R v White[2023] QCA 66

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 4 March 2020 Mr White was convicted after trial of three counts of extortion (counts 1, 2 and 4) and one count of wilful damage (count 5).  He went to trial with his co-accused Mr Davies who was also convicted of the same counts.
2. [2]
   Mr White appeals against the convictions on counts 1, 2 and 4 on the ground that a miscarriage of justice occurred, because the counts of extortion were bad for duplicity.  He appeals against the conviction on count 5 on the ground that a miscarriage of justice occurred because the jury was erroneously directed about criminal responsibility pursuant to s 8 of the Criminal Code (Qld).

Extortion counts

3. [3]
   The allegation in count 1 was that, in contravention of s 415(1)(a)(i) and (b) of the Code, between 24 April 2014 and 24 July 2014 at Shailer Park Mr White demanded a sum of money without reasonable cause, with intent to gain a benefit for Mr White or others, threatened to cause a detriment to Mr Kaese.  Count 2 was in identical terms, except that the detriment was threatened to be caused to Mr Tuckerman.  Count 4 was in identical terms to counts 1 and 2, except that the detriment was threatened to be caused to Mr Askew.  Each of these three counts was distinguished by the identity of the person against whom the demand was made and the detriment threatened.
4. [4]
   Extensive written particulars for each count had been provided by the prosecution to Mr White’s lawyers before the trial that appeared to be based on paragraphs from the statements of relevant witnesses that were identified in the particulars by reference to the paragraph numbers of those statements.  In fact, the particulars document is better described as a hybrid document combining particulars of the counts with the evidence that the prosecution anticipated would prove the respective counts without necessarily distinguishing between the facts that the prosecution was seeking to prove and the evidence by which it was seeking to prove them.  The particulars document was therefore not provided to the jury.  It was used as the framework or reference for the prosecution case at the trial.
5. [5]
   The prosecution relied at the trial on the principles derived from Tripodi v The Queen (1961) 104 CLR 1, 7 to attribute to Mr White statements made by Mr Davies and/or Mr Bougoure.  There was no challenge on the appeal to the application of Tripodi or to the trial judge’s directions to the jury based on Tripodi.
6. [6]
   It is apparent from the particulars document and the prosecutor’s address to the jury that there was some confusion on the prosecutor’s part during the trial between reliance on the Tripodi principle for the purpose of the admissibility of evidence in the case against Mr White and the basis on which criminal responsibility for an offence is determined under the Code.  The particulars document also suffered from the defect of describing the primary basis for criminal responsibility of Mr White for each of the counts as “joint criminal enterprise” on the basis that Mr White and Mr Davies were principal offenders in that they were part of a joint criminal enterprise with Mr Bougoure to extort money from each complainant,  despite the fact that “joint criminal enterprise” is a common law concept and is not the basis for criminal responsibility under the Code: L v Western Australia (2016) 49 WAR 545 at [41]‑[43] and R v Quagliata [2019] QCA 45 at [17].
7. [7]
   Before the jury returned their verdicts, the trial judge had referred Quagliata to the prosecutor and trial counsel when working out the response to a jury question seeking the definition or clarification of “joint criminal enterprise”.  The redirection that was given explained that it had been used as a shorthand way of defining the prosecution case that all three co-offenders were principal offenders in the crime of extortion.  There was no challenge at the trial or on the appeal to the use that had been made by the prosecutor throughout the trial of joint criminal enterprise as one way to describe the criminal responsibility of Mr White for each of the counts and the adoption of that description by the trial judge at various stages of the summing up until the redirection was given.  There was also no challenge on the appeal to the directions given by the trial judge in respect of s 7(1)(a) of the Code to the extent that the directions may not have complied with O'Dea v Western Australia (2022) 273 CLR 315 at [30] and [67]‑[68].

Summary of the relevant facts

8. [8]
   It is necessary to set out a summary of sufficient facts for the purpose of dealing with the issue of duplicity in respect of the extortion charges.
9. [9]
   Mr Kaese, Mr Tuckerman, Mr Levai and Mr Askew who gave evidence at the trial were at, or in the vicinity of, the front yard of Mr Bougoure’s house in April 2014 when Mr Bougoure was assaulted (the incident).  The visit to Mr Bougoure’s house had commenced from Mr Kaese’s residence.  About a week later, Mr Askew exchanged messages with Mr White which resulted in Mr White’s assertion that he needed to see Mr Askew about an incident in which four or five persons went to Mr Bougoure’s house and assaulted Mr Bougoure with baseball bats and knuckle dusters.  Mr White described it as a “dog act” and invited Mr Askew around to his house to discuss it.  Mr Askew went to Mr White’s house.  Mr White repeated the description of the event and said that he wanted (or Mr Bougoure wanted) $5,000 which was $1,000 from each participant on the basis there were five participants and the money was to be paid within the week.  If it was not paid within the week, Mr White said “15 c**ts were going to run through [Mr Kaese’s house]” and they would do “whatever they wanted to do until they felt satisfied”.  This demand made directly by Mr White in person to Mr Askew will be referred to as “the first demand”.  It encompassed both the demand and threat to Mr Kaese.  At most, it was a demand only and not a threat in respect of Mr Tuckerman and Mr Askew as members of the group present at the incident for $1,000 each, as there was no evidence of any detriment threatened by Mr White in that conversation to either Mr Tuckerman or Mr Askew as members of Mr Kaese’s group.  Mr Askew said in cross-examination that he was never threatened personally by Mr White in this conversation and there was no threat to him.  According to Mr Askew’s evidence, Mr Kaese had gone overseas within a couple of weeks of this conversation between Mr White and Mr Askew.
10. [10]
    Messages were exchanged between Mr White and Mr Askew on 7 and 9 May 2014.  On 7 May 2014, Mr White asked Mr Askew whether he had caught up with “old mate” whom the jury were asked to infer was Mr Kaese.  Mr Askew responded that he had spoken with him before Mr Kaese went overseas and “he knows the deal but haven’t been told what do is or anything”.  Mr White asked Mr Askew on 9 May 2014 when Mr Kaese would be back.  Mr Askew responded possibly in a week and stated he had not spoken to him.
11. [11]
    On 1 June 2014 Mr Tuckerman was at the Boundary Hotel when Mr Davies and Mr Bougoure arrived at the hotel. Mr Tuckerman was spoken to by Mr Davies who asked Mr Tuckerman if he knew anything about the altercation between Mr Kaese and Mr Bougoure.  Mr Tuckerman responded affirmatively and Mr Davies then said there was going to be a price that Mr Tuckerman had to pay.  Immediately after that exchange, Mr Bougoure approached Mr Tuckerman and Mr Davies and asked whether Mr Tuckerman had $1,000 to give Mr Bougoure.  Mr Tuckerman responded negatively and Mr Davies stepped between them and said to Mr Bougoure not to hit Mr Tuckerman, as they were going to sort this out.  There was an implied threat of violence by Mr Bougoure in this confrontation with Mr Tuckerman if he did not pay for the incident.  Mr Bougoure stormed off.  Later Mr Bougoure went up to Mr Tuckerman at the hotel and said that security was looking for him.  Mr Davies went with Mr Tuckerman as he walked towards the security and spoke on his behalf.  Mr Davies told Mr Tuckerman not to tell the police “about this”.  For ease of reference, the demand and threat made in the conversations of Mr Davies and Mr Bougoure with Mr Tuckerman at the Boundary Hotel will be referred to as “the second demand”.
12. [12]
    On 6 June 2014 Mr White sent a text to Mr Davies asking him to chase up Mr Kaese.  Mr Davies responded that he would do so that evening.
13. [13]
    When Mr White next asked Mr Askew whether Mr Kaese knew what the deal was, Mr Askew told him that Mr Kaese was overseas and that he would let him know when he had spoken to him on his return. After Mr Kaese had returned from overseas and Mr White had followed up Mr Askew about contacting Mr Kaese, Mr Askew communicated with Mr Davies over Facebook.  Mr Askew was not precise about the timing of his conversations with Mr Davies, but gave the following evidence in chief (which will be referred to as “the Askew Facebook conversation”):

“Okay. And what about – was that it or was there further conversations, or - - -?---There was some further conversation down the track, along the lines of – he thought I’d lied to him and made him look like a fuckwit, so because of that, something had to be arranged for him in the sort of money, because I supposedly lied to him.

Okay. And do you recall – was this a telephone conversation or a text message conversation?---This was on Facebook.

Okay. Now, can you tell us exactly what he said in this conversation?---Pretty much that, ‘You lied to me and made me look like a fuckwit. We need to catch up so something can be arranged and sorted for me’.

Okay. And was there any comment about what needed to be arranged and what would happen if it wasn’t?---That if something wasn’t arranged, then 15 c**s would go through their house.

Through their house [indistinct] anyone specific’s house?---Not anyone specific’s, no. Just 15 c**s will go run through their house.”

14. [14]
    On 12 June 2014 Mr Kaese contacted Mr Davies via Facebook and they arranged to meet to discuss the incident between Mr Kaese and Mr Bougoure.  When Mr Kaese tried to defer the meeting, Mr Davies messaged that he could not defer, as he had been told the matter needed to be sorted “ASAP”.  During that meeting at the Cactus Jack restaurant, Mr Davies told Mr Kaese that he needed to pay $5,000 and Mr Kaese responded that he could not afford $5,000 but could probably come up with $1,000.  In his evidence, Mr Kaese said that he had been previously told by Mr Askew that he owed $5,000 to Mr White and understood that it related to the incident at Mr Bougoure’s house.  This demand at Cactus Jack made by Mr Davies of Mr Kaese will for ease of reference be referred to as “the third demand”.
15. [15]
    On 14 June 2014 a couch and surfboard belonging to Mr Kaese were set alight at the address at which he was living at the date of the incident.  He had moved out shortly before the damage.
16. [16]
    Mr Kaese and Mr Davies discussed the payment in the following days via text.  They met again on 18 June 2014, when Mr Davies told him that Mr White had agreed that $2,000 would be sufficient.  This will be referred to for ease of reference as “the fourth demand”.  On 24 June 2014 Mr Kaese handed $1,000 to Mr Davies.  They met again on 1 July 2014 when Mr Kaese handed a further $1,000 to Mr Davies.
17. [17]
    On 4 July 2014 Mr Bougoure contacted Mr Levai and that conversation had been recorded and was played to the jury (the 4 July conversation).  Mr Bougoure wanted to catch up with Mr Levai.  Mr Levai stated that he thought that Mr Kaese had sorted the matter out.  Mr Bougoure responded that Mr Kaese had sorted nothing out and that it was up to Mr Levai to make something work.  Mr Levai said it was Mr Kaese who had hit Mr Bougoure and, although Mr Levai was there, he did not hit Mr Bougoure.  Mr Levai said that Mr Tuckerman was there at the incident.  Mr Bougoure asked Mr Levai to meet him and to try to make something happen.  Mr Bougoure also wanted Mr Levai’s help to get into the water truck business.  Mr Bougoure said that Mr Kaese was in trouble, as was Mr Kaese’s cousin (Mr Tuckerman).  Mr Bougoure referred to his mate, “the big fella”, which the jury was asked to infer was a reference to Mr White.  Mr Bougoure also said Mr Askew was in trouble, if it was his ute at the incident.  Mr Levai did not want to meet Mr Bougoure, as Mr Levai was in debt.  Mr Bougoure told Mr Levai that Mr Levai had nothing to worry about from Mr Bougoure.
18. [18]
    On 10 July 2014 Mr Bougoure and another person attended on Mr Tuckerman’s house in such a way to cause Mr Tuckerman to flee next door.  Mr Tuckerman heard “three bangs” and after the two men left returned to see that the windscreen of his utility had been smashed.  That was the basis for the wilful damage charge (count 5).  It was also evidence that confirmed the threat that had already been made to Mr Tuckerman if he did not pay for his role in the incident, he was at risk of personal violence or damage to his property.
19. [19]
    Following that event at Mr Tuckerman’s house, Mr Bougoure spoke with Mr Levai on the same day.  That conversation had been recorded and was played to the jury.  In that conversation Mr Bougoure told Mr Levai that Mr Tuckerman owed him a “buck” and that Mr Kaese “owes another one” as did all the other people “who were there”, except for Mr Levai.  Mr Levai told Mr Bougoure that Mr Askew had driven the ute on the day of the incident.  Mr Bougoure said that Mr Levai could get $1,000 off Mr Askew too.  Mr Bougoure indicated that it was taking the group too long and if he ran into any of the group there would be consequences.  Mr Bougoure also indicated that nothing would be done to Mr Levai and that he had nothing to worry about.  This will be referred to for ease of reference as “the fifth demand”.
20. [20]
    Mr Askew had an exchange of Facebook messages with Mr White on 16 July 2014.  Mr Askew commented that he “thought everything was all sorted” to which there was no response from Mr White.
21. [21]
    On 17 July 2014 there were a couple of conversations between Mr Levai and Mr Bougoure which were recorded and played to the jury.  Mr Levai reported that he had spoken to “the boys” and that he had some of the cash but did not have it all yet.  It appeared that Mr Bougoure was unaware that Mr Kaese had paid $2,000 to Mr Davies.  He said he would check with Mr Davies and with Mr White.  It was an admitted fact that CCTV footage from Carindale shopping centre for 17 July 2014 showed Mr White and Mr Bougoure entering the shopping precinct in Mr Bougoure’s vehicle and walking throughout the centre.
22. [22]
    On 23 July 2014 Mr Levai met Mr Bougoure and gave him $3,000.

Section 415(1) of the Code

23. [23]
    The relevant provisions of s 415(1) of the Code are:

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

1. (a)
   with intent to—

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

2. (ii)
   …; and

2. (b)
   with a threat to cause a detriment to any person other than the demander;

commits a crime.”

24. [24]
    From the above terms of s 415(1) of the Code, the offence of extortion is complete when the demander:

3. (1)
   with intent to gain a benefit for any person (whether or not the demander);

3. (2)
   without reasonable cause;

3. (3)
   made a demand; and

3. (4)
   with a threat to cause a detriment to any person other than the demander.

25. [25]
    It is the making of the demand in the applicable circumstances of s 415(1) which includes the threat to cause a detriment to another person that is the essence of the offence of extortion and not the payment of the money or the conferral of the benefit that is otherwise the subject of the demand.  It is a single offence committed when the elements of the offence are satisfied.  It is not an offence involving continuing conduct: Walsh v Tattersall (1996) 188 CLR 77, 91.
26. [26]
    The particulars of the offence of extortion must therefore identify the operative demand and the operative threat that are capable of constituting the offence of extortion.  A distinction can be drawn between evidence of the demand or the threat such as is given by the person to whom the demand or threat was made and evidence of subsequent conduct and conversations which confirm or repeat the earlier (and operative) demand or threat and are relevant for proving the operative demand and threat.
27. [27]
    Without endeavouring to characterise the demands made subsequent to the first demand (as to whether they were evidence referable to the proof of the first demand or constituted new demands or threats), it is necessary to understand how the prosecution ultimately addressed the jury on the evidence that was relevant to each of the extortion counts.

Count 1

28. [28]
    The prosecution case against Mr White for count 1 where the demand and the threat were directed to Mr Kaese to cause detriment to him was based on the first demand.
29. [29]
    The prosecution also relied on the third demand and the Askew Facebook conversation for the purpose of proving count 1.  The prosecution lastly relied on the threat directed to Mr Kaese in the 4 July conversation which led to the fifth demand that also was included a demand and threat against Mr Kaese.  The prosecution asserted that both Mr White and Mr Davies were principal offenders under s 7(1)(a) of the Code on the basis they both made demands of Mr Kaese and threatened to cause him detriment and had an alternative case against Mr Davies under any of paragraphs (b), (c) or (d) of s 7(1) of the Code.

Count 2

30. [30]
    The prosecution case at trial for count 2 where the demand and the threat to cause detriment was to Mr Tuckerman was based on the first demand in addition to the second demand.  Even though there was no threat directed at Mr Tuckerman as part of the first demand, the prosecution also relied on the demand that there was a price he had to pay for the incident and the threat to cause detriment to him that was implicit in the conversations and the confrontation by Mr Bougoure and the warning to Mr Tuckerman not to contact the police all of which constituted the second demand.  The prosecution case also relied on the 4 July conversation in which a threat was made by Mr Bougoure in respect of Mr Tuckerman and the conversation between Mr Bougoure and Mr Levai in which the fifth demand was made and Mr Tuckerman was identified by Mr Bougoure as owing $1,000.
31. [31]
    Apart from relying on s 7(1)(a) of the Code in the case against Mr White and Mr Davies as principal offenders, the prosecution had an alternative case against Mr White under s 7(1)(d) based on Mr White’s counselling or procuring Mr Davies and Mr Bougoure to extort all the men who attended the incident.  The prosecution’s alternative case pursuant to s 8 of the Code was that both Mr White and Mr Davies actively participated in the common unlawful purpose of extorting money from Mr Kaese and others with Mr Bougoure and that it was a probable consequence of that common unlawful purpose that Mr Tuckerman would also be extorted.

Count 4

32. [32]
    The prosecution case at trial for count 4 where the demand and the threat to cause detriment was to Mr Askew was originally particularised as being based on the first demand and the fifth demand.  The prosecution case on count 4 outlined in the prosecutor’s address to the jury was based on the threat to Mr Askew by Mr Bougoure in the 4 July conversation and the threat and demand directed to Mr Askew included in the fifth demand.  The prosecution also relied on the threat against Mr Askew in the Askew Facebook conversation and the consistency between the threat in the Askew Facebook conversation and the threat by Mr White made against Mr Kaese in the first demand.
33. [33]
    In ruling on a no case submission at the end of the prosecution case at the trial, the trial judge proceeded on the basis that there was no demand made by Mr White against Mr Askew as part of the first demand, as Mr White did not know that Mr Askew was present at the incident and Mr Askew did not feel threatened by Mr White, because the first demand was directed to Mr Kaese.  (The fact that Mr Askew did not feel threatened by Mr White did not alter the fact that the first demand did include a demand that extended to Mr Askew on the basis he was a member of the group at the incident, even though Mr White was ignorant of that at the time.)  The trial judge observed that in the Askew Facebook conversation, the threat was to cause a detriment to the occupants of Mr Kaese’s house.  The no case submission was unsuccessful in respect of count 4 on the basis that in the conversations taped between Mr Bougoure and Mr Levai, there was a demand to get $1,000 from Mr Askew and a threat to cause detriment to him.
34. [34]
    Apart from relying on s 7(1)(a) of the Code for the case that Mr White and Mr Davies were principal offenders, the prosecution’s case against Mr White for count 4 relied on s 7(1)(d) of the Code on the basis that Mr White counselled or procured Mr Bougoure to extort all the men who attended the incident.  An alternative case was also relied on for count 4 based on s 8 of the Code as the assertion that it was a probable consequence of the common unlawful purpose of Mr White, Mr Davies and Mr Bougoure to extort Mr Kaese and others that Mr Askew would also be extorted.

Were counts 1, 2 and 4 bad for duplicity?

35. [35]
    Although the subject matter of s 567 of the Code is joinder of charges, s 567(3) reflects the common law rule against duplicity which requires that one count should not charge an accused with having committed two or more separate offences: Walsh v Tattersall at 104.  Section 567(3) provides:

“Where more than 1 offence is charged in the same indictment, each offence charged shall be set out in the indictment in a separate paragraph called a count and the several statements of the offences may be made in the same form as in other cases without any allegation of connection between the offences.”

36. [36]
    The issue pursued on the appeal on behalf of Mr White was that there was latent duplicity or a latent ambiguity in each of the extortion counts that was not apparent from the terms in which each of the extortion counts was expressed but was implicit as the particulars of each count relied on conduct capable of being the subject of more than one offence.
37. [37]
    At the commencement of the summing up, the trial judge summarised the prosecution case against Mr White as follows:

“Now, the Crown case is that White, Davies and Bougoure were principal offenders in that they were part of a joint criminal enterprise to extort money from the complainants as a result of the complainants’ behaviour in assaulting and injuring Bougoure. In relation to White, the Crown says that this can be shown by the initial demand for money with the threat to damage the house of [Kaese] and the occupants if they were home, by his contacting Davies and Bougoure and by the messages on the 6^th of June to Davies asking him to meet up with [Kaese], and the contact on the 17^th of July with Bougoure at Carindale.”

38. [38]
    The trial judge also summarised Mr White’s position that he accepted he made a demand for money but did not accept that he made a threat and that any demand he made was for compensation for the injury caused to Mr Bougoure.  The trial judge also referred at the outset of the summing up to Mr White’s contention that he was not involved in any demands for money from anyone other than Mr Kaese.
39. [39]
    The trial judge then gave the Tripodi direction including:

“However, if after a thorough examination of all the evidence you are satisfied that they are part of a joint criminal enterprise, then you can use the evidence of acts done by and things said by Bougoure as evidence against them of the joint criminal enterprise, and of acts done and things said by each other [Mr White and Mr Davies] as evidence against both.”

40. [40]
    The trial judge’s instructions to the jury in respect of each count generally reflected the prosecution’s case set out in the particulars.  The trial judge commenced that part of the summing up dealing with the basis of criminal responsibility for the charges by referring to the “main” Crown case as “all three were in it together” and they were all working together to get the money from Mr Kaese and/or the others and they were making threats as a result.  The trial judge stated as follows:

“The Crown case is that both White and Davies were principal offenders in that they were part of a joint criminal enterprise with Bougoure to extort money from the complainants. That is that they were all three trying to get money from [Kaese] and/or others with threats to harm them or at least cause damage to their property. Alternatively, both Davies and White, the Crown says, were making threats and demands to [Kaese], or, alternatively, Davies was aiding White in the criminal offence by chasing up [Kaese] and collecting the money.”

41. [41]
    The primary judge then dealt at some length with the alternative case against Mr Davies on count 1 based on his aiding Mr White by traversing the evidence of the contacts between Mr Davies and Mr Kaese including the third and fourth demands.  As the prosecution case did not rely on s 8 of the Code for count 1, no directions were given about s 8 in respect of count 1.
42. [42]
    The trial judge pointed out in relation to count 1 that the evidence in relation to Mr White was “concentrated around Askew”, the texts from Mr White to Mr Askew on 7 and 9 May 2014, and the text of 6 June 2014 from Mr White to Mr Davies.  The trial judge then read out the evidence given by Mr Askew about his communications with Mr White and Mr Davies in relation to the matter, including the first demand, the Askew Facebook conversation, and the failure of Mr White to respond to Mr Askew’s Facebook message on 16 July 2014.  The trial judge also read out the evidence elicited in cross-examination of Mr Askew.  This recitation of the evidence was directed only at the demand and threat made by Mr White against Mr Kaese in the first demand.
43. [43]
    The trial judge then moved on to count 2 where the complainant was Mr Tuckerman and described the prosecution case as “the demand was for the $5,000 essentially from the group” and the prosecution’s case was that the inference could be drawn that anyone in the group who had been involved in the assault was liable for some contribution, as Mr White had said $1,000 for each person.  The trial judge then read out the evidence relating to the second demand and the evidence that Mr Tuckerman gave in cross-examination in relation to the second demand and explained the prosecution relied on the second demand as pointing to Mr Bougoure’s being part of the joint enterprise to extract money from the complainants.  The trial judge referred to the recorded conversation between Mr Levai and Mr Bougoure on 10 July 2014 and after quoting what Mr Bougoure said in that conversation about Mr Tuckerman described that as “So that is the demand and the threat”.  The trial judge read out passages from the other recorded conversations between Mr Levai and Mr Bougoure on 17 and 21 July 2014.
44. [44]
    The trial judge then summarised the prosecution case in relation to count 2:

“In relation to the Tuckerman incident, the Crown says that the demand was made by White to Askew that he wanted the $5000, then by Davies and Bougoure to Tuckerman at the Boundary Hotel, and then by Bougoure to Levai that Tuckerman had to pay money. And the detriment was the threat that people will go through [Kaese’s] house and do whatever they wanted in the house; Davies telling Tuckerman that there was a price on his head, or there was a price to pay, I think was what he said, and warning him not to go to the police; the items at [Kaese’s] house being set on fire; the threats by Bougoure in the telephone conversation on the 4^th of July and later and the smashing of the windscreen of the vehicle.

The intent was to obtain the money from Tuckerman, and the Crown case is that White and Davies were both principal offenders in that they were part of this joint criminal enterprise with Bougoure to get the money from the complainant and that they had threatened illegal activity, therefore, there was no reasonable cause. Or, alternatively, that both White and Davies were making demands and threatening to cause a detriment, or, alternatively, that Davies and Bougoure were assisting or aiding White by effectively asking Tuckerman for money. I will not go through the factors of the aiding again. What has to be proved, I have already done that with the previous count.”

45. [45]
    The trial judge then outlined the alternative case against Mr White and Mr Davies based on s 8 of the Code where the common unlawful purpose was asserted to be extorting money from Mr Kaese with Mr Bougoure and it was a probable consequence of that common unlawful purpose that Mr Tuckerman would also be extorted.  The trial judge explained:

“So the Crown says that the unlawful purpose was to gain money from [Kaese] and/or the other people involved in the assault on Bougoure; that it was 5000 in total, 1000 for each person said to be involved in the assaults; that if the money was not paid, that it was intended that a number of people, 15 perhaps, would go through [Kaese’s] house and do whatever they wanted in the house; and that that was demonstrated – or, that the seriousness of that threat was demonstrated by the burning of the couch and the surfboard.”

46. [46]
    After completing the directions on s 8 of the Code, the trial judge summarised the “main” prosecution case again:

“Their main case is that they were all involved in extorting these people together. But if you are not satisfied of that beyond reasonable doubt and you have got to consider this, then you consider whether they had a common purpose of extorting [Kaese] and then, once they did not get their 5000 from [Kaese], they turned their attentions to the others, and that that was a probable consequence of their initial desire to get 5000 in total from the people who were involved in the assault, starting with [Kaese] but, alternatively, going down the line, as it were.”

47. [47]
    The trial judge then turned to count 4 and, consistent with the ruling that the trial judge had made on the no case submission, described it as resting on the conversation between Mr Bougoure and Mr Levai on 10 July 2014, when Mr Levai said that Mr Askew was driving the ute and Mr Bougoure responded to the effect that he wanted $1,000 from Mr Askew too.  The trial judge explained that the prosecution case in respect of count 4 was put on the same basis as for count 2 that they were “all in it together” and were all principal offenders and it was all part of the scheme to get the $5,000 one way or the other.  The trial judge explained that if the jury were not satisfied that Mr White was a principal offender together with Mr Davies and Mr Bougoure, the prosecution case in reliance on s 7(1)(d) of the Code was that Mr White “at least got Bougoure to help get the money from the extra $3,000 from the remaining men because it was always 5000 to start with”.  The trial judge then repeated the further alternative case that both Mr White and Mr Davies participated in a common unlawful purpose to extort to Mr Kaese and it was a probable consequence of the common unlawful purpose that they would chase the remaining $3,000 from the others.
48. [48]
    The trial judge noted Mr White’s defence in relation to count 2 that Mr Bougoure was “on a frolic of his own” in demanding money through Mr Levai and that was not a probable consequence of the initial demand to get money from Mr Kaese and, further, that Mr White was not involved in anything to do with counts 2 and 4.
49. [49]
    Whether the criminal responsibility of Mr White is considered under s 7(1)(a), s 7(1)(d) or s 8 of the Code, the demand and threat that were the essential elements of each count had to be specifically identified for the jury.
50. [50]
    On the hearing of the appeal, Mr White’s counsel focused first on count 2, as it is most apparent from the trial judge’s summing up that there were at least three separate demands made in relation to Mr Tuckerman being the first demand, the second demand and the fifth demand.  There was no threat made against Mr Tuckerman until the second demand and there was a non-specific threat made in the 4 July conversation without a demand.  The threat associated with the fifth demand was a more direct and specific threat to Mr Tuckerman (as one of the identified members of the group) that there would be consequences for any of the group if the payment that was demanded of $1,000 each was not made.   It is not necessary to consider the threat made against Mr Tuckerman in the 4 July conversation. The fifth demand was not merely a repeat or reminder of the demand made against the men in the group at the incident which was part of the first demand that could combine with the demand and the threat made during the second demand to constitute the offence of extortion. The fifth demand amounted to a separate demand and threat that was capable of constituting the offence of extortion.
51. [51]
    The problem with the case conducted by the prosecution at the trial was that all relevant conduct and conversations between the dates specified in each of the charges was treated as amenable to accumulation to prove the charges.  That was essential where the demand was made on one occasion and the threat that related to that demand was made on another occasion, but it was not appropriate when there was more than one set of a demand and related threat put before the jury in relation to the same complainant in connection with one count.  This approach of relying on more than one set of a demand and related threat was inconsistent with the nature of a charge under s 415(1) of the Code which creates a single offence and not an offence that can be regarded as continuing in nature.  The effect of the directions given by the trial judge in relation to the prosecution case for count 2 was that there were at least two sets of demands and threats which could each support a verdict of guilty on count 2 against Mr White.  That meant that count 2, as framed on the indictment, contravened s 567(3) of the Code.  It was reasonably possible that the jury found Mr White guilty either on the basis of the combination of the first and second demands or on the basis of the fifth demand.
52. [52]
    There is also a similar issue relating to count 4 even though the trial judge left count 4 to the jury on the basis of the fifth demand.  The prosecution relied on the first demand to the extent it revealed a demand to Mr Askew as a member of the group of men who were at the incident.  There was also a demand for money made by Mr Davies to Mr Askew in the course of the second demand.  There was no related threat against Mr Askew until the 4 July conversation.  That was a set of a demand and threat that was capable of constituting the offence of extortion.  When it was revealed by Mr Levai to Mr Bougoure that Mr Askew was driving the ute at the incident on 10 July 2014, the specific threat and demand was made against Mr Askew that was incorporated in the fifth demand.
53. [53]
    The submission on behalf of Mr White on the appeal was that there was duplicity in respect of count 1 that was not as “starkly obvious” such as for count 2.  For the purpose of the argument, Mr White’s counsel relied on the Askew Facebook conversation as another demand and threat to Mr Kaese after the first demand.  It was left to the jury on the basis that it was another demand, but arguably it was more consistent with being a follow up on the first demand insofar as the demand and threat incorporated in the first demand was directed to Mr Kaese, rather than a separate demand and threat that by itself could constitute the offence of extortion.  In specifically addressing count 1, the trial judge did not remind the jury of the conversation between Mr Levai and Mr Bougoure but the trial judge did remind the jury of the fifth demand by reading out from the transcript of the relevant conversations between Mr Levai and Mr Bougoure which revealed a demand and threat against Mr Kaese that was different from the first demand.  It is also relevant that there was no difference in the quality of the evidence of the fifth demand that was in the recorded conversations between Mr Levai and Mr Bougoure insofar as the evidence related to the further demands and threats directed to each of the three extortion complainants.  In relation to count 1, there was therefore latent duplicity revealed by the evidence at the trial of the first demand and the fifth demand insofar as they both related to Mr Kaese.
54. [54]
    The latent duplicity of the extortion counts must not have been apparent to Mr White’s counsel at trial who failed to raise the issue at the trial.  It was not suggested on the appeal that there was any forensic reason for that failure on the part of the trial counsel.  There was therefore a miscarriage of justice, as the trial proceeded in respect of the extortion counts that were bad for duplicity.  Mr White was entitled to a trial in which each count of extortion was based on a particularised demand and related threat and not a count that purported to cover more than one set of a demand and related threat.
55. [55]
    The respondent did not argue that the proviso should apply.
56. [56]
    Mr White succeeds on the first ground of appeal in respect of counts 1, 2 and 4.

Count 5

57. [57]
    The prosecution case at trial on count 5 was based solely on s 8 of the Code that Mr White and Mr Davies actively participated in the common unlawful purpose with Mr Bougoure that was described in the prosecution’s address to the jury as to extort money from Mr Kaese and the others and that it was a probable consequence of that common unlawful purpose that property associated with Mr Kaese or others who were with him at the incident would be damaged.
58. [58]
    In summing up on count 5, the trial judge stated:

“So if there’s a common unlawful purpose to demand money or extort money from [Kaese] and the others, it is a probable consequence, the Crown says, given that the threat was that there would be property damaged, and in fact there had been property damaged. If you accept that the fire of the couch and the surfboard were related to this, it is a probable consequence that there might be further property damage associated with those demands when Bougoure went around to chase up Tuckerman, to his home and Tuckerman was not there, or Tuckerman ran away at least.”

59. [59]
    The first point raised on the appeal was that the trial judge impermissibly took the issue of whether wilful damage was a probable consequence from the jury with the observation, that if the jury accepted that fires set to a couch and a surfboard were related to the threat that property would be damaged “it is a probable consequence that there might be further property damage associated with those demands when Bougoure went around to chase up Tuckerman”.  There was clearly a slip made by the trial judge in not asking whether it was a probable consequence, rather than stating that it was a probable consequence, or in not making it clear that the observation reflected the prosecution case.  The impugned part of the direction read with the preceding sentence was likely to have conveyed to the jury that the statement made by the trial judge was a recitation of the prosecution case.  If that was the only argument on the second ground of appeal, it is difficult to see in the context of the entire summing up how that slip amounted to a miscarriage of justice.
60. [60]
    There is more substance to the second argument relied on to challenge the conviction on count 5 that the direction suggested the answer to the question of whether the wilful damage was a probable consequence of the extortion of Mr Kaese and the others would be determined by whether the earlier acts of damage to property belonging to Mr Kaese were related to the extortion rather than whether the wilful damage to Mr Tuckerman’s vehicle was a probable consequence of the common unlawful purpose to extort money from Mr Kaese and others.  Of even more significance is the effect on the direction of the latent duplicity of the extortion counts, as the direction on count 5 was linked with the demands and threats made to Mr Kaese and others that preceded the damage to Mr Tuckerman’s vehicle on 10 July 2014 which covered at least the first demand, the second demand and the threat made by Mr Bougoure to Mr Tuckerman in the conversation with Mr Levai on 4 July 2014.
61. [61]
    The prosecutor’s address and the trial judge’s summing up on count 5 linked that count with the extortion counts in such a way that the unfairness of the trial due to the latent duplicity of the extortion counts also tainted the directions on count 5.  There has also been a miscarriage of justice shown in relation to count 5 in circumstances in which the respondent did not seek to rely on the proviso.
62. [62]
    Mr White also succeeds on the second ground of appeal.

Sentence application

63. [63]
    Mr White’s sentence application was to be pursued only if the appeal was successful on some counts and not all.  It is therefore not necessary to consider the sentence application.

Orders

64. [64]
    The orders which should be made are:

1. Appeal allowed.
2. Set aside convictions on counts 1, 2, 4 and 5.
3. New trial ordered on counts 1, 2, 4 and 5.

65. [65]
    McMURDO JA:  I agree with Mullins P.
66. [66]
    BOND JA:  On 4 March 2020, the appellant (Mr White) and his co-accused (Mr Davies) were convicted after a jury trial of three counts of extortion and one count of wilful damage.  Another co-accused (Mr Bougoure) had been charged with the same offences but had pleaded guilty to the offences before trial.
67. [67]
    I have had the advantage of reading in draft the judgment of Mullins P.  For the reasons which follow, I agree with the orders proposed by her Honour.

The rule against duplicity

68. [68]
    The common law rule against duplicity in the formulation of charges against an offender is that no one count of the indictment should charge the defendant with having committed two or more separate offences.^[1]  Although the rule against duplicity derives from the common law, as Mullins P has observed, it is also reflected in the Code.
69. [69]
    Duplicity can be either patent or latent.  The former will be relatively obvious because it will occur when a single count alleges the commission of more than one separate offence.  The latter, as the term suggests, is less obvious.  It will occur when there is no patent duplicity but where the prosecution case as particularised or as sought to be proved at trial reveals conduct capable of being charged as more than one offence answering the charged description.
70. [70]
    There are exceptions to the rule against duplicity and sometimes the dividing line between a charge which is duplicitous and one which is not can be a question of fact and degree.  Thus in R v Chen, Davies JA and Shepherdson and White JJ observed:^[2]

“There are no doubt cases in which, notwithstanding that offences could be charged separately, it is nevertheless permissible and even appropriate to prefer only one charge. One obvious class of such cases is that where the offence may be constituted by continuing conduct.^[3] But also where one act constitutes a number of offences (stealing a number of articles at one time) or where there are a number of similar acts, each constituting a separate offence, but in a short space of time - a flurry of blows, whether with or without a weapon or a succession of shots^[4] - there is, in most cases, little practical advantage in separating them and no loss of fairness to an accused in failing to do so.”^[5]

71. [71]
    The rule against duplicity is a reflection of the fundamental principle that an accused is entitled to know the precise charge being preferred against him or her so that he or she may know what evidence is admissible and what evidence can be held out on the grounds of relevance.^[6]
72. [72]
    But the rule also serves the orderly administration of justice.  In this regard, as Gaudron and McHugh JJ observed in S v The Queen:^[7]

“There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.”

73. [73]
    Breach of the rule has the potential to produce prejudice.  In S v The Queen, Gaudron and McHugh JJ referred to the possibility that a duplicitous charge might result in evidence being wrongly admitted at trial or incorrect directions being given to the jury, or the possibility that a jury, no matter how carefully directed, may reason from the number of offences charged that the accused must be guilty of at least one.^[8]
74. [74]
    In PPP v The Queen,  Redlich JA articulated the purpose of the rule in a discussion which placed it in in the context of a consideration of the importance of proper particulars generally:^[9]

“The starting point is the proposition that for a trial according to law, the accused must be apprised not only of the offence with which they are charged but must have particulars of the act constituting the offence. These particulars are designed to serve a number of important purposes:

3. (1)
   to enable the accused to exercise the right to object to evidence on the ground of relevance;

3. (2)
   to permit the accused to know how the charge might be answered;

3. (3)
   to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;

3. (4)
   to enable the trial judge to instruct the jury properly as to the law to be applied;

3. (5)
   to ensure that there is a unanimity of view by the jury as to a specific act by the accused;

3. (6)
   in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;

3. (7)
   to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.

The first four purposes of particulars reflect the requirement that the accused must be afforded a fair trial. In the joint reasons of Gaudron and McHugh JJ in [S v The Queen] they state that the rule against duplicitous counts rests upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.  If the evidence reveals several possible occasions of offending, and the charge could relate to any one of these, the accused will be forced to defend himself in relation to each and every occasion that arises on the evidence which may fit the description of the act charged.  The rule against latent duplicity, informed by considerations of fairness, is therefore enforced to ensure that the accused knows the ‘particular act, matter or thing alleged as the foundation of the charge’. …”

The breach of the rule against duplicity in the indictment as particularised

75. [75]
    Counts 1, 2 and 4 of the indictment each alleged offences contrary to ss 415(1)(a)(i) and (b) of the Code.  The elements of such an offence are:

    1. (a)
       a demander makes a demand;
    2. (b)
       the demand is made with a particular intent, namely to gain a benefit for any person (whether or not the demander);
    3. (c)
       the demand is made with a threat to cause a detriment to any person other than the demander; and
    4. (d)
       the demand is made without reasonable cause.
76. [76]
    As Mullins P has observed, the offence is a single offence which is committed when those four elements are satisfied.  Or, to put it another way, for the offence to have occurred the Crown must prove the demander made a demand, and that there is a conjunction of the other three elements in relation to that demand.  The offence is not one which involves continuing conduct.
77. [77]
    In the present case, count 1 was pleaded as follows:

“that between the twenty-fourth day of April, 2014 and the twenty-fourth day of July, 2014 at Shailer Park in the State of Queensland, [Mr White], [Mr Davies] and [Mr Bougoure] demanded a sum of money without reasonable cause, with intent to gain a benefit for [Mr White] or others, threatened to cause a detriment to [Mr Kaese].”

78. [78]
    Count 2 was in identical terms except Mr Tuckerman was substituted for Mr Kaese.  Count 4 was also in identical terms except Mr Askew was substituted for Mr Kaese.
79. [79]
    It may be observed that there was no patent duplicity.  Three persons were together identified as having made the demand for a sum of money; with the intent to gain a  benefit; with a threat to cause detriment and without reasonable cause.
80. [80]
    Unfortunately, the particulars revealed a case in which no regard was paid to the rule against duplicity.  It suffices to make this point by reference to the particulars provided in relation to count 2, which were in the following terms (as Mullins P explained the particulars also contained cross-references to various witness statements disclosed to the defence):

“Count 2 – TUCKERMAN

Particulars Extortion - section 415(1)(a)(b), Criminal Code

The ‘demand’ was for the complainant to pay money and was made in the following ways:

The ‘threat to cause a detriment’ was both express and implied and included the following:

The intent was to obtain payment of money – a benefit;

There was no reasonable cause.”

81. [81]
    The particulars revealed that the demand the subject of the count was for “the complainant” to pay money.  Although not actually specified in the document, it was clear enough that “the complainant” was the person to whom the threat had been directed, namely Mr Tuckerman.
82. [82]
    The particulars purported to identify how “the demand” was made.  That was done by identifying four separate occasions in which one or more of Mr White, Mr Davies or Mr Bougoure messaged or had some form of communication with another identified person.  The first and second occasions occurred more than a month apart.  The third occasion comprised a multiplicity of occasions all of which were more than one month after the second.  The fourth occasion occurred almost two months after the second.  Each occasion so identified was joined by “and/or” thereby flagging the intention that reliance was placed on all of the occasions so conjoined, but, in the alternative, also every other possible combination of those occasions.^[10]
83. [83]
    The particulars purported to provide particulars of the threat to cause a detriment.  It did so by specifying that the threat “was both express and implied” and that it included a number of separate listed items, again each of which was joined by “and/or” and with the same consequences.  Each listed item identified a separate occasion in which words or conduct had occurred which were said to amount to a threat.  In most cases the words or conduct were by one of more of Mr White, Mr Davies and Mr Bougoure, although in some cases no person was identified as responsible for the words or conduct.  It will be recalled that for the offence to be committed the demand has to be made “with” the threat.  How the various threats were said to be related to the various demands so as to satisfy that requirement was completely unclear.  But there may have been a multiplicity of ways in which the various combinations of conduct relied on as threats related to the various combinations of conduct relied on as demands.
84. [84]
    Even if the particulars had articulated a proper basis to render Mr White criminally responsible for the conduct of Mr Davies and Mr Bougoure,^[11] the particulars breached the rule against duplicity because it was plain that the particulars did not identify one demand, but identified at least four separate demands.  Even ignoring the exacerbating factor of reliance on multiple possible combinations of demands made on separate occasions and the uncertain relationship of which demand could be said to have occurred “with” which alleged threat, the particulars revealed conduct capable of being charged as more than one offence answering the charged description.
85. [85]
    The particulars utterly failed to serve the purposes which they were required to serve in this regard.
86. [86]
    The same flaws attended the particulars which were provided in relation to counts 1 and 4.

The breach of the rule against duplicity in the case as sought to be proved at trial

87. [87]
    Given the duplicitous nature of the counts as particularised, the potential for the accused to suffer prejudice was high.  It may have been possible for the problem to be cured by the Crown electing to provide further particulars narrowing its case so that duplicity was avoided, or by the trial judge requiring that to occur.  However, the reasons for judgment of Mullins P well demonstrate that the breach of the rule against duplicity in the indictment as particularised continued to characterise the way in which the Crown sought to prove the case at trial and ended up causing unfairness to Mr White.
88. [88]
    I respectfully agree with her Honour’s analysis of the evidence and of the way in which the case was left to the jury.  I respectfully adopt her Honour’s identification of the problem with the case as conducted.  In particular, her Honour’s reasons at [51] identify the nature of the breach of the rule against duplicity and the unfairness caused to the defence in relation to count 2.  Her Honour thereafter identifies how the same problem extended to the other counts.
89. [89]
    I agree with her Honour’s reasons for concluding that Mr White should succeed on the first ground of appeal in respect of counts 1, 2 and 4.

Count 5

90. [90]
    I agree with Mullins P, for the reasons given by her Honour, that Mr White should succeed on the second ground of appeal.