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Court of Criminal Appeal 19 June 2020

Petch v R

[2020] NSWCCA 133

Fraud & dishonesty
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION MAYOR OF RYDE BLACKMAIL UNWARRANTED DEMAND WITH MENACES

Citation: Petch v R [2020] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 19 June 2020
Judge(s): Hoeben CJ at CL, Hamill J, Cavanagh J

Background

The appellant was the Mayor of the City of Ryde. In May 2013, he had a conversation with the then Acting General Manager of Ryde City Council about litigation in which the Council and several councillors, including the appellant, were defendants. The prosecution alleged that during that conversation the appellant made an implied threat designed to pressure the Acting General Manager into securing reimbursement of legal costs for himself and his fellow councillors.

More than five years after the conversation took place, a jury found the appellant guilty of making an unwarranted demand with menaces (commonly referred to as blackmail) under s 249K of the Crimes Act 1900 (NSW). He was sentenced to two years' imprisonment, served by way of an intensive corrections order (ICO).

The appellant appealed his conviction on three grounds: that the trial judge misdirected the jury on the mental element of the offence, that the trial judge wrongly admitted opinion evidence from the complainant about the appellant's state of mind, and that the verdict was unreasonable or unsupported by the evidence.

  • Whether the offence of blackmail under s 249K requires the prosecution to prove that the accused intended to make a threat (an "intent to menace"), in addition to proving an intention to make an unwarranted demand.
  • Whether the complainant's oral evidence and the final paragraph of a note she wrote shortly after the conversation were admissible as lay opinion evidence under s 78 of the Evidence Act 1995 (NSW), given that both went to the appellant's state of mind.
  • Whether the final paragraph of the complainant's note was admissible as an exception to the hearsay rule under s 66 of the Evidence Act 1995 (NSW).
  • Whether, if the appeal succeeded, a retrial should be ordered.

Decision

Ground 1: Mental element (majority)

Hamill J, with Hoeben CJ at CL agreeing, held that s 249K requires proof of both an intention to make an unwarranted demand and an intention to make that demand with menaces, meaning an intention to issue an express or implied threat. This construction was supported by the plain words of the statute, the definition of "menaces" in s 249M, extrinsic materials including the Model Criminal Code, and the general law presumption that criminal offences require proof of a mental element. The trial judge had not directed the jury on the need to find an intent to threaten, and that omission constituted a substantial miscarriage of justice. The Court granted leave to raise the ground despite the appellant having taken a different position at trial.

Cavanagh J dissented on this ground. His Honour considered the language of s 249M clear enough that recourse to extrinsic materials was unnecessary, and that the proper construction of the provision is objective, directed at the effect of the conduct on the recipient rather than the subjective intention of the maker. On that view, the question was whether a threat was in fact made, not whether the accused intended to make one. Cavanagh J would not have allowed Ground 1.

Ground 2: Opinion and hearsay evidence (unanimous)

All three judges agreed that the complainant's oral evidence about the appellant's state of mind, and the final paragraph of her contemporaneous note, were inadmissible. The evidence did not reflect what the complainant "saw, heard or otherwise perceived" in the relevant sense; it was an inference drawn from surrounding circumstances. It therefore fell outside the lay opinion exception in s 78 of the Evidence Act. The complainant's perception of the threat was not itself a material issue at trial. As for the note, the earlier parts were admissible hearsay under s 66, but the final paragraph was not first-hand hearsay as required by s 62, so s 66 did not apply to that passage.

Ground 3: Unreasonable verdict

The Court unanimously rejected this ground. On the admissible evidence, properly directed, it was open to the jury to find that the appellant intended to issue an implied threat and to convict accordingly.

Retrial

Despite upholding the appeal, the Court declined to order a retrial. The appellant was 80 years old at the time of judgment, the alleged offence was approximately seven years old, and the appellant had by then served more than three-quarters of his ICO. A retrial would have proceeded eight or nine years after the events in question. The Court acknowledged the public interest in prosecuting offences committed by those holding high public office but concluded that the particular circumstances of the case weighed decisively against a retrial. A verdict of acquittal was entered.

Orders Made

  • Leave to appeal granted where necessary.
  • Appeal allowed.
  • Conviction quashed and, in lieu thereof, a verdict of acquittal entered.

Key Takeaways

  • Under s 249K of the Crimes Act 1900 (NSW), the majority of the Court of Criminal Appeal held that the prosecution must prove not only an intention to make an unwarranted demand but also an intention to issue an express or implied threat; the absence of a jury direction on this second element constituted a substantial miscarriage of justice.
  • A significant disagreement arose on the proper construction of ss 249K and 249M: the majority treated the mental element as requiring a subjective intent to threaten, while Cavanagh J considered the test objective, focused on the actual effect of the conduct rather than the maker's intention.
  • Lay opinion evidence under s 78 of the Evidence Act 1995 (NSW) is inadmissible where it amounts to an inference drawn from surrounding circumstances rather than something the witness directly perceived; a complainant's opinion about an accused's state of mind falls outside that exception.
  • The hearsay exception in s 66 of the Evidence Act applies only to first-hand hearsay as defined in s 62; a passage in a witness's notes that records an inference about another person's intention does not satisfy that definition.
  • In declining to order a retrial, the Court weighed the public interest in prosecuting serious offences committed by those in high office against the appellant's age, the significant delay since the offence, and the extent of the sentence already served, concluding those practical and personal factors made a retrial inappropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 249K, 249L, 249M (Part 4B)
- Evidence Act 1995 (NSW), ss 62, 66, 76, 78
- Criminal Appeal Act 1912 (NSW), ss 6, 8
- Criminal Appeal Rules 1912 (NSW), r 4
- Interpretation Act 1987 (NSW), s 34
- Criminal Code 1995 (Cth), ss 3.1, 5.1, 5.6, 138.1, 138.2, 139.1, 139.2
- Crimes Act 1958 (Vic), s 87
- Theft Act 1968 (UK), s 21

Key Cases
- He Kaw Teh v The Queen (1985) 157 CLR 523
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 94 ALJR 394
- R v Baden-Clay (2016) 258 CLR 308
- King v R (1986) 161 CLR 423
- Gerakiteys v R (1984) 153 CLR 317
- Lithgow City Council v Jackson (2011) 244 CLR 352
- Partington v R [2009] NSWCCA 232
- Patrick v The Queen (2014) 42 VR 651
- Castagna v R; Agius v R [2019] NSWCCA 114
- Guo v R [2020] NSWCCA 40
- Black v The Queen (1993) 179 CLR 44
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496
- R v Clear [1968] 1 QB 670