The Queen v Shambrook[1997] QCA 356

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 359 of 1996

Brisbane

[R v. Shambrook]

THE QUEEN

v.

ROBERT MALCOLM SHAMBROOK

(Applicant) Appellant

Davies J.A.

Moynihan J.

Helman J.

Judgment delivered 21 October 1997

Separate reasons for judgment of each member of the Court.  Davies J.A. and Helman J. concurring as to the orders made.  Moynihan J. dissenting in part.

APPEAL DISMISSED EXCEPT IN RESPECT OF COUNT 2 FOR WHICH CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction and application for leave to appeal against sentence for extortion and wilful damage - whether trial judge erred in not exercising a discretion to allow applications for adjournment indefinitely - whether jury’s verdicts were unsafe and unsatisfactory - whether appellant was not afforded an opportunity of a fair and proper defence - whether trial miscarried.

Counsel: Applicant/appellant appeared on own behalf.

Mr J. Henry for the respondent.

Solicitors: Applicant/appellant appeared on own behalf.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 6 December 1996

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 21 October 1997

1.  The case below

The appellant was convicted in the District Court on 17 July last year on six counts of extortion and one of wilful damage.  He was sentenced to an effective term of three years, that being the sentence imposed in respect of each of the extortion offences.  He was also sentenced to imprisonment for one year on the wilful damage count but the sentences were concurrent.  He appeals against his convictions and seeks leave to appeal against his sentences.

The incidents which gave rise to the convictions occurred in late October and early November 1994.  The appellant was then 40 years of age.  He was a former police officer who had become a private investigator.  In that capacity, according to him, he was approached on 26 October 1994 on behalf of Mr. Charlie Chen in respect of a judgment which had been obtained against his company in the Magistrates Court by Mr. Barry Singleton.

Mr. Singleton had performed some work for Mr. Chen's company pursuant to an agreement for a fixed sum.  Chen or the company had paid half of this sum to Mr. Singleton who then sent invoices and letters for payment of the other half but received no response.  Ultimately Mr. Singleton sued in the Magistrates Court and obtained judgment for $4,166.04.  A warrant of execution was then issued against the company for that sum.  The debt was never disputed.

The appellant met Mr. Chen at the solicitor's office of Michael Chen & Associates.  A woman in that office acted at interpreter as Mr. Chen apparently did not speak English fluently.  The appellant was engaged, for the sum of $2,000, in his words, "to approach Mr. Barry Singleton to find out or to ask Mr. Singleton if he was prepared to drop the current warrant of execution against Mr. Chen's company and to see if Mr. Singleton would come to the negotiation table and accept some offer to satisfy the existing judgment."  It was not suggested by Chen that there was any legal basis for setting aside the warrant or the judgment or indeed that the amount was not owing.  Nor did the appellant assert, in examination-in-chief, that it was suggested to him that there was any lawful inducement which could be held out to Mr. Singleton to persuade him to consider accepting less than the full amount of his debt.  However in cross-examination the appellant said that Mr. Chen wanted to satisfy the judgment by providing rugs and carpets to the value of $4,000.  That seems incredible given that Chen was, in addition, offering to pay the appellant $2,000 to bring Mr. Singleton  "to the negotiation table".

It is difficult to accept that the appellant's instructions did not invite and, indeed, expect him to use threats and possibly even violence to induce Mr. Singleton to forego his debt or to settle for some smaller sum.  It is equally difficult to accept that the appellant did not understand his instructions in that way.  Why otherwise would not Chen have used his solicitors to convey any lawful offer to Mr. Singleton?  And why otherwise would Chen have offered such a proportionately large sum to the appellant?  I should add that, in view of events to which I am about to refer, it seems likely that the appellant was engaged by Chen in late September or early October rather than, as he said, in late October.

The appellant then recruited Russell Franks.  Franks was at the time a security guard at the Moreton Bay Hotel nightclub at Redcliffe or, as referred to in the case, a "bouncer".  He was a large man, six foot three inches in height and of sturdy build.  According to Franks this was in late September or early October 1994.  And it appears that Franks first made inquiries about Mr. Singleton's whereabouts in early October.

Franks pleaded guilty in the District Court on 26 May 1995 to one count of extortion between 30 October and 12 November 1994.  He then gave evidence for the Crown in this trial.  However his evidence was directly relevant to only two of the seven counts against the appellant.  These were counts 1 and 3.  The counts, in chronological order, were as follows.

Count 1 related to a phone call from Franks to Singleton on 31 October 1994.  Count 2 related to a phone call from the appellant to Singleton on 1 November 1994.  Count 3 related to a phone call from Franks to Singleton on 3 November 1994.  Count 4 related to a phone call from the appellant to Singleton on 4 November 1994.  Count 5 related to a meeting between the appellant, Chen and Singleton on 5 November.  Count 6 was the wilful damage count and count 7 related to a phone call from the appellant to Singleton on 11 November 1994.

At the trial there was no dispute that any of these phone calls were made.  Any such dispute would have been pointless as there was independent evidence of them.  With respect to the phone calls made by the appellant, those the subject of counts 2, 4 and 7, there was some conflict between the evidence of Singleton and the appellant as to what was said.  Similarly  with respect to count 5 which concerned the meeting between Chen, Singleton and the appellant there was some conflict between the evidence of Singleton and the appellant.  However the appellant did not ever assert that he conveyed to Singleton the offer which, he said, Chen was prepared to make.  It was alleged against the appellant that he procured Franks to make the phone calls the subject of counts 1 and 3.  These involved threats made by Franks.  The defence was, in substance, that Franks had exceeded his authority.  But again the appellant did not assert that he conveyed to Franks the offer that he said Chen was prepared to make.  Franks did not dispute Singleton's version of the substance of these calls.

There was a conflict between the appellant and Franks as to what was said during their initial conversation in which the appellant engaged Franks.  Franks said that he was offered $500 if he could persuade Singleton to "drop" a "civil suit" against a client, apparently naming Chen.   On one version the appellant said he "could persuade him by any means that I see fit". The appellant's version was that he told Franks that he had a Chinese client, without naming him, who had a business called Asia Development Group, that there was a civil judgment against that company and that his client felt that it was unfairly issued by the court.  He said that his client wanted Singleton approached and asked if he was prepared to drop the warrant of execution and discuss a possible offer from his client though, as I have said, he did not tell Franks what that offer was.  He then supplied a description of Singleton and his wife and of their address.

The main difference between the competing versions of this conversation, or at least the difference relied on by the appellant here and below, is that Franks said the appellant used the word "persuade" and "persuade him by any means that I see fit" whilst the appellant, denying that, said he used the word "ask".  There is nothing necessarily sinister in persuasion or persuasion by whatever means are seen fit.  What is sinister about the conversation between the appellant and Franks is its context;  the appellant had been offered $2,000 to bring Singleton to the negotiating table over a judgment debt of $4,000;  he was prepared to offer $500 to Franks to perform that task when Franks' only persuasive skill, it might be thought, was his size;  there was no suggestion by the appellant to Franks of any lawful inducement which might persuade Singleton to consider giving up or reducing his judgment debt;  and the appellant gave Franks particulars, not only of Mr. Singleton, but of his wife.

It is plain that Franks construed the appellant's offer, which he accepted, in the way any other sensible person would:  that he was being asked to threaten Singleton.  According to Mr. Singleton that is what he did in the conversations the subject of counts 1 and 3.  In the first of them, according to Singleton, Franks said:

"I represent the Triads.  Unless you drop the warrant of execution by tomorrow there will be a price on your head."

In the conversation the subject of count 3 he said:

"You're being watched.  You only have today to do something about it.  I am only ringing you to let you know you have a way out."

Singleton replied:

"I've tried to resolve the issue with Charlie."

Franks replied:

"I have been contracted to do the job and they are my boys.  You either cancel the judgment or we do the job today.  I can't talk any more to you."

No sensible reason was given for doubting Mr. Singleton's credibility.  There were, no doubt, reasons for doubting Franks' credibility.  He was an accomplice, and the learned trial Judge gave careful directions about that.  He also admitted to telling some lies.  Nevertheless the jury were entitled to accept his evidence corroborated as it was in important respects by the evidence of Mr. Singleton.

As to counts 2, 4, 5 and 7 there can be no doubt that, once Mr. Singleton's evidence was accepted, counts 5 and 7 were established.  In the first of these he was told, at the meeting in Chen's office, that  if he did not co-operate, "things would continue".  Although Chen and another person were present at the meeting, the appellant did most of the talking and Mr. Singleton recalled it was the appellant who said this.  In the second he was told, shortly after the tyres on his wife's car were slashed, "Michelle's next".  Michelle was his daughter.  The strength of the Crown case is not so immediately clear with respect to counts 2 and 4.

When he received the call from the appellant, the subject of count 2, Mr. Singleton was driving his car.  His recollection, from a contemporaneous note of that conversation, was that  it was to the following effect:

The appellant said "Mr. Singleton, do you recall that warrant?"

Singleton said "What warrant?"

The appellant said "The one that you have against the Chinese gentleman."

Singleton said "I don't know what you're talking about."

The appellant said "Thank you" and rang off.

Taken in isolation, if that was all that was said, no demand or threat would be involved.  However it appears from the appellant's case that there was more to the conversation than that.  The appellant said in evidence that he said to Mr. Singleton, at the outset of that conversation, "I understand you are prepared to withdraw the warrant of execution against Asia Development Group".

The jury were entitled to conclude that the conversation between the appellant and Singleton included a reference to dropping the warrant of execution and was made in the context, known to the appellant, of the threats made by Franks the subject of count 1.  But it may not have been open to them to conclude that it constituted a further demand and threat.  I shall discuss this later.

The conversation constituting count 4 must also be considered in the context of the threats which had been made beforehand by Franks on 31 October (count 1) and 3 November (count 3).  In that context the appellant made the statement to Singleton:

"Mr. Singleton you have obviously not cancelled the warrant of execution.  Charlie wants it cancelled."

There was some further conversation but the jury were entitled to conclude that, implicit in the above statement, was a demand and a threat.

On 4 January 1995 the police executed a search warrant on the appellant's premises.  There they found a page in a notepad, containing handwritten notes and the appellant's thumb print, on which the following entry appeared:

"Mr. Singleton, you obviously didn't take our warning last Monday as being serious.  You have taken a civil court warrant out against my friend.  If you don't withdraw it by 11.00 a.m. today, your health will suffer.  Do you understand?"

The words "Asia Development Group" were written at the bottom of the page.  The appellant's explanation for this was that he received a call from Chen who dictated what was there written down by the appellant but that he then told Chen that he was not prepared to convey such a message.

The jury were entitled to disbelieve his explanation of this note.  Indeed it would be surprising if they did not.  Chen, it appears from other evidence including the appellant's, could not speak English well.  He had needed an interpreter when first speaking to the appellant face to face.  It would be surprising, in the circumstances, if he could have dictated a note containing phrases such as "civil court warrant".  Moreover Franks' first threat had been made on Monday 31 October which may well explain the reference in the note to "our warning last Monday".  According to the appellant the note was written that week.  It is very much more likely therefore that this was intended by the appellant to be the general effect of what would be said to Singleton.

Before turning to the grounds of appeal it remains only to say something of the wilful damage conviction.  This involved slashing the tyres of a car, owned by Mr. Singleton's wife, parked in the driveway of their home.  It was found in that condition on the morning of 11 November 1994.  The main evidence against the appellant was the telephone conversation at approximately 5 o'clock that afternoon which constituted count 7.  The appellant phoned Mr. Singleton and, after ensuring that it was he, said simply "Michelle's next".  It was contended that the close proximity in time between the slashing of the tyres and this phone call indicated, in the general context of the case, that the appellant had been a party to the slashing.  That was an inference, in my view, which the jury could have drawn though I shall say something further about this below.

The case against the appellant therefore on counts 1, 3, 4, 5 and 7 was a strong one.  It is with that background that I turn to the specific grounds of appeal.

2.  The grounds of appeal

The appellant's amended notice of appeal contained five grounds of appeal against conviction.  One contended that the learned trial Judge had erred in not granting an indefinite adjournment on 10 and 11 July 1996;  two complained about the conduct of legal representatives and two asserted that the verdicts were unsafe and unsatisfactory.  It is convenient to discuss them in that order.

1. ground 1

Ground 1 was in the following terms:

"1. The learned trial judge erred in not exercising her discretion to allow application for adjournment indefinitely on 10 July and 11 July 1996."

An adjournment of the trial was first sought on the appellant's behalf on 5 July.  Three bases were put for the application on that day.  The first was the unavailability of some telephone records from Telstra and Optus.  The second was that the trial was due to start on the following day and counsel had not been briefed for the trial.  And the third was the unavailability of a possible witness, Mr. Charlie Chen.  The first two bases for the adjournment may, in the end, be put aside.  The trial did not proceed until 12 July.  In the meantime the Telstra and Optus records became available and no further point was taken about additional time needed in respect of them.  Moreover by 10 July Mr. Lewis of counsel had been briefed for the defence for the trial and he asked the trial Judge and was given two days adjournment in which to prepare the matter.  It was not later suggested by him that that time was inadequate and there is nothing of substance to indicate that it was.

The court was told by the appellant's counsel on 5 July that two weeks prior to that date Chen had left for China for an indefinite period.  He could give no estimate as to when Chen would return.  However it emerged on 11 July that the appellant knew where Chen was in China but had apparently made no attempt to contact him.  The appellant's counsel on that date indicated to the court that an attempt would be made to contact Chen but nothing further was said of this and, after the commencement of the trial on 12 July no further application for an adjournment was made.

The police had taken a statement from Chen, a copy of which the appellant had on 5 July.  The Crown prosecutor told the court on that date that Chen's statement contained no relevant evidence.  On 11 July the appellant's counsel told the court that not much came out of the police interview with Chen and that Chen had been reticent about talking to the police.  That is not surprising.  Indeed it would be surprising if Chen were interested in giving evidence in the case or, indeed, in returning to Australia whilst the case was pending.

The learned trial Judge, in finally refusing an adjournment on 11 July on the basis of Chen's unavailability, was entitled to think that it was most unlikely that he would wish to be involved in the matter to the extent of giving a statement to the appellant's legal advisers, that he would be unlikely to return to Australia whilst the case was pending and, possibly also, that his absence from Australia might be related to the fact that the case was coming on for hearing.  Her Honour would also have been entitled to take into account that, whoever's fault it was, prior to 5 July, that no statement, on the appellant's behalf, was taken from Chen, the absence of any explanation for a failure to contact Chen during the period between 5 and 11 July indicated the unlikelihood that the appellant really wanted to make contact with and obtain a statement from Chen.

There were other matters placed before the Judge who heard the matter on 5 July and the learned trial Judge who heard the applications on 10 and 11 July which cast doubt on the bona fides of the appellant's applications for adjournment.  There was, for example, cause for thinking that the appellant had dismissed his legal representatives, on more than one occasion, without good reason.  There was a conflict between him and Ms. Dick as to whether she had declined to act for him further on the basis of other commitments or whether he had dismissed her;  he asserting the former, she the latter.  A conversation between the appellant and his then solicitor on 2 July, secretly recorded by the appellant, tends to support Ms. Dick's version of events.  His instructing solicitors then engaged Mr. Davis of counsel and the appellant's explanation for how Mr. Davis became unavailable seems unlikely.  By 10 July Legal Aid Queensland had told the appellant that if he sought to remove the solicitors and barristers then engaged for him his Legal Aid would be terminated.  The learned trial Judge said on 10 July that, without making any final findings on the matter, its history seemed to suggest that the change of representatives so close to trial date might well have been due to the attitude of the appellant.

The trial date had been fixed since April and it had been known for some time that the investigating police officer, who was an essential witness, would be out of the country from 1 August 1996 to March 1997.

In those circumstances it is impossible to say that the learned trial Judge's discretion miscarried in refusing to grant an adjournment beyond 12 July.  This was not a case in which Chen was shown to be an essential witness for the appellant.  On the contrary, the likelihood was that he would have been a most reluctant witness and there was no indication of whether, if he gave evidence, it would support the appellant or the prosecution.  No attempt had been made by the appellant at any time prior to the commencement of trial, and there was no evidence that any was made subsequently, to contact Chen with a view to ascertaining what he could and would say which would help the appellant in his defence.  This ground of appeal must therefore fail.

2. grounds 4 and 5

The two amended grounds of appeal which complained about the conduct of the appellant's lawyers were:

"4. The accused was not afforded an opportunity of a fair and proper defence being prepared by Legal Aid solicitors Terry Fisher & Company and Peter Russo & Associates due to:

1. failure to carry out reasonable instructions given by the accused for defence preparation;

2. the attitude by legal representatives towards defence preparations and the accused;

3. late change in legal representatives;

4. and several applications for adjournment indefinitely being refused.

5. The trial miscarried by reason of a combination of errors by counsel for the defence during cross-examination and re-examination of witnesses which denied the accused the granting of a mis-trial."

It can be seen that the first of these grounds relates to conduct up to but not including trial;  the second relates to the conduct of the trial.

ground 4 - conduct prior to trial

The main complaint appears to be based on a letter which the appellant said he faxed to his then solicitor on 2 July and a transcript of a meeting between them later that day which he recorded secretly.  The letter refers to meetings at the office of the solicitor on 24 April and at counsel's chambers on 17 May and 27 June 1996.  It then asks the solicitor to advise as to whether a number of things have been done "with regards to the matters raised at these appointments" implying either that he had requested these to be done or that it had been agreed that they would be done at one or other of these meetings.  The matters included interviewing and obtaining statements from four witnesses including Mr. Chen.

During the course of that meeting, according to a transcript of the tape recording put before this Court by the appellant, the solicitor on a number of occasions said that the witnesses referred to in the letter were not relevant, that counsel had said they were not relevant and that the appellant had previously been informed of this.  He also made the point that he was concerned that the letter had been written to "set him up";  that if the appellant lost his case, as seemed quite likely, he would use the letter to put blame on the solicitor.  Whatever the merits may be of the solicitor's contention there is no evidence that any of the witnesses, other than Mr. Chen, were relevant to any issue in the appellant's trial;  and, as I have already shown, there was no evidence that Mr. Chen would or even might give evidence supporting the appellant's defence to any of the counts.  None of the other matters referred to in the letter of 2 July is of any substance.

The matters to which I have referred so far seem to comprise the contended failure by solicitors to carry out reasonable instructions given by the accused for defence preparation.  The reference in ground 4(b) to the attitude by legal representatives towards defence preparations and the accused seems to refer to the attitude of Mr. Fisher, the appellant's solicitor until 5 July, as appears from the tape recorded meeting between the appellant and him.  I must say that, as recorded in that conversation, Mr. Fisher shows a less than professional attitude to Legal Aid clients;  one that implies that, because the fees are low, a solicitor should not be expected to do very much.  On the other hand there is some basis for thinking, as Mr. Fisher plainly did, that the appellant's letter of 2 July, in the light of what had taken place previously, might have been sent for the purpose of later being used against Mr. Fisher, or at least to the appellant's advantage on appeal, if he should lose at trial as Mr. Fisher then thought likely.

In any event there is nothing to suggest that anything in Mr. Fisher's attitude, or that of his firm, caused any prejudice to the appellant in the conduct of his defence.  The appellant also relied on late changes in legal representatives and the refusal of adjournments but it appears from what I  have already said that neither of these caused the appellant any prejudice.  There is therefore no substance in this ground of appeal.

ground 5 - conduct of the trial

On four occasions, according to the appellant, his counsel failed to put to a Crown witness an important part of a conversation between that witness and the appellant of which the appellant later gave evidence.  Three of these involved the witness Franks;  the fourth involved the complainant.

Two of these cases may be disposed of immediately for in each of them, when the matter was raised at the conclusion of the evidence, counsel informed the learned trial Judge that his failure to put the matter was not an oversight on his part;  and there is no evidence to suggest that his instructions were in accordance with the appellant's later evidence.  Both involved Franks.

In the first of these Franks gave evidence that on 31 October 1994 he rang the complainant and said "I represent the Triads.  Unless you drop the warrant of execution by tomorrow there will be a price on your head".  He said that on the same day he rang the appellant and told him what he had said to the complainant.  It was put to him in cross-examination that he did not say that to the appellant and that the conversation between him and the appellant on 31 October was as follows:

"It is Russell.  The job is done.  Singleton has agreed to drop the warrant and listen to what your client's got to say."

"Was there any problem?"

"No mate.  He was very friendly, and I have got his work and mobile numbers."

Franks denied that this was the conversation.  When he came to give evidence the appellant added to the version put to Franks a statement by Franks as follows:

"I warned him that the actual offer was subject to him withdrawing the warrant."

In the first place it may be said that this additional statement does not appear to assist the defence.  There is nothing to indicate what the "offer" was.  The evidence is neutral.  In any event the appellant's counsel told the trial Judge that his failure to put that statement was not an error;  that it was not part of his instructions.  There is no evidence to the contrary.

As to the second, Franks said he had a conversation with the appellant in which he said there was no more he could do, that he had done his part of the deal and he asked for payment for what he had done.  According to him the appellant replied "You haven't done your job properly and you're not getting paid".  The appellant said in his evidence that he did not discuss payment with Franks other than at their original meeting on 28 October.  This was not put to Franks.  However there is no evidence that it formed part of counsel's instructions.

Two other matters, however, not put to Crown witnesses were conceded by the appellant's counsel to be oversights on his part.  The first was said to be of some importance in the case.

This involved the conversation between the appellant and Franks in late September or early October 1994 at the Moreton Bay Hotel in which the appellant initially engaged Franks.  I have already set out the conflict between the appellant and Franks as to what was said.  In cross-examination the appellant's counsel put to Franks that the appellant did not want him to use whatever means of persuasion he saw fit.  But he did not put to Franks that the word "persuade" was not used and he accepted that this was an omission on his part;  that his instructions were in accordance with the version given by his client.

The prosecutor, in cross-examining the appellant, put to him that his version, using the word "ask" instead of "persuade", was a recent invention, as she was entitled to in view of the failure of the appellant's counsel to put that to Franks.  But when, after the close of evidence, the appellant's counsel told both the Judge and the prosecutor, in the absence of the jury, that the fault was his the prosecutor agreed not to address on the basis that the failure to put the appellant's version to Franks was an indication that it was a recent invention on the part of the appellant.  The matter then proceeded, so it appears, on the basis simply that there was a conflict between the appellant and Franks as to whether the word "ask" or the word "persuade" was used as well as, of course, whether the appellant wanted Franks to use whatever means of persuasion he saw fit..

I think that whether "persuade" was used in this conversation is of minimal importance although it was of some importance whether the appellant said that Franks could persuade by any means that he saw fit.  So far as Franks was aware, the complainant had a judgment debt against Chen's company, he had issued a warrant of execution against it and there was nothing which could be lawfully negotiated.  It was simply a question of whether the judgment debt would be paid or not.  In the context referred to earlier the talk of bringing the complainant to a negotiating table could never have been more than a euphemism for persuading him by threats not to enforce his judgment debt.  In that context either "ask" or "persuade" was a euphemism for threaten.  Counsel for the appellant put to Franks the important part of his client's version.

The other matter not put to a Crown witness, conceded by counsel for the appellant to have been by oversight on his part, concerned the telephone conversation between Mr. Singleton and the appellant on 4 November 1994 the subject of count 4.  But for the matter to which I am about to refer there appears to be substantial agreement between them as to the substance of what was said.  After that part of the conversation set out earlier there was some discussion about the agreement under which the money became payable and then Mr. Singleton said that he told the appellant that he wanted to see Chen personally.  According to him the appellant replied:

"Why?  Do you want to set him up?"

The complainant then said:

"No, I just want him to tell me the calls will stop."

The appellant said:

"I don't know if he will agree.  We will see.  There better not be any tricks."

The appellant's version of this part of the conversation went as follows.  The complainant said:

"I want to tell Charlie to his face that I want the phone calls to stop."

The appellant said:

"What phone calls are you referring to?"

The complainant said:

"The threatening phone calls."

The appellant said:

"Look, I don't know anything about any threatening phone calls."

There was then some further conversation about the meeting.

The important difference between these versions, according to the appellant, is that his version supports his contention that, up to then, he had no idea that Franks had made any threats to the complainant.  The appellant's counsel conceded, as I have said, that the appellant's version, in this respect, as he gave it in evidence, constituted his original instructions and that therefore he should have put this part of the appellant's version of the conversation to the complainant.

But it is almost inconceivable, having regard to the matters already referred to, that, by 4 November, the appellant did not know that Franks had threatened the complainant.  In both this and the other case of oversight by counsel for the appellant the learned trial Judge asked whether he would like witnesses to be recalled and counsel declined to seek that.  That is not surprising.  In this case it would only have highlighted an inherently incredible version of the conversation by the appellant.

In order to show that there has been a miscarriage of justice in consequence of counsel's conduct of the trial it must be shown that conduct deprived the appellant of a significant possibility of acquittal.^[1]  It follows from what I have said with respect to counsel's failure to put aspects of the appellant's evidence to prosecution witnesses, that I do not think that any such failure deprived the appellant of a significant possibility of acquittal.  Indeed I think that, in the light of the strong case against the appellant, these failures would have passed unnoticed by the jury.

3. grounds 2 and 3

Finally there are two grounds which contend that the verdicts were unsafe and unsatisfactory.  They are as follows:

"2. The jury's verdicts were unsafe and unsatisfactory on the evidence.

3.  It was unsafe for the jury to rely on the evidence of the Crown witness Franks."

Counts 2, 4, 5 and 7 and, to some extent, 6 depend largely on the evidence of Mr. Singleton.  There is nothing on the face of the record which would cause one to doubt his evidence.  It was internally consistent and the jury may have been assisted, in their assessment of credibility, by the fact that he made contemporaneous notes shortly after each of the relevant events.  He had no motive to lie.  It was plainly open to the jury to accept his evidence.  By contrast the whole tenor of the appellant's evidence is in my view inherently incredible once it is accepted that he was engaged by Chen, for the sum of $2,000 to dissuade the complainant from pursuing his judgment, for a little over $4,000, against Chen's company and that he said he engaged Franks, for $500, simply  to "ask" Mr. Singleton not to enforce those rights but to come "to the negotiation table".

As to Franks, upon whose evidence, in part, counts 1 and 3 depend, it is true that he was an accomplice, that there were inconsistencies in his evidence and that, as his admission and his conduct reveal, he was a witness of poor character who, it might be thought, would lie to suit his own interests.  On the other hand, his evidence was consistent with that of Mr. Singleton and with the most credible explanation of the purpose for which he was engaged by the appellant.  In my view, therefore, to the extent that verdicts were based on Franks' evidence, they were not, for that reason, unsafe or unsatisfactory.

It was plainly open to the jury, on the evidence which they were entitled to accept, to be satisfied beyond reasonable doubt that the appellant was guilty on counts 1, 3, 5 and 7.  I have no doubt that the verdicts were correct on those counts.

I have earlier set out Mr. Singleton's recollection of the conversation the subject of count 2 and the appellant's added recollection that he had said to Mr. Singleton that he understood Mr. Singleton was prepared to withdraw the warrant.  It is true that the conversation must be viewed in the light of Franks' earlier threats to Singleton.  But even in that light it is difficult to construe what the appellant said as a demand containing a threat.  In my view the jury's verdict on that count was unsafe and the conviction on that count should be quashed.

The evidence on count 4, which I have also set out earlier, is stronger for it contains the statement by the appellant that Singleton had obviously not cancelled the warrant and that Charlie wanted it cancelled.  In the light of the earlier threats made by Franks, the subject of counts 1 and 3, it was open to the jury to infer that this was a further demand containing a threat and consequently to be satisfied beyond reasonable doubt that the appellant was guilty on this count.

The question with respect to count 6, the wilful damage count, is whether it was open to the jury to conclude, beyond reasonable doubt that it was the appellant, or Franks procured by the appellant, who slashed the tyres.  It is plain enough that the appellant knew of the commission of this offence shortly after it occurred.  The only other possible offender is Chen himself.  That seems a remote possibility given that he had never become directly involved and had agreed to pay the appellant $2,000 to achieve the result he wanted.  It is also unlikely to have been Franks who, according to him, had been told a week earlier by the appellant that he had not performed his job properly and would not be paid.  In my view it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that it was the appellant who slashed the tyres.

3.  Conclusion on conviction appeal

It follows from what I have said that, except with respect to the appeal on count 2, the appellant must fail.  I would therefore allow the appeal in respect of count 2, quash that conviction and in lieu enter a verdict of acquittal.  Except in that respect I would dismiss the appeal.

4.  Sentence

The sentence imposed was, as I have said, an effective sentence of three years being sentences of three years on each of the extortion offences and one year in respect of the wilful damage offence, all to be served concurrently.  The appellant is 43 years of age, having been born on 16 June 1954.  He has no prior criminal history.  However he was, as I have said, a former police officer who might be expected to be aware of the seriousness of offences of this kind.  Nevertheless he engaged in a persistent course of threatening and intimidatory behaviour.

The appellant's conduct was plainly calculated to cause distress to the complainant and his family and did so.  It was also aimed at defeating a legal process and showed a contempt for the judgment of a court and the rule of law.  Moreover the appellant has at no time shown any remorse for his conduct.

A number of sentences were referred to by way of comparison.  It is unnecessary to refer to any of them in detail.  The main ones were Renwick C.A. No. 244 of 1991, Stokes C.A. No. 179 of 1992, Jonasson C.A. No. 420 of 1993, Jessen C.A. No. 448 of 1996 and Bayliss, an unreported decision of the Western Australian Court of Criminal Appeal given on 3 March 1992.  None of these is closely comparable to the facts of the present case but they do show, in my view, that the sentence imposed was well within the range of a sound discretionary judgment.  The appellant also referred to a number of sentences imposed in the District Court, none of which was inconsistent with that conclusion.

There were, it is true, some factors which pointed to mitigation of this sentence in some way.  He had no prior criminal conduct and, it was said, he had assisted the administration of justice by giving evidence against corrupt officers at the Fitzgerald Inquiry.  Moreover, it was said, as a former police officer his time in gaol would be more difficult than that of some other prisoners.  Finally, it can be said that he has already been punished to some extent by the fact that his career as a private investigator is now at an end.

In considering these factors it must be borne in mind that the sentence which was imposed was not one which, in my view, was at the top end of the appropriate range.  Rather it was towards the middle of that range.  In those circumstances I do not think it required to be mitigated further by, for example, a recommendation for early parole.

I do not think that the effective sentence should be reduced in any way in consequence of setting aside the conviction on count 2.

I would therefore refuse the application for leave to appeal against sentence.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 359 of 1996

Brisbane

Before  Davies J.A

Moynihan J.

Helman J.

[R. v. Shambrook]

THE QUEEN

v.

ROBERT MALCOLM SHAMBROOK

(Applicant)                  Appellant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 21 October 1997

This is an appeal against conviction and an application for leave to appeal against sentence.  After a trial in the District Court at Brisbane, the appellant was convicted of six counts of extortion and one count of wilful damage to property.  He was sentenced to three years imprisonment on each of the extortion counts and to one year's imprisonment for the wilful damage count, the terms to be served concurrently.

The appellant was represented by counsel at his trial but prepared the appeal documents and conducted the appeal himself.  His conviction arose in the following circumstances.  In late 1993 and early 1994 the complainant (a man named Barry Singleton) did work for Asia Development Group Pty Ltd which was a company apparently controlled by a man named Charlie Chen.  The complainant was only paid half the agreed price for the work, sued and obtained judgment for the balance and obtained the issue of a warrant of execution to enforce it.  There does not appear to have been any lawful basis for setting aside the judgment or the warrant.

In late September or early October 1994, the appellant (a former police officer who at the time of the offences was the principal of a private investigation firm) was retained by Chen in connection with Singleton's efforts to recover the money owed by Chen's company.  The appellant, having been retained by Chen, retained a man called Russell Franks to approach Singleton.  Franks main qualification seems to have been he was a nightclub bouncer of imposing bulk.  It was not really an issue by the end of the trial that the appellant or Franks (he made two of the calls) had made the telephone calls the subject of the counts and the evidence was more than capable of supporting that conclusion.  The appellant put in issue the contents of the calls attributable to him - that in effect they were not extortionate.  In so far as Franks made extortionate calls the appellant’s case was that this was Franks’ own idea and the appellant could not be held criminally responsible.

The remaining extortion count arose out of a meeting arranged between the complainant Chen and the appellant.  That there was a meeting was not really in issue by the end of the trial, the appellant again put in issue that anything capable of constituting extortion occurred.

The seventh count, of wilful damage, relates to the slashing of the tyres on a car owned by Singleton's wife in the context of the appellant and Franks' endeavours to have Singleton desist from pursuing recovery of the debt.  The prosecution's case was that the appellant counselled or procured Franks to commit the damage or that he did it himself.  There was evidence, if accepted by the jury, connecting the appellant to a phone call to Singleton, the contents of his contribution to which was capable of indicating knowledge of the slashing. 

The appellant’s evidence was to the effect that he instructed Franks to approach Singleton and negotiate the removal of the warrant of execution and to arrange the settlement of the debt.  The appellant denied that he had used the word "persuade" in his instructions to Franks and his evidence was to the effect that Franks went off on a "frolic of his own" so that Franks' extortion was without any knowledge or encouragement on the part of the appellant.  Franks had pleaded guilty to extortion as a consequence of his involvement, was sentenced and gave evidence against the appellant.  This was to the effect that the appellant approached him to have the proceedings against Chen's company dropped and if that if he could "persuade" the complainant to do so, the appellant would pay him $500.  Franks accepted that some, at least, of the threats he made to Singleton "were his own idea".  Whether “persuade” was used became an issue at the trial.

The complainant (Singleton) and his wife were called by the prosecution as well as Franks. Singleton had what he stated were contemporaneous notes of the contents of various contentious telephone conversations and of course gave evidence about them.  There is nothing remarkable about the jury’s acceptance of his evidence.  The investigating police officer was called.  He proved matters concerning the connection of individuals with telephone numbers and other circumstantial considerations.  His evidence of a potentially incriminating statement allegedly made by the appellant was excluded by the trial judge after a voire dire; the evidence he otherwise gave was essentially formal.  There was evidence from other witnesses capable of supporting, for example, inferences that inquiries were being made to find out Singleton's address and to ascertain his phone number and of connecting the applicant with some at least of these endeavours.

Chen did not give evidence at the trial, as will emerge, his availability to do so was an issue on this appeal.  A copy of Chen’s statement to the police had been provided to the appellant before his trial.  It appears that it contained no relevant evidence and there is no basis for concluding that Chen could have given evidence which would have assisted the appellant.  Chen had gone to China shortly before the trial and there is reason for thinking he may have considered it not in  his interest to be available to give evidence at the trial.

In summing up the trial judge told the jury that the case against the appellant was circumstantial.  The judge emphasised to the jury the importance of Franks' evidence to the prosecution case pointing out that Franks had lied to the police in his first statement and given a fresh statement immediately prior to his being sentenced, a time when he had an interest in minimising his role and putting the maximum responsibility on the appellant.  The judge stressed the need to approach Franks' evidence with caution, directed the jury that he was an accomplice and warned them in strong terms of the danger of acting on his evidence unless it was corroborated.  The judge directed the jury that a note, acknowledged by the accused to be in his handwriting, which read "You obviously didn't take our warning last Monday as being serious.  You have taken a civil suit warrant against my friend.  If you don't withdraw it by 11.00 a.m. today your health will suffer" was capable of corroborating Franks' evidence.  The judge reminded the jury of the appellant's explanation to the effect that Chen had instructed him that he wanted a message in terms which he then dictated and which the appellant recorded in the notebook but that he (the appellant) was not prepared to act on the instruction and did not do so.  The jury was directed that a second piece of evidence capable of corroborating Franks' evidence came in the form of Singleton's evidence that the appellant had said to him that he (Singleton) had been discovered wearing a listening device at the meeting the subject of one of the extortion counts.  There was evidence that at this meeting the appellant said to the effect that if the complainant didn't "co-operate, well, their action would persist".  The final piece of evidence directed to be capable of constituting corroboration was the appellant's evidence that he had agreed to pay Franks $500 for bringing Singleton to the negotiating table combined with his choice of Franks possessing the physical characteristics referred to earlier.  There is no basis for complaint about the aspects of the summing up.  The case against the appellant is justifiably described as a strong one.  Taken as a whole the evidence was capable of founding the jury’s verdict on each count.

The jury was adequately warned as to the constraints affecting their consideration of Franks’ evidence.  There was evidence capable of corroborating it and other evidence implicating the applicant.  The outcome of the trial is not surprising.

The appellant supported the amended notice of appeal with voluminous written material some of which was more directly relevant to the grounds of appeal and the issues consequently arising than other parts of it.  The grounds of appeal are–

1. The learned trial judge erred in not exercising a discretion to allow application for adjournment indefinitely on 10 July 1996 and 11 July 1996.

2. The jury's verdicts were unsafe and unsatisfactory on the evidence.

3. It was unsafe for the jury to rely on the evidence of the crown witness Franks.

4. The accused was not afforded an opportunity of a fair and proper defence being prepared by Legal Aid solicitors Terry Fisher and Company and Peter Russo and Associates due to–

(a) failure to carry out reasonable instructions given by the accused for defence preparation;

(b) the attitude by legal representatives towards defence preparation and the accused;

(c) late change of legal representatives; and

(d) several applications for adjournment being indefinitely refused.

5. The trial miscarried by reason of a combination of errors by counsel for the defence during cross-examination and re-examination of witnesses which denied the accused the granting of a mistrial.

6. The sentence passed by the learned sentencing judge was manifestly excessive in all the circumstances.

For reasons which will be apparent from the foregoing grounds 2 and 3 are, in my view, not made out. 

Grounds 1 and 4 are interrelated and together with ground 5 require further consideration.  On 14 November 1995 an indictment was presented against the appellant, he was legally represented as he was at subsequent hearings.  The record of what occurred on those occasions is not particularly satisfactory but seems that in April 1996 the trial was given a number one listing for the sittings commencing Monday 24 June.  It was not suggested to the judge that the listing created difficulty, for example, that the defence might not be ready for a trial.  It should be noted that the trial judge was not involved in this or any subsequent hearings prior to the trial.

At some time apparently between 20 June and 5 July 1996 the solicitors who had up until then been acting for the appellant were excused from further involvement in the matter.  The circumstances in which this occurred subsequently became controversial.  The matter came on again on Friday 5 July 1996, apparently for the purpose of the appellants seeking an adjournment of the trial which had by then been fixed to commence on Monday 8 July.  The appellant was represented by a new counsel instructed by fresh solicitors for the limited purpose of seeking an adjournment of the trial.  The judge was told that there were three difficulties with respect to the trial commencing on the Monday.  The first of these related to the availability of telephone records.  In the event these became available and there is ultimately no suggestion of  disadvantage in respect of their late availability.  Secondly, there is a complaint about the late availability of transcript of an interview with Chen.  As I have already said, there is no occasion to consider that the appellant was disadvantage by Chen’s not giving evidence at the trial.  The third and apparently most pressing issue related to the difficulty in retaining counsel who would be available to appear in a trial commencing on Monday 8 July.  In this context the judge was apparently informed to the effect that the appellant had shortly before dismissed what the judge described as a “senior experienced counsel” and that the arresting officer, who was described as an essential witness, was leaving Australia on 1 August and would not be returning until some time in March 1997.

The appellant put in issue the circumstances in which counsel’s retainer was terminated.  The appellant denies having “sacked” counsel but suggested that counsel was unable to accept the brief because of a clash of commitments.  It is not inconceivable that the appellant was given advice which he did not find acceptable.  The appellant supplied the listing judge with a tape recording the appellant had made with conversation between him and his previous solicitor on 2 July.  This Court was provided with what purports to be a transcript of that recording but that does not seem to have been put before the judge below.  If this transcript is accepted there was a discussion of what purports to be a letter dated 1 July 1996 by the appellant to his former solicitors apparently as a consequence of their withdrawal. 

In the letter the appellant urgently sought advice on arrangements to obtain fresh counsel and stated his understanding that “a substantial amount of trial preparation” for the appellant’s defence had not been finalised.  The appellant’s material also contains what purports to be a copy of a letter of 2 July to the solicitors in which the appellant refers to a conference with the solicitors and counsel and asks to be advised in respect of the number of matters relating to trial preparations.

 According to the transcript of the tape recording the solicitor on a number of occasions stated that the witnesses referred to in the appellant’s correspondence were not relevant, that counsel had said they were not relevant and that the appellant had been informed of this.  The solicitor was concerned that he was being set up for blame in the event that the appellant was convicted, a not entirely unjustified apprehension.  It also showed that the solicitor indicated that, having regard to the low level of legal aid funding, he could not be expected to expend a great deal on preparation for trial.

The outcome of the application was that the trial was adjourned from Monday the 8th to Wednesday the 10th.  Counsel in effect reserved the appellant’s position if counsel could not be briefed for the trial and be in a position to adequately represent the plaintiff at the trial commencing on the 10th.

The trial came on 10 July.  The appellant was represented by fresh counsel instructed by the same solicitors who instructed on the 5th.  An application for an adjournment based on Chen’s not being available was refused.  Counsel stated that he was not in a position to say whether or not Chen was an important witness and the trial judge remarked that the defence had let the opportunity slide to take a statement from Chen.  The trial was adjourned to commence on the following day and it did.

At the commencement of the trial counsel informed the trial judge that he was ill, was able to commence the trial but may have difficulty in continuing particularly if his voice failed.  There was no further application for adjournment and counsel did not seek any accommodation on account of his indisposition during the course of the trial or renew any application for an adjournment.

It follows from what has been said that it has not been demonstrated that the appellant’s trial miscarried on account of the refusal of an adjournment.

It will be recalled that the fifth ground of appeal is that the trial miscarried by reason of a combination of errors by counsel for the appellant during cross-examination and re-examination of witnesses which are said to have “denied (the appellant) the granting of a mistrial”.  It was part of the Crown case that the appellant had used the word “persuade” to Franks when he initially retained him to approach Singleton.  The appellant denied this but Franks was not cross-examined on that basis.  This was due to what was accepted as an oversight on the part of counsel for the appellant.  The appellant was cross-examined with appropriate vigour about his evidence to the effect that he had not used the word “persuade” when speaking to Franks.  He maintained that he had not in the face of a suggestion that his claim that “persuade” was not used was in effect a recent fabrication.  The appellant also maintained that he was not aware that Franks had made any threatening phone calls to Singleton at any stage.  By oversight this was not put to the witness by counsel for the defence.

After the conclusion of the evidence and before addresses, the trial judge raised with counsel in the absence of the jury that it had not been put to Franks that the appellant had not used “persuade” to Franks.  The Crown prosecutor indicated that she intended to rely on the failure in addressing the jury.  Counsel for the appellant stated that the omission was an oversight on his part as was the other matter mentioned.  Consideration was given to whether the appellant ought to be recalled to clarify the matter (it doesn’t seem to have been suggested that Franks ought to have been but there is no reason for concluding he could not have been).  This was not done.

The outcome of this debate was that the case then proceeded on the basis that the prosecutor would not mention or make any submissions based on it not having been put to Franks that “persuade” was not used.  The appellant’s counsel concurred in this course.  It seems that addresses proceeded on the basis of whether “ask” or “persuade” was used was a jury question.

Two other incidents were raised but counsel told the judge that his conduct of the case in respect of them was in accordance with his instructions and there was no oversight in his part.

The question is whether, in the circumstances, counsel’s oversight deprived the appellant of a significant possibility of acquittal.  As I said earlier it was a strong Crown case.  No lawful basis is shown for setting aside the judgment or the warrant to enforce it, this was reflected in “qualifications” which attracted the applicant to engage Franks.  It is improbable that the jury would have accepted that the appellant would not have known of threats by Franks by the time of the phone call the contents of which were the subject of the second oversight by counsel.  That advantage of the opportunity to recall the appellant was not taken is understandable in this context, it is unlikely to have helped.  I am not persuaded that any basis has been shown for interfering with the verdict.

The sentence imposed was effectively for three years.  None of the sentences to which the Court was referred can be said to be comparable but are consistent with the view that the sentence imposed was within the range of a sound sentencing discretion.  There were some mitigating features, the applicant had no previous convictions and it was contended had assisted the administration of justice by giving evidence in the Fitzgerald Inquiry.  He might be expected to have a hard time in jail because he was a former police officer and his career as a private investigator was at an end because of his convictions.  As against these considerations, the appellant was a former police officer and a private investigator who should have been aware of the seriousness of the offences which he committed.  The offences were designed to subvert the legal processes by which Singleton had obtained his judgment and by which he sought to enforce it.  There is no question of remorse. 

In my view the application for leave to appeal against sentence should be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 359 of 1996

Brisbane

Before  Davies J.A

Moynihan J.

Helman J.

[R. v. Shambrook]

THE QUEEN

v.

ROBERT MALCOLM SHAMBROOK

(Applicant)   Appellant

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered 21 October 1997

I agree with the orders proposed by Davies J.A. and with his reasons.