R v Succarieh

This matter concerned the appellant’s appeal against conviction and sentence. The appellant had been convicted of an offence against s 415(1) of the Criminal Code which prohibits the making of a demand, without reasonable cause, with intent to gain a benefit or cause a detriment, and accompanied by a threat to cause a detriment to any person other than the demander. The Court considered whether the qualifier “without reasonable cause” is confined to the demand, or whether it extends also to the making of the threat. Gotterson JA delivered the leading judgment, finding that the phrase extends to the detriment threatened in the course of making the demand.

Fraser, Gotterson and McMurdo JJA

17 November 2017

The appellant was convicted of an offence against s 415(1) of the Criminal Code in a judge-alone trial. [2]–[3]. This matter concerned the appellant’s appeal against conviction and sentence.

Section 415(1) of the Criminal Code relevantly provides:

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

(a) with intent to—

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

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

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

commits a crime.”

The appellant was convicted on a count that the appellant had demanded a sum of money, without reasonable cause, with intent to gain a benefit for a “Mr Masri” and threatened to cause a detriment to the complainant. [2]. The complainant ran a café in Brisbane. [6]. The complainant also had a business arrangement with Mr Masri in relation a fruit shop owned by Mr Masri. [7]. Mr Masri had alleged that the complainant stole stock and cash from the business and consequently owed him at least $50,000. [7]. Mr Masri authorised the appellant to approach the complainant to arrange for the money to be repaid. [7].

The appellant had demanded that the complainant pay $50,000. [8]. It was also alleged that the appellant had made various threats, namely, (i) to take over the complainant’s business, (ii) to bring the demands to the attention of the complainant’s wife and daughter, and (iii) to cause physical injury to the complainant. [8].

The trial judge found the appellant guilty of the offence. There was “no contest” that the appellant made the relevant demand with intent to gain a benefit for Mr Masri. [14]. The trial judge was also satisfied that the demand was made without reasonable cause and that the threats were made. [14]. In respect of the requirement of “reasonable cause” his Honour identified two pathways to this conclusion. First, because there was no admissible evidence of a debt owing, if the appellant believed the debt existed, he did not do so on reasonable grounds. Secondly, even if the appellant made the demand under the honest and reasonable but mistaken belief that the debt was owed, “there was no reasonable cause for the demand as made – that is, with threats of unlawful violence to the complainant and unlawful trespass to his business” (emphasis added). [14].

The appellant appealed his conviction on various grounds, including that the trial judge erred in relation to the element of “reasonable cause” in s 415(1) (“Ground 1”), and the trial judge erred in concluding that the appellant did not have an honest and reasonable belief that the debt was owed and that he was authorised to collect it (“Ground 2”). [16].

Ground 1 concerned an issue of statutory construction, namely, whether the qualifier “without reasonable cause” in s 415(1) is confined to the demand (ie the payment of the money) or whether it also extends to the threats made. [18].

Gotterson JA (with whom Fraser JA, and McMurdo JA on this point, agreed) held that “the scope of the application of the phrase ‘without reasonable cause’ extends to the detriment threatened in the course of making the demand” and “is not limited to a consideration of whether there is reasonable cause for that which is demanded to be done”. [29]. His Honour noted that the appellant’s interpretation appeared “impermissibly to confine the act of making the demand to what is demanded to be done so as to exclude the threat from the former”. [30]. Accordingly, his Honour held that the interpretation adopted by the trial judge was correct and did not involve an error of law. [46].

A further issue which arose in consideration of Ground 1 was the approach taken by the trial judge as to how the “provisions of s 24 of the Code as to honest and reasonable, but mistaken, belief of fact might interact with the requirement in s 415(1) for the absence of reasonable cause for making a demand”. [47]. The appellant submitted that the trial judge had erred in reasoning that “because there was no debt proved, that was determinative of the issue of reasonable cause, subject to the operation of s 24”. [49]. The alleged error was in analysing the honesty and reasonableness of a belief on the appellant’s part “within the framework of s 24”. [49]. The appellant submitted that instead, the trial judge “should have focussed upon whether a subjective belief on the appellant’s part that there was a debt was a reasonable basis for demanding its repayment”. [49].

Gotterson JA (with whom Fraser JA agreed) ultimately found that, in the circumstances, no miscarriage of justice could have arisen from his Honour’s approach. [56]. In any event, the second pathway to guilt (outlined above) assumed an honest and reasonable but mistaken belief on the part of the appellant but, as his Honour concluded, there was no reasonable cause for the demand as made. [56].

As for Ground 2, Gotterson JA was not persuaded that this ground could succeed. [66]. First, “[t]here was no explicit acknowledgement of any debt by the complainant”. [67]. Secondly, it was open to the trial judge to take into account Mr Masri’s demeanour in the witness box as sometimes “incomprehensibly hysterical” in his assessment of whether “the appellant could or ought to have regarded him as a reliable source of information”. [68]. Thirdly, “the manner in which the appellant arranged to meet, and first met, the complainant”, namely as someone interested in buying the café, “supported the finding now challenged”. [69]. This ground of appeal was therefore not made out. [70].

The other grounds of appeal were also unsuccessful. The appellant’s appeal against conviction was dismissed, as was his appeal against sentence. [92].

McMurdo JA agreed with the orders proposed by Gotterson JA and was in substantial agreement with his Honour’s orders. [94]. However, his Honour disagreed in relation to Ground 2. His Honour would have upheld the appellant’s argument that it was not open to the judge to conclude that a mistaken belief by the appellant was an unreasonable one. [97].

J English