The Queen v Campbell[1997] QCA 127

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 379 of 1996

Brisbane

Before  Fitzgerald P

Davies JA

McPherson JA

THE QUEEN

v

STEPHEN JOHN CAMPBELL

(Applicant) Appellant

Fitzgerald P

Davies JA

McPherson JA

Judgment delivered 16 May 1997

Judgment of the Court.

APPEALS AGAINST CONVICTION DISMISSED.

APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16 May 1997

On 24 May 1996, the appellant was convicted of two offences and sentenced to imprisonment for a period of three years, to be suspended after four months with an operative period of five years.  He has appealed against his convictions and applied for leave to appeal against his sentence.  The appellant represented himself and, subject to the matters discussed below, raised nothing which might lead to this Court setting aside his convictions or reducing his sentence.

One count on which the appellant was convicted was that between 28 October 1994 and 5 April 1995 he dishonestly applied to his own use property, namely a quantity of firearms the property of one Langham William Dale, and that at the time the value of the firearms was in excess of $5,000.  There is no doubt about the events which constituted that offence, although the circumstances in which those events occurred are material.

Shortly stated, Dale had an extensive collection of firearms stored at a warehouse operated by a business named Kennards Storage and, while Dale was absent overseas, the appellant and a co-accused, Kenneth Edmund Robertson, surreptitiously entered the part of the warehouse where Dale’s firearms were stored, removed the firearms to another part of the warehouse which had been hired by the appellant, then removed them to a shed on a property in Toowoomba owned by the appellant until they were later moved by Robertson to his home in Sarina.

The only issue in respect of that count which requires consideration at this point is whether the appellant acted dishonestly.  The  trial judge told the jury that they must be satisfied beyond reasonable doubt that what the appellant did “was dishonest by the standards of the community of ordinary honest people” and that the appellant “himself must have realised that what he was doing was, by those standards, dishonest”.  The requirement that both objective and subjective tests be satisfied was presumably directed to s. 22, in addition to s. 408C, of the Criminal Code.

A critical element of the other count on which the appellant was convicted was a letter which he typed and posted to Dale shortly before 9 January 1995 in the following terms:

“Mr L. Dale

A list of your gunsare

...

And sunderys

All TLC has been taken.  For the exchange $40,000.  You are to tell no-one including Kenards Storgge insurance company Police Famaly or anyone Ihope you value your family, lives as the trouble your cause we will cause more

we have given you first option have the money ready in used $50notes by 28.1.95

Take a add in the personal columnof the courier mail on the 14.1.95 iff you agree to the deal.”

It is unnecessary to record in detail the subsequent communications which were exchanged by the appellant and Robertson with Dale, by letters to Dale and by Dale’s insertion of messages in newspaper advertising, Dale’s involvement of the police at an early stage and the role which they played, or the appellant’s apprehension by police after a box of the firearms had been left for collection by Dale and the appellant had collected $10,000.00 at a designated location and ridden off on a motorcycle.

In causing Dale to receive the letter set out above early in January 1995, the appellant committed an offence against sub-s. 415(1)(a) of the Code provided that the demand which the writing contained was made “without reasonable or probable cause”.  The trial judge told the jury that the test of reasonable and probable cause was objective, that is, “what a reasonable person would consider as reasonable or probable”.  That direction was consistent with the decision of the Court of Criminal Appeal in Kelly, Baker and Perry (Nos. 144, 155 and 147 of 1991, unreported, 29 August 1991), and no complaint was made of the direction at trial save that the prosecution sought a re-direction to make clear to the jury that the issue for them was not merely whether a demand for $40,000 was reasonable but that all of the circumstances, including the threats accompanying the demand, had to be considered in determining whether the prosecution had established that the appellant had acted without reasonable and probable cause.  Her Honour declined the re-direction on the basis that what the prosecution sought had been made clear to the jury and was not disputed by the counsel representing the appellant and his co-accused at the trial.

While the issue of “reasonable and probable cause” is not without potential difficulty,^[1] 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.^[2]  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.^[3]  And at common law, an honest belief by an accused that the demand was made with reasonable and probable cause might not suffice.^[4]  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 therefore both involve an objective standard, viz., reasonableness.

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.  Those issues for the jury, which have been identified above, fall to be considered in the context of earlier dealings between Dale and the appellant’s co-accused, Robertson, who had befriended the appellant and become a “father figure” to him.

Dale was a person of some wealth, while Robertson, who was not, had received a substantial award of damages for personal injuries which he suffered in an accident.  He provided $38,000 to Dale for reasons which do not really matter, and, approximately two years later, in about November 1993, there was still about $15,000 outstanding despite Robertson’s extensive attempts to obtain repayment of the balance from Dale.

The appellant gave evidence at the trial.  He said that he became friendly with Robertson about November 1993, when Robertson informed him that he was owed $20,000 by Dale which he had been trying unsuccessfully to obtain from Dale for a considerable period of time.  A couple of months later, Robertson told him that he had given Dale “twelve months to come up with the money” or their friendship would be over.  The appellant added that “from there [Robertson] devised a scheme and that’s what this Court case is all about”.  The scheme was devised about two months prior to the appellant leasing part of the Kennards warehouse as the “twelve months was running out”.  Robertson’s circumstances seemed to the appellant to be “Desperate”.

The appellant gave the following evidence when shown the letter which he had had typed and posted which is set out above:

“... How much were you told that Mr Dale owed Mr Robertson? -- $20,000.

Now, it’s clear from the letter there that there’s an amount of $40,000 stated.  What can you tell the Court about that? -- Due to the time involved Ken didn’t really know what he was doing.  Ken wanted to do his best to help me.  He suggested to give me half, I didn’t want it.  So we had justified the difference on interest at the basic rate of 28 per cent at Mastercard for three years.

So what does the extra 20,000 represent? -- In my books it’s interest.  In Ken’s it was hardship, interest - forgotten the words.

What sort of calculations did you make where you justified the 20,000? -- At the time I knew what money was worth.  I knew how much it cost, because of the position I’m in.

Yes, can you expand on that? -- I have three plastic cards, I have a loan - had a loan at the time at the bank.  Out of $24,000 that I paid into those accounts, 60 per cent of it would be interest.

How did that relate to this 20,000? -- I know by simple calculation how much $20,000 costs over three years with no money being paid.

So you figured that worked out to 20,000? -- That’s correct.

Now, you said earlier that Mr Robertson had made some offer to you.  What was that offer? -- The offer was half of the 40.

Half of the 40.  And what did you say to that? -- No.

You said ‘no’? -- That’s correct.

So you didn’t want the money? -- I was there to give Ken a hand.

Yes.  What were you to gain out of all of this? -- Friendship.

Nothing more? -- Nothing more.  Sorry, there are expenses that he was going to pay.

Sorry? -- There are expenses he was going to pay.

Out of that money, though? -- That’s correct.

So what was your view on the other 20,000 being loaded on? -- Justifiable.

How entitled to it did you think that Mr Robertson was? -- Under the circumstances very.

...”

Reference was later made to further letters which were sent to Dale and discussions which took place between the appellant, Robertson and an accomplice Barry Morgan, and to a meeting which took place between them on 4 April 1995.  That meeting followed telephone calls during the previous week in which Robertson requested the appellant to “pick the money up”.  The appellant said that he was “hesitant”, ‘The original agreement of cutting it in half came up.  I didn’t want it”, and “We finally came to the conclusion where I’d borrow $3,000 off him, no interest, for a period of between 18 months and two years”.  According to the appellant, up until then he had only been expecting to be paid his expenses in relation to hiring the storage facility from Kennard Storage and “some petrol”.

Under cross-examination, the appellant agreed that accounts which he had given when interviewed by police differed from his evidence, that at one point in the chain of events Robertson had insisted that, as they were both “taking an equal risk”, they “should share [the money to be received from Dale] 50/50", and that at another point he told Robertson that he wanted “a couple of thousand for my expenses and the work I’m doing”.

Cross-examination also revealed that, when compiling a list of the firearms taken to his Toowoomba property for Robertson, the appellant kept two guns and omitted them from the list.  Further, the cross-examination cast doubt on assertions by the appellant that he was not responsible for the absence of some of the other property taken from Dale’s storage facility at Kennard Storage (which included knives and hand grenades) which was not  recovered.  It also emerged that the appellant and Robertson had discussed keeping or selling some of the items.  Further, the amount of $40,000.00 demanded from Dale had not been calculated by Robertson and the appellant together in the manner referred to by the appellant in his evidence-in-chief; Robertson had simply stated a figure of $40,000.00, and, according to the appellant, he justified it in his own mind by applying compound interest at 27 or 28% over three years to the $20,000.00 which he believed Dale owed Robertson.

Finally, although unnecessarily, it might be added that a perusal of the transcript of the appellant’s evidence leaves a firm impression of evasion and lack of credibility.

The appellant’s case at trial can be gleaned from the trial judge’s summary to the jury of the submissions made by the appellant’s counsel at trial.  Her Honour said:

“[The appellant’s counsel] suggested to you that Mr Robertson had masterminded the whole thing and that his client went along with him and that Robertson was the only one with any experience of Dale.  He suggested to you that Mr Campbell was Mr Robertson’s dupe and he said that Campbell had carried out the most hazardous part of the whole scheme by doing the pickup and he suggested to you that Campbell did this because it was asked of him that he did everything that was done that he did at Robertson’s request and that it was all done out of friendship, because he thought Robertson was hardly done by and that he was a father figure.

...

... He suggested to you that there was nothing in this for his client, that the evidence was that you would accept, he submitted, was that his client, Mr Campbell had refused a split of the money and it was not until after the ... notes or letters had been sent that he was asked to pick up the money.

By way of incentive, that money was then again offered and that was again half and that he refused and it was only then that he agreed to an interest free [$3,000.00] loan ...

Now, he submitted that all his client received was the money for the hire and for fuel and of course, that was received from Mr Robertson fairly early in the piece.  He went through how he said the evidence was of Mr Robertson arriving at the figure of $40,000.00 ..., $20,000.00 for interest and pain and suffering according to Mr Campbell and that he’d worked it out on his mastercard as to what would be owing, 27 per cent over three years compound.

... he submitted to you that his client was guilty of stupidity, but he hadn’t been charged with that, ...”

This seems to have been essentially an attempt to distract the jury, and to sway it into deciding that the appellant was really morally blameless irrespective of his legal guilt.

As is increasingly common when persons who have been convicted appear before this Court, the appellant blamed his trial lawyers for his convictions.  As is usually the case, there is a much more obvious explanation.  He also expressed a sense of grievance that he had been convicted when Dale, and perhaps Robertson, were the real malefactors in his eyes, and will probably continue to feel dissatisfied that he has been held guilty of breaking the law despite it being manifest that his actions constituted offences.

There was ample evidence to support the appellant’s convictions, and no misdirection or ruling was identified which might have deprived the appellant of a chance of acquittal.  His convictions plainly involve no miscarriage of justice; on the contrary, verdicts of acquittal would have been incomprehensible.

Further, the sentence was plainly not outside the range of a sound exercise of the trial judge’s discretion, and corresponded with what the appellant’s trial counsel suggested would be appropriate.

In short, the appeals against conviction and applications for leave to appeal against sentence should be refused.