Austin v The Queen

[1989] HCA 26

HIGH COURT OF AUSTRALIA

Brennan, Deane, Dawson, Toohey and McHugh JJ.

AUSTIN v. THE QUEEN

(1989) 166 CLR 669

11 May 1989

Criminal Law

Criminal Law—Demanding money with menaces—"Demand"—Communication to person to whom directed—Whether necessary—Kidnapping Act 1960 (S.A.), s. 3(1).

Decision

BRENNAN, DEANE, DAWSON, TOOHEY AND McHUGH JJ. The applicant was convicted in the Supreme Court of South Australia of having demanded money with threats. He was tried before a judge alone, having elected to be tried without a jury pursuant to s.7 of the Juries Act 1927 (S.A.). The offence of demanding money with menaces or threats was created by sub-s.(1) of s.3 of the Kidnapping Act 1960 (S.A.). Section 3 provides as follows:

"3.(1) Any person who without reasonable and

probable cause directly or indirectly and whether by letter, writing, word of mouth or any other medium whatsoever demands any property, chattel, money, valuable security or other valuable thing of any person with menaces or threats in relation to the life, health, safety, security or well-being of the person from whom the demand is made or of any other person or to the safety or security of the property real or personal of either such person shall be guilty of felony and liable to be imprisoned for life. (2) Any person who without reasonable and

probable cause directly or indirectly and whether by letter, writing, word of mouth or any other medium whatsoever threatens the life, health, safety, security or well-being of any other person or of any relative or friend of that person or of any member of that person's family or the safety or security of the property real or personal of any such person, relative, friend or member of family shall be guilty of felony and liable to be imprisoned for life."

2. The demand alleged to have been made by the applicant was contained in a letter which was left in a public telephone box. It appears in the judgment of the Chief Justice in the Full Court as follows:
"This is to warn you that the Pope will be attacked
unless the State Government does the following: 1. Order all prisoners keep in police cells to be take to Adelaide Gaol, A.R.C., this is to be done by 12 p.m. on 28.11.86. This is to be shown on T.V. news. 2. The State Government (Blevins) is to grant a pay rise to all prisoners of $20, this is to be done by 29.11.86 again T.V. news. 3. Remove a number of prison officers from ARC. A list will be given to you. As you will try and trace phone calls we will make contact with you by other means. Also if you don't carry out no.1 we will conduct a fire bombing within 48 hours to show you we will do what we say. As you will try to stop us we have taken steps to stop you so be warned of surprises if you try it. The code for you us to get in contact with you is 666. We will contact you soon. You are to let us know that you have received this and are going to carry it out. This is to be done on 9 News tonight."

At the time the letter was discovered, the Pope was visiting or was about to visit the State. The letters A.R.C. stand for Adelaide Remand Centre.

3. On 26 November 1986, a man telephoned a television channel and said that a letter making a threat had been left in a telephone box, which he identified. The police were informed and went to the telephone box, as did a camera crew from the television channel. The letter containing the demand was found on a ledge in the telephone box. There was no reference to the incident on television that evening. A man later telephoned the police and said that, because no action had been taken, there would be a Molotov cocktail in the Taperoo area that night. He said that he knew that the call was being taped and that he would ring back on the following day. At about 11 o'clock on the following morning, the police recovered a bottle containing petrol and chlorine near a fence in the Taperoo area. There was a charred rag in the neck of the bottle and the fence, against which it was resting, was also charred. On the same afternoon, 27 November 1986, a man telephoned the Motor Registration Branch and said that a bomb had been planted in its building.

4. Subsequently the police searched the applicant's premises. They found a quantity of literature relating to explosives and bombs. They also found a pad containing paper similar to the paper on which the letter found in the telephone box was written. The top sheet of that pad bore impressions which expert evidence, if accepted, proved to be impressions made by the writing of the letter found in the telephone box. There was also expert evidence that a thumb print on one of the sheets of paper found in the telephone box was that of the applicant and that the letter was in his handwriting.

5. The trial judge found, and there was abundant evidence to support his finding, that the applicant wrote the letter. Indeed, under cross-examination he admitted that he did so and that he had placed it in the telephone box. He also admitted that he had placed in position at Taperoo the bottle containing petrol and chlorine and that he had made the various telephone calls. The trial judge found that there was no reasonable and probable cause for the demand contained in the letter and convicted the applicant.

6. Upon appeal to the Full Court, the applicant unsuccessfully raised a number of grounds, one of which was that there was no evidence that the demand contained in the letter was ever communicated to the person to whom it was alleged by the particulars of the charge to have been made, namely, the Minister of Correctional Services, Mr Blevins. The Full Court held by a majority (King C.J. and Jacobs J., Cox J. dissenting) that a demand within the meaning of s.3(1) of the Kidnapping Act need not be communicated to the person to whom it is directed. The applicant seeks special leave to appeal confined to this question. It was assumed in argument upon both sides (although it may otherwise be debatable) that the person to whom the demand contained in the letter was made was, in fact, Mr Blevins and that the demand was for money. It was accepted that there was no evidence that the demand was communicated to Mr Blevins.

7. Before the enactment of the Kidnapping Act in 1960, there already existed in South Australia the common law offences of kidnapping and false imprisonment and the statutory offence of child abduction under s.80 of the Criminal Law Consolidation Act 1935 (S.A.). Following upon a notorious kidnapping in New South Wales, the Kidnapping Act added to the existing offences the statutory offence of kidnapping. This was done by s.2, which introduced extortion as an element of the offence which it created and provided for a penalty of life imprisonment and a whipping, the latter penalty being abolished in 1971. The Kidnapping Act went on, however, to deal in s.3(1) with another type of extortion - demanding money with menaces or threats - and in s.3(2) with the making of threats unaccompanied by any demand. Sub-sections (1) and (2) of s.3 also provided for a penalty of life imprisonment and, until 1971, a whipping.

8. Not only was the offence of kidnapping created by s.2 of the Kidnapping Act superimposed upon the existing offences of kidnapping, false imprisonment and child abduction, but the offences created by s.3 were also superimposed upon existing offences of a similar character contained in ss.159-162 of the Criminal Law Consolidation Act. It will be necessary to refer later to these sections in order to make good the observation that s.3 of the Kidnapping Act can hardly have been intended to receive a narrower construction than the existing provisions which it was designed to draw together and supplement, but for the moment it is convenient to turn to s.3(1), under which the applicant was convicted.

9. Whilst it is clear that there can be more than one view of the meaning of the words "demands ... of any person", it is, we think, in accordance with the ordinary usage of language to regard a demand as having been made at a point short of its actual communication to the person to whom it is directed. To do so is neither to conceive of the demand in an abstract form nor to use the word proleptically. Of course, a requirement, however peremptory, cannot amount to a demand unless it is made with the intention that it should be conveyed or communicated to the person to whom it is directed and in circumstances which are apt to achieve that end. A message put to sea in a bottle or a request shouted to the four winds cannot, except in the most extraordinary circumstances, amount to a demand of any person. On the other hand, a demand advertised in a newspaper may, even in the absence of actual communication, amount to a demand made of a person if the advertisement is an apt means of bringing the demand to the attention of that person.

10. As Lord Diplock observed in Treacy v. Director of Public Prosecutions (1971) AC 537, at p 565, "(a)rguments as to the meaning of ordinary everyday phrases are not susceptible of much elaboration", but a person who has sent a letter containing a demand would say that he has made the demand and would not say that he will make a demand when the letter is received. In that case the House of Lords, by a majority, held that a demand contained in a letter was made when the letter was posted rather than when it was received. Accordingly, it was held that the offence of blackmail under s.21(1) of the Theft Act 1968 (U.K.) was committed in England when a letter making an "unwarranted demand with menaces" was posted there, notwithstanding that it was received in Germany.

11. Whether the circumstances in which an alleged demand is made are apt to lead to its communication will be a question of fact and it is possible to think of borderline cases. For example, a message sent by a messenger under an arrangement whereby the message might be recalled in the event that the sender changes his mind, may not, depending upon the particular circumstances, amount to a demand at the time the message is sent. But that is because the means adopted may not be apt to convey the message. On the other hand, there is no reason to think that a demand cannot be made at the time a letter containing the demand is posted or dispatched, provided that the letter will in the ordinary course of things reach its destination.

12. Not only does such a view accord with ordinary usage but, in the context of s.3(1), it is consistent with the evident intent which lies behind the sub-section. It is the behaviour of the offender in making a demand with menaces or threats which is the gist of the offence and not actions or events over which the offender may have no control. There are, of course, crimes in which the actus reus is incomplete until certain consequences occur as a result of the offender's conduct. Murder by shooting or poisoning, where death is the consequence of the offender's act, are examples. But where the definition of an offence can be construed either to include or to omit the consequences of the offender's act as an element of the offence, the immediacy of the consequences and their subjection to supervening events or actions are material to the construction to be placed upon the definition. Thus it is appropriate to regard the offence of demanding money with menaces or threats as complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent. It is inappropriate to regard actual communication as a necessary part of the offence.

13. It was suggested in argument that an uncommunicated demand is in reality an attempted demand and that it should be penalized as such: see Criminal Law Consolidation Act s.290. But there are difficulties in that notion, as the case of Moran (1952) 36 CrAppR 10 shows. A demand is itself a species of attempt - an attempt to secure the object of the demand - and it is not easy to conceive of an attempted attempt. Whilst it is not possible to assert categorically that there cannot be an attempted demand, there is in many cases - and perhaps in this case - good sense in the observation of the Court of Criminal Appeal at p 12 that:

"A man may form the intention of demanding money with menaces and then not put his intention into practice. In that case he would not be guilty of demanding. But the court cannot see how a person can be guilty of an attempt to demand; there is either a demand or there is not."

The question does not, however, arise in this case once it is concluded, as we think it should be, that actual communication forms no necessary part of a demand.

14. There is nothing in the surrounding words of s.3(1) to suggest any contrary conclusion. The generality of the wording, which allows a demand to be made "directly or indirectly" and "by ... any ... medium whatsoever", in so far as it sheds any light on the matter, tends to support the construction which we think to be the correct one. The words "of any person" do not suggest that communication is required for, if no such requirement is imported by the use of the word "demand", then a demand may be made of a person whether the demand is actually communicated or not.

15. Nor does the history of the section suggest any different approach. It is true that in some earlier statutes the offence of demanding money is couched in terms which suggest that the demand must be communicated. For example, it is possible to go back to 7 Geo II c 21 which created the offence of assault with intent to commit robbery by providing:

"That if any person or persons ... shall, with any offensive weapon or instrument, unlawfully and maliciously assault, or shall by menaces, or in or by any forcible or violent manner, demand any money, goods, or chattles, of or from any other person or persons with a felonious intent to rob or commit robbery upon such person or persons, that then, and in every such case, all and every such person and persons so offending, being thereof lawfully convicted, shall be, and be adjudged guilty of felony ..."

No doubt legislation such as this (see also 4 Geo. IV c.54) created offences which in a very broad sense are in the same category as those created by s.3 of the Kidnapping Act and ss.159-162 of the Criminal Law Consolidation Act. But the precise scope of the offences created by the later legislation must be determined by the language used, which is significantly different from that used in the early statutes and does not suggest, as does the early legislation, that actual physical confrontation is necessary. For example, s.159 creates the offence of demanding money by menaces and expressly provides that the sending or uttering of a letter containing such a demand shall constitute the offence.

16. It is of significance that the Kidnapping Act was intended, not only to increase the penalties for extortion, but to restate the law in a more comprehensive manner. This it does in s.3(1) by combining a number of the elements of the existing offences in the one section. It would be a curious construction to give s.3(1) a lesser reach than, for instance, that of s.159, which clearly does not make communication a necessary element of the offence which it creates.

17. It follows that the applicant must fail in his argument. Whilst there was no evidence that his demand was communicated to the person to whom it was said to be directed, the steps taken by the applicant to bring it to the notice of the police and to obtain television coverage of it were apt to result in its being communicated to that person. We would grant special leave and dismiss the appeal.

Orders

Application for special leave to appeal granted.

Appeal dimissed.