  Reasons [16]-[41].

[49]  Reasons [60].

[50]  Reasons [61]-[72].

[51]  Reasons [81].

[52]  Ibid.

[53]  Ibid.

[54]  [2004] QCA 420; [2005] 1 Qd R 308 at [53] and [79].

[55]  AWS para 48.

[56]  AB168 Tr2-17 ll27-47.

[57]  AB169 Tr2-18 ll1-8.

[58]  AB167 Tr2-16 ll1-20.

[59]  AB166 Tr2-15 ll37-46.

[60]  AWS para 49.

[61]  Reasons [73].

[62]  Ibid para 50.

[63]  RWS para 24.

[64]  AB96 Tr1-32 l37 – AB97 Tr1-33 l33.

[65]  Reasons [87].

[66]  Reasons [94].

[67]  RWS para 26.

[68]  Reasons [6].

[69]  Reasons [118].

[70]  Reasons [103] and [116].

[71]  Reasons [118].

[72]  [2012] HCA 34; (2012) 290 ALR 699.

[73]  Ibid at [14].

[74]  AT1-23 ll13-17.

[75]  Reasons [99].

[76]  AB177 Tr2-26 ll33-35.

[77]  AB98 Tr1-34 l8.

[78]  Ibid l25.

[79]  AB99 Tr1-35 ll21-22.

[80]  AB25 Tr1-61 ll38-39.

[81]  AB177 Tr2-26 ll34-35.

[82]  Reasons [149]-[154].

[83]  AT1-24 ll12-22.

[84]  [2008] QCA 86 at [19].

[85] R v Omar Succarieh [2017] QDC 73 at [61], [72].

[86]  [2017] QDC 73 at [61].

[87]  [2017] QDC 73 at [81].

[88]  [2005] 1 Qd R 308 at 321 and 326.

[89]  [2005] 1 Qd R 308 at 321 [53].

[90]  [2005] 1 Qd R 308 at 327 [81].

[91]  [1937] AC 797 at 806.

[92]  [1928] 2 KB 306.

[93]  [1937] AC 797 at 806 – 807.

[94] Boughey v The Queen (1986) 161 CLR 10 at 30 and the cases there cited.

[95]  [2011] QCA 386.

[96]  [1991] CCA 198.

[97]  [1993] QCA 514.

[98]  [1997] QCA 127.

[99]  [1997] QCA 127 at p 5.

[100]  [1997] QCA 127 at p 6.

[101]  [1928] 2 KB 306.

Close

Editorial Notes

  • Published Case Name:

    R v Succarieh

  • Shortened Case Name:

    R v Succarieh

  • MNC:

    [2017] QCA 282

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Gotterson JA, McMurdo JA

  • Date:

    17 Nov 2017

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QDC 73 31 Mar 2017 Date of Conviction (Devereaux SC DCJ)
Primary Judgment DC2272/15 (No Citation) 22 May 2017 Date of Sentence (Devereaux SC DCJ)
Appeal Determined (QCA) [2017] QCA 282 17 Nov 2017 -

Appeal Status

{solid} Appeal Determined (QCA)