Austin v The Queen

[1989] HCATrans 79

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A27 of 1988

B e t w e e n -

BRADLEY WAYNE AUSTIN

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J
DAWSON J
TOOHEY J

McHUGH J

Austin

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 APRIL 1989, AT 2.22 PM

Copyright in the High Court of Australia

C2T 38 /1 /ND 1 12/4/89

MR T.A. GAME: If the Court pleases, I appear in this matter

together with my learned friend, MR P.J.D. HAMILL.

(instructed by Aboriginal Legal Rights Movement)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned

friend, MS A.M. VANSTONE, for the respondent.

(instructed by the Crown Solicitor for South

Australia)

BRENNAN J: Yes, Mr Game.

MR GAME:  Your Honour, perhaps if I could hand up my outline.

BRENNAN J: Thank you. Mr Solicitor, what is the attitude

of the Crown towards the extension of time?

MR DOYLE: We do not oppose it, if Your Honour pleases.

BRENNAN J: You may proceed without worrying about that,

Mr Game.

MR GAME:	· This application is an application for special
leave from a decision of the South Australian
Court of Criminal Appeal in which that court,
on 2 June 1988, by a majority dismissed the
applicant's appeal against a conviction on one
count of demanding money with threats, contrary to section 3(1) of the KIDNAPPING ACT 1961.
The question which arises on this application
is a very short one, namely, whether or not the
applicant demanded anything within section 3(1)
of the KIDNAPPING ACT when there was no evidence
that a demand was ever communicated to the person that was intended to be the subject of the demand.

(Continued on page 3)

C2T38 I 2 /ND·	2	12/4/89
Austin

MR GAME (continuing):  Whether or not the question of

law is a question of any general application

really depends upon whether or not section 3(1)

of the KIDNAPPING ACT is such an idiosyncratic

piece of legislation that it has no general

application, but there is extortion legislation

throughout Australia which deals with the making

of demands. That legislation is referred to in

paragraph 4 on page 2 and some of that legislation,

for example the Victorian legislation, the Northern
Territory and the ACT legislation, follows the

English legislation. Some of it, for example the

West Australian and Queensland, is of a different

kind, but all of them generally refer to the making

of demands with menaces or threats.

Section 3(1) is referred to at page 42

of the application book and very briefly it

combines extortion with threats in relation to

kidnapping so that it is an offence which has an

element of extortion as an element of the offence,

but it combines that together with offences of

threatened kidnapping and other threats in

relation to security of well-being· of persons.

The applicant was convicted after a trial without

jury before Mr Justice Mohr on 8 December 1987.

There had been two counts, one under section 3(1)

of the KIDNAPPING ACT and one under section 3(2)

and the indictment is to be found at page 1

of the application book.

(Continued on page 4)

C2T39/l/HS	3	12/4/89
Austin

MR GAME (continuing):  Those counts were treated as alternative

counts and that is made plain following a discussion

between the Crown prosecutor and the trial judge and,

at the conclusion of the trial, His Honour the trial

judge proceeded to a conviction on the first but not

on the second. A conviction for attempt was always

available under section 278 of the CRIMINAL LAW

CONSOLIDATION ACT together with section 290, so that

were it the case that the applicant could not be

convicted on count one by reason of the fact that
the demand was not communicated to the person

referred to as the subject of the demand then he

could have been convicted under section 278 read with

section 290 of the CRIMINAL LAW CONSOLIDATION ACT and

there could be no argument that he would not properly

be convicted and that, as an alternative, would have

been available to the Court of Criminal Appeal

were it satisfied that he were wrongly convicted upon

the first count.

Now, if I take the Court to page 35 of the

application book. That sets out the subject of the

demand and the threat.	The threat is to be found in
the first sentence:

This is to warn you that the Pope will be

attacked unless the State Government does the

following.

And the demand is to be found under number 2:

The State Government (Blevins) -

who is the Correctional Services Minister -

is to grant a pay rise to all prisoners of

$20, this is to be done by 29.11.86 again

TV news.

(Continued on page 5)

C2T40/l/VH	4	12/4/89
Austin

DAWSON J:	What is ARC?
MR GAME:	Adelaide Remand Centre.
DAWSON J:	Thank you.
MR GAME:	There may have been a point in relation to whether or
not the particulars in the indictment answered that
particular form of words, namely, the State Government,
Blevins, but it was not taken and it is certainly
not a point that is argued here.
BRENNAN J:	Am I right in thinking that the only point you are of the word 11 demand"? seeking to argue on this application is the meaning
MR GAME:	That is the only point that we seek to argue.
BRENNAN J:	And the question is whether or not it is a demand

if whatever is done does not reach the person of whom

the demand is intended to be made?

MR GAME:	Tb~t is the point and there is no further point and
the point really cannot be put any higher or lower
than that.  I really propose to take the Court shortly
to the passages in the judgments of the Chief Justice
and Mr Justice Jacobs that we showed demonstrated the
problems with the approach that was taken by the
majority.  Our argument is really to be found - expressed
to the fullest in the dissenting judgment of
Mr Justice Cox.  The whole question comes down to
the very short question, whether or not a demand
must be communicated - whether or not the actus reus
of demand is that the demand to be communicated to the person who it is intended complies with that demand.

Now, there is, in our respectful submission, a

serious problem with concluding otherwise and that is

perhaps highlighted by going straight to the judgment

of the Chief Justice at page 46. Now, having reviewed

TREACY's case and regarded that as persuasive authority

and having concluded that a demand is made when the

demand is sent,he sought to define the concept of

demand beginning with this passage:

It is sufficient to constitute a demand of

a person, in my opinion, that:some action be

taken in relation to the demand by the demander.

Now, our comment about that would be that that really

leaves a definition of actus reus of an unnecessarily

broad generality. Then a comment in relation to

intention, which we make no comment on, and then:

that such communication is not effectively

prevented by some subsequent action by the

demander.

C2T41/l/MB	5	12/4/89
Austin

Now, that really does create a problem in relation

to defining when the demand is made because if one

makes the demand when one has sent it and the offence

is completed,then it is very difficult to see how

the offence can somehow be withdrawn by some subsequent

action.

(Continued on page 7)

C2T41/2/MB	6	12/4/89
Austin

MR GAME (continuing):  Ana it involves recourse to

notions such as repeated aemands or continuing

demands which are really an unnecessary

obtrusion into the whole problem because the

law of attempt answers these problems without

any such complexities. If the Act is

sufficiently proximate - and 1 suppose there

might be circumstances where the posting of a

aemand might not be sufficiently proximate - I mean some silly examples like putting a letter

in a bottle and senaing it out to sea - but,

providing that it is sufficiently proximate,

then an attempt has been cormnitted, an attempt

to demand within the offence, and there is no

need to recourse to the sorts or concepts that

are necessary to have recourse to it one adopts

the actus reus favoured by the Chief Justice.

This problem can be seen clearly if one

refers to the judgment of the Court ot Appeal

in TREACY, (l	'::171) AC '.)3 7 at page '.)43 in the
judgment of Mr Justice John Stephenson.	1 seek
briefly to refer to that judgment. At the

bottom of page '.)43, beginning with the sentence

at about F:

If the intended victim is blind or

illiterate, the demand is nonetheless

made and tirst made, in our opinion,

not when it reaches the victim but when

it leaves the demander beyond recall on

its way to the intended victim whom it

will reach in the ordinary course of

things.

We say "first made", because it may be

right to regard the demand as continuing

until it is received, or as repeated when

received. On that view the defendant's

demand was made both in England and in Germany, but he would still be triable

for the offence in England although he

might also be triable for an offence in

Germany. The demand is not made when the

threatening letter is written because it

may never De sent and the writer may have

no firm intention to gain anything by it

or to cause any loss by it. But once the

letter is posted the demand is completed

and the offence of blackmail is

cormnitted.

c2T42/l-/JH	7	MK GAME	lL/4/89
Austin

MR GAME (continuing):  If that be the case, then it is

very difficult to see how the offence can either
be repeated or continuing if the offence is

completed when the letter is posted, and the

problem is really an unnecessary one as l_said,

because the law of attempt answers these problems.

Now the learned Chief Justice at page 45 said

that he relied on TREACY's case as persuasive.

Suffice to - I hope to make a couple of short observations in relation to the decision of the

House of Lords in TREACY. Of the majority

Lord Hodson and Lord Guest decided the case

entirely by reference to the legislative history of

the THEFT ACT, as contrasted with the LARCENY ACT,

and Lord Diplock who would have decided the case

on the jurisdiction basis but proceeded to consider

it on the basis of examining what is meant by

"demand", he considered what "demand" meant and

came to a conclusion which is adverse to the

proposition that I am putting, but he also relied

upon the language of the THEFT ACT and the fact
that it was based upon simple ordinary English
whereas, as Mr Justice Cox pointed out, the language

in the KIDNAPPING ACT and in the CRIMINAL LAW

CONSOLIDATION ACT is entirely conventional.

Now, if I could take the Court to the

judgment of Mr Justice Jacobs at page 51 of the

application book, Mr Justice Jacobs gave no

consideration to the meaning of the word "demand"

upon its own. He considered the que~tion entirely

in the context of the legislative history and he

examined sections 159, 160, 161 and 162 of the

CRIMINAL LAW CONSOLIDATION ACT. Then he concluded

at page 53, after emphasizing the words which

appear in section 3(1), "by any other medium

whatsoever", he concluded that those words were

critical to the case and that therefore a demand

was made in·effect when a demand was uttered.

Now, it is our respectful submission that the

words "by any other medium whatsoever" really only

refer to ways of making demands. They cannot assist

in giving an expansive definition to the word

"demand". _ The construction which he would place

upon "demand" also creates the anomaly that in

section 3(1) demand would mean one thing but in sect ion 160 it would mean another becauae at the top

of page 52 he conceded that making a demand under

section 160 required that the demand be communicated.

In addition, it ignores, in our respectful

submission, the clear distinction in language

between uttering under section 159 and making a

demand under section 160, or for that matter

under section 3(1), and as I said at the outset it

does not address the problem of language which is

C2T43/l/HS	12/4/89
Austin

what is meant by a demand other than in this

context.

Furthermore, this legislative context can be

contrasted with the legislative context dealt with

in TREACY's case because in this context there are

plenty of other offences of which this applicant

could have and would have been found guilty,
including section 159, including section 3(2) of

the KIDNAPPING ACT and including attempting either

of those offences. The question really comes down

to the question, "What is meant by a demand?", and

that takes me to the dissenting judgment of

Mr Justice Cox and I will seek only briefly to

highlight some of the matters that we submit are

important in that judgment.

(Continued on psge 10)

C2T43/2/JIS 9 12/4/89

Austin
MR GAME (continuing)~ At page 56, about two-thirds of

the way down the page, Mr Justice Cox considered

the meaning of the word "demand". He said:

There is room for more than one view of
the matter ..... To demand something is to

ask for it in an authoritative or peremptory

way. One cannot ask for, or demand, something

in the abstract, as it were; there must

be someone to whom the demand is actually

made. It describes a particular kind of

communication. Without the communication

there cannot be, at least in ordinary

parlance, a demand.

And that, in our submission, is the crux of the

issue. If that is correct, then there was no

demand made. If it is incorrect, then the other

conclusion follows.

DAWSON J:  Lord Diplock says the opposite, of course.

He says, in ordinary parlance, you do make a

demand without communicating it. If I send a

letter containing a demand, I say, "I have made

a demand." I do not say, "I will have made a

demand when my letter is received."

MR GAME:  Yes, Your Honour. Lord Reid and Lord Morris,

of course, conclude the contrary so it is a very

difficult question and there really is no

unified point of view in the various attempts

which have been made to answer the question.

DAWSON J:  Why is it not just a question for the jury?

Why do we have to put strait-jackets on it?

Why is it not a word which may change its meaning

according to the circumstances?

MR GAME:	It is question of law, whether or not the actus
reus of the offence requires that it be communicated to the person the subject of the
demand. That would necessarily be put to a jury
in those terms.
DAWSON J:	I hope it would not be put in those terms, actually.

MR GAME: If the proposition that I seek to advance is

correct, then it is a question of law upon which

a jury must be directed.

DAWSON J:  Why could you not say to the jury, "This is

a perfectly ordinary English words, we all know

what a demand means and you've got to decide

in these circumstances whether he did make a

demand or not." ?

C2T44/1/ND-	12/4/89
Austin
MR GAME:	With respect, Your Honour, that clouds the
question which is, "What is meant by demand in
the legislation?" Perhaps if I could put it
this way: if one approaches the question from
the point of view that there is no evidence that a demand were brought to the attention of the person of whom the demand is made, then the question
arises as to whether or not the offence has been
committed. That is not a jury question, that is a question of sufficiency of evidence and
would be answered, in any event, by a trial judge
upon a "no case to answer" submission as it was in
this case.
So were there an insufficiency of evidence the matter would never come before the jury to
make a decision about it.

DEANE J: The letter is a bad example, is it not, in one

sense, in that a letter is not published until

it is received by someone? But what if your

client had taken an advertisement on the front

page of the Advertiser? It is rather strange

that he said, "Well, he either has or hasn't

demanded according to whether the minister reads

i t . II

MR GAME:  I would concede that that presents a problem

for the argument that I seek to put but I would
still submit that the making of the demand connotes
the making of a demand to a person and, indeed,
section 3(1) refers to making a demand of any

person, directly or indirectly, so I suppose

there are those additional words which might

suggest in themselves some -

(Continued on page 12)

C2T44 / 2 /ND·	1 1	12/4/89
Austin

McHUGH J: Well, it does not use the word "making" does it?

MR GAME:  No, it refers to a demanding of any person.

McHUGH J: That is the contrast with TREACY's case.

MR GAME:	Yes.
McHUGH J:	But when a politician calls for a minister to resign,
is that a demand for his resignation even though
the minister does not hear it?

MR GAME: Well, I would submit no; that is not a demand.

DAWSON J:	Of the minister.
MR GAME:	That is no·t a demand of the minister.
BRENNAN J: Well, it might be,	but it is not a demand under

this section, we say.

MR GAME:  It is a demand that - it is a bit like the example

which the learned Chief Justice gave at page 45,

when:

the crowd outside the royal palace at

St Petersburg who were calling on the Tsar

to concede parliamentary government, would

be said to bedemanding it of the Tsar

notwithstanding that he might have been

absent from the palace.

I would boldly submit that that is not a demand

within section 31 of the KIDNAPPING ACT.	As I said,
it is difficult to see what - - -

DAWSON J: It might be demanded, demanding of one another,

perhaps, in those circumstances.

MR GAME:  Yes. Now, I am coming to the conclusion of my argument

but I wanted to refer briefly to that passage in

the judgment of Mr Justice Cox at page 57 where he

refers to the problems with TREACY's case. Then,

at page 58, he deals with the words:

"of any person" -

he said that it -

certainly does not weaken the argument -

and we seek to gain something from it. The passage

that we rely upon is the following sentence:

C2T45/l/VH	12	12/4/89
Austin

To my mind the word "demands" itself

necessarily implies that there is a

person to whom the demand is communicated.

That is really the argument and it cannot be put

any higher than that. Unless there is anything further,

I not have anything further that I wish to put in relation to it.

BRENNAN J:  Thank you, Mr Game. Yes, Mr Solicitor.

MR DOYLE:	If the Court pleases, I hand up the outline of our
submissions.

BRENNAN J: Yes, Mr Solicitor.

MR DOYLE:	If the Court pleases, we submit it is not a proper
case for special leave.  The question, in our
submission, is not one of general importance. There
appears to be no equivalent section elsewhere in Australia. Nor, in our submission, is this really the sort of expression or the sort of case which makes it appropriate for the Court to attempt to lay down in general terms or in comprehensive terms
when a demand will take place. In our respectful
submission, we are confronted with quite a narrow
issue here, -.:namely, whether, under these particular circumstances, a demand was made. Perhaps the divergence in the judgments in the House of Lords
and in the Court of Criminal Appeal indicates that
it would be unwise and fruitless to attempt to say
generally when a demand occurs and, therefore, in
our respectful submission, that is not. really a proper case for special leave, but simply to examine
the facts of this case and to decide whether, on these particular facts, a demand was made.

I could also say at the outset that we do not

support the full width of what the Chief Justice said

as to the meaning of '~demand" - the passage my

friend alluded to a few minutes ago. I acknowledge

that in some respects that would appear to be too

wide. It may be also that the decision in TREACY's	case was, in one sense, too wide, if Their Lordships
were intending to say a demand is made when a letter
is posted, irrespective of whether it is received.
In my submission, that may well be a separate
question but we do rely on TREACY's case as authority
for the proposition that the demand does not have to be received by the intended recipient, which is another matter.

So, in any event, Your Honours, first of all we

submit that it is not a proper case for special leave.

Going to the details of the submission, it is clear

from the history of the matter that the Act was introcluced as

a deiiberately wide-rangeing attempt to fill any gaps there were in

the existing law and to increase the penalties.

C2T45/2/VH	13	12/4/89
Austin

MR DOYLE (continuing):  Could I provide to the Court two

pages from Hansard of the day and Your Honours

will see from the second of those pages - the

relevant extract begins bottom right of the first

page - the speech of Sir Thomas Playford introducing

the legislation in South Australia. In the first

colunm., he refers to what I take to be the THORNE

case that was referred to by Justice Jacobs and,

at the end of the second paragraph in the first

colunm., says:

It is felt that neither the common law nor

the provision to which I have just referred

goes far enough either by way of definition

or by way of punishment to meet what is

universally regarded as an extremely serious

offence.

He then goes on to elaborate a little on what was

being done in relation to kidnapping. Then, in the

second column, he turns to the provisions under

consideration here and says:

Subclause (1) relates to the demand of money

or property, while subclause (2) covers threats

whether accompanied by demands of money or

property or not. It is considered desirable
to have both subclauses, so that two separate

offences are created and proceedings appropriate

to the circumstances may be taken under either

one.

And, jumping down, he refers to section 195 of the

CRIMINAL LAW CONSOLIDATION ACT, but notes that that:

is limited to written demands.

So, was obviously wanting to get beyond written

demands. As to section 160, on the other hand, there

had to be "an intent to steal" and, with respect, I

am not completely clear just what those words mean

or what is gained by taking them out but the tenor	of this is all to show that it was clearly an intent
to widen the law quite generally and he goes on to
say:

The Statute appears to make inadequate if any

provision to cover threats to life or property

in general, particularly oral threats.

Then, in the next paragraph:

The Government has attempted in this Bill

to cover kidnapping and threats in the widest

possible terms.

That is what	I wish to read from that, if the Court
pleases.

C2T46/l/SH	14	12/4/89
Austin

So, I. would respectfully submit that the matter should be approached on the basis - not,

of course, that those words can determine the

interpretation of the words but it was clearly

the intent of Parliament to introduce a provision

which should be read broadly. Therefore, in my

respectful submission, if one looks at the sections

which were already there, that is in the CRIMINAL

LAW CONSOLIDATION ACT and, in particular, section 159,

which provides that:

Any person who sends, delivers or utters -

et cetera -

any letter or writing -

It would be surprising, in my respectful submission,

if Parliament had chosen a word which was narrower in

its scope than these words "sends, delivers or utters".

There seems little doubt that the words "sends, delivers

or utters" would embrace the present situation; that is,

leaving a written demand in a place and informing people

that the demand is there and, in paragraph 3 of the

outline, I have simply noted a reference to Williams and Weinberg where those words are discussed and the

discussion indicates that they will embrace the present

situation.

If my friend's argument is right, then Parliament appears to have chosen a word which is, in fact,

narrower than the words used. My respectful submission

is that the change in terminology would be explicible

on two bases: first of all, perhaps a more modern or

simpler approach to drafting, using one word if possible,

rather than three and then, secondly, an intent to cover

any gaps that might be there, rather than intent to

select a word with a narrower import than the expression

already in section 159.

BRENNAN J:  But in the ordinary case of,say, posting a letter,

what does the Crown have to prove?

MR DOYLE:  Under what section, Your Honour?

BRENNAN J: Under the section 3(1).

MR DOYLE:  Your Honour, in my submission, it is likely that the

Crown would have to prove under section 3(1) that the

letter was received and read by someone being a person

who was likely to communicate it to the intended

recipient or, alternatively, received and read by the

recipient himself.

C2T46/2/SH	15	12/4/89
Austin

MR DOYLE (continuing):  In my respectful submission,it is

doubtful whether the mere posting and nothing more

amounts to making the demand. The notion, in my

submission, embraces communicating your peremptory

requirement to another person, that other person

not being your mere messenger, for example, I would

rather doubt whether it would be a demand if I said

to Mr Game, "Look, I would like you to say to Mr Blevins"

this or that.	If that is all I have done, he knows
of it, but I have done no more.	I have not said, "Off

you go and do it." So my submission is the elements

are communicating your peremptory requirement to

someone else, that person not being a mere confidant

but someone whom you then and there instruct to

deliver it or someone to whom once you have corrrrnunicated

it, it can be said you have done, in effect, all that

is necessary or required to do to make it likely that

the message will then get to the intended recipient.

BRENNAN J:  Well, then take the case not of a letter being

posted but of a telegram being sent so that the form

is taken to the telegram counter?

MR DOYLE:	Yes.
BRENNAN J:	Is everything done that is necessary by the handing over and the payment for the telegram?
MR DOYLE:	It may be, Your Honour, but I put weight on both

elements, that is, corrrrnunicating the contents of the

demand and doing all that has to be done. That is

why I draw the distinction with the mere act of

. posting. In one sense you have done all that has

to be done because in the ordinary course of the post

it will get there but at that stage no one else knows

what you are saying and, in my submission, as a matter

of ordinary language it is not easy to say that a

demand is made by the mere act of posting when no one

else knows what is inside the envelope. So I do put

stress on both elements: communication of the contents

of the message and under circumstances where one can	say that that method of corrrrnunication is all that is
required to do, to be done, for it to reach its recipient or the method of communication is apt to
achieve that result. So when the person makes the
peremptory requirement at a public rally, in my
submission, he has corrrrnunicated it and that is apt
to achieve the result of the relevant person coming to hear of it. But if he simply says to his friend, "I want you to tell Mr Blevins this or that", there
he has communicated it. But until he says to him,
"Now, please,· off you go and do it" he has not, as it
were, sent it on its way, has not done all that is
required, or appropriate, to achieve that result.

McHUGH J:  Well, supposing somebody had taken the letter from

the telephone box in this case, would there have been

any demand?

C2T47/l/MB	16	12/4/89
Austin

MR DOYLE:  Your Honour, the fact that I answer "?robably" highlights

the difficulties of giving all embracing answers but, in my submission, if it was a policeman, a government

official, the man from the channel 9 newsroom, yes.

I think all I could say is a query if it was some child who went in there, saw it, picked it up and

drew on the back of it and then threw it in the gutter.

In my submission, one does have to keep coming back

to those two elements, the contents becoming known
to someone and under circumstances where it will or

is likely to reach the intended recipient.

DAWSON J:  So that if, in fact, for instance, there is an

advertisement in the newspaper and lots of people

read it but it so happens it is never communicated

to the person for whom the demand is made, that does

not matter?

MR DOYLE:  No, that is neither here nor there, in my submission.

The demand is made in that situation.

BRENNAN J:	Why is that?
MR DOYLE:	Because, Your Honour, the contents of the - if I can

call it the message, have been communicated and I am

postulating that the advertisment is a means which is
apt to achieve the desired result, namely, of it getting
to the intended recipient. If, for instance, it was

published in the outer Bulgarian newspaper in Cyrillic

alphabet,to chose a ridiculous example, I am not

sure, with respect, that one would then say the

demand had been made, the very unreality of that

message ever getting to the intended recipient.

Perhaps a better example, although equally strained,

is writing the message out, putting it in a bottle

and dropping it over the side of a ship. With respect,

I am not sure that one would say - well, probably it

fails there on both grounds, no one else knows what

has been written but also the method chosen just

seems so unlikely to achieve the desired result.

So that is perhaps not a good example because it

introduces both elements of my approach to the issue.

DAWSON J:  You are coming very close to saying it is a jury

question with the proviso that there has to be some
sort of communication before a demand can be a demand.

But other than that it is a question for the jury

as to whether it was sufficient to make this demand

in this case.

(Continued on page 18)

C2T47/2/MB	17	12/4/89
Austin

MR DOYLE:  Yes, although,with respect, Your Honour, I

would have to agree with my friend that it is

appropriate for the judge to give the jury some

guidance. At least he must tell them whether the

demand must or need not reach the intended

recipient. In my submission, a summing up would

probably be defective if it did not guide the jury

to that extent.

DAWSON J:  All you would have to say is a completely

uncommunicated demand, of course, cannot	be a
demand.

MR DOYLE:	Yes, that is so, but
DAWSON J:	But short of that it is a question for you whether

the degree of communication was sufficient for

this to constitute the demand.	That is what you
are saying really.

MR DOYLE:  Yes, although in my respectful submission it

would be appropriate for him to go on to say,
"Look at the method of communication and ask
yourselves is that a method of communication
which in the ordinary course of things is likely
to result in the message getting to the intended
recipient whether it does in fact or not?".

In my submission, that is an element of the notion

of demand and something on which it would be

desirable for him to give guidance to the jury.

BRENNAN J:  Why do you resist the notion that there must be

something done by way of communication with another

person apt to affect communication with another

person containing the relevant material which some

other person receives?	Is that sufficient for
your purposes?	Then the only question is,

"Must that other person be the person of whom the

demand is made?".

MR DOYLE:  Yes. I submit the other person need not - I am

not sure whether I am at cross-purposes with

Your Honour - need not be the person to whom the demand is made, but I do submit that the notion of

demand as a matter of ordinary speech does involve
the notion of communication to someone and that
merely writing it out, putting the stamp on it and

dropping· it in the letter-box, as a matter of

ordinary speech would not be said to be a demand.

DAWSON J:  Well, what about if I went into this telephone-box

and picked up this letter and read it and thought it

was a load of nonsense, screwed it up and put it

in my back pocket. What would you tell the jury

then?

MR DOYLE:  In my submission the demand would have been

made then because it has been communicated, it has

C2T48/l/HS	18	12/4/89
Austin

been communicated in a manner which, I would

submit, is apt to achieve the desired result

and the fact that the individual chooses to, as

it were, intercept the message is neither here nor
there, which perhaps weakens a little the answer

I gave to Your Honour earlier about the child who picks it up from the letter-box.

BRENNAN J:  Because if that is right the actus reus

depends upon the result of the physical act of

the accused.

MR DOYLE:	Yes, because part of my submission is that the content of the message must get to someone.
BRENNAN J:	But depending on whom it gets to it may or may

not amount to a communication.

MR DOYLE:  Yes, but it is part of my submission that it 1s

not necessary that it get to the intended

recipient and I would not certainly diffe~ with

respec~ from those of Their Lordships who said the

demand is made, for instance even if it is made to
a person who is deaf, or if it is a written demand
if it is made to a person who is illiterate.

Your Honours, in one sense it is obviously not necessary for me to argue that it must be communicated to someone else, although my

submission is that is what demand involves.

DAWSON J:  Why is it not enough that the demand is

uttered in circumstances such that in the ordinary

course it will be communicated to someone in a

position to act on it?

MR DOYLE:  Did Your Honour say in circumstances where it

is likely to be communciated?

DAWSON J:	No, I said in the ordinary course, but I mean one can substitute one formula for another,
whatever is the purpose.

MR DOYLE:  Yes. Your Honour, I may be delaying the Court

on something that in the end does not matter

because here it was in fact communicated to other
people and they were people such that it was likely

in the ordinary course of things to get to the

ultimate recipient but, in my respectful submission,

if I agreed with what Your Honours put to me I would

have to agree then that the mere act of posting

was enough provided it was addressed in such a

way that it was likely to get either to

Mr Blevins or to someone in his office or in a

government department and I am resisting only

because , in my submission, the notion of makin~

C2T48/2/HS	19	12/4/89
Austin

a demand.does have embodied in it, I would

submit, as a matter of ordinary speec~ the idea

that it is communicated to someone else before

the demand occurs and that the piece of paper in
the envelope that as a matter of ordinary speech

the demand is not made at that moment.	It is
not until it is opened.

(Continued on page 21)

C2T48/3/HS	20	12/4/89
Austin

DAWSON J: It is not a misnomer to speak of an uncommunicated

demand, is it?

MR DOYLE:  In my submission, yes, it is, Your Honour.

I am not sure that I can take it much further.

McHUGH J:  Is there any room for the crime of attempt in

your formulation, Mr Solicitor?

MR DOYLE:  Almost none, Your Honour, probably. On my

friend's formulation, obviously, quite ample

room for it but, in my submission, one would

almost instantly cross the line from acts anterior

to an attempt to what would be the completed
offence but there may be a limited area in which

attempts could operate, but not much.

So, Your Honours, my first submission is

that apart from reading the section narrowly,

when one has regard to its history it should

be read broadly but, in particular, a submission

which produced the result that this section,

in the relevant respect, had a narrower operation

than section 159 should not be accepted. And,

thirdly, that in that respect, the general approach
taken in TREACY's case is applicable here. There,

of course, Their Lordships were dealing with

a section which replaced an earlier section and

so it was easy for them to say, "Well, surely,

it wasn't intended to narrow the scope of the
replaced section", but, in my submission, similar
reasoning can be applied here and one can say,

having regard to the history of the matter, surely,

it was not intended to put in a section which,

in a fairly significant respect, was narrower than one of the sections which was seen to be as inadequate in their general scope.

McHUGH J:  What about subsection (2), do you get any support

from that? Does it require the threat to be

communicated to the person threatened?

MR DOYLE:	Your Honour, my submission as to that, despite what I have said in paragraph 8 of the outline,
where I have suggested that he should, as an alternative, be convicted of the offence under
section 3(2), upon reflection my submission is
that probably, as a matter of consistency, if one read section 3(1) as requiring communication to the recipient, one would tend to say the same about section 3(2) because there is nothing
inherently different about the notion of a demand
or the notion of a threat to say that in
section 3(1), when it says "demands" it means a demand which reaches the recipient, and in
section 3(2) to take a different approach to

C2T49 /1 /NB	21	12/4/89
Austin

the threat because the threat, clearly, on the
section, is not necessarily to be made to the
person who is to be harmed but if one reasoned

that the demand had to be made to the person

who was to answer it one would tend to think

that the threat also had to be made to the person

who was intended to respond to the threat.

While I am on section 3(2), Your Honours,

the other reason why I now do not submit, in

fact, that as an alternative a conviction should

be recorded under that section is that on rereading

it it does appear that probably the first part
of the section, that is, 3(2), only applies
to a threat to the life of the person to whom

the threat is addressed and so what section 3(2)

embraces is, first of all, I say to someone,

"Unless you do something I will kill you." and

then, secondly, "Unless you do something I will

kill or harm a relative or friend or member

of your family'·', because if one read "other
person" in line 4 more widely then the references
to "relative" or "friend" would be quite

unnecessary.

In other words, if one could say the

present case fell within the first four lines

because there was a writing which threatened

the life of another person, then if the first

part can operate that way there seems to be
no need for the second part of the section and

so, on reflection -

McHUGH J:  Does that not tend to indicate that 3(2) requires

communication to the person threatened? And

if that is so, does it not tend to indicate

that 3(1) might also?

MR DOYLE:  I would submit not, Your Honour. I would submit

that one could equally say, again, that if the
threat is a written threat and if what is done

results in the fact that the threat does reach	some other person and, again, under circumstances
that it is likely or apt to reach the intended
recipient of the threat, that is enough.

(Continued on page 23)

C2T49/2/ND	22	12/4/89
Austin

MR DOYLE (continuing):  So, in my submission, as a matter of

consistency ,one v."Ould tend to approach the two

subsections in the same way. Your Honours, the

second limb of our argument is the ordinary meaning

and I have already substantially covered what I

wanted to say on that. We do rely, as I note in

paragraph 5 of the outline, on the illustrations

given by the Chief Justice and also by Justice Cox

in the pre,sent case. We would submit their

illustrations generally illustrate when a demand is

made although Justice Cox would deny that. We also

rely on the illustrations given by His Lordship

Lord Diplock in TREACY's case and there is nothing

to be served by reading them to Your Honours.

Trying to express it a little more precisely,

Your Honours, well, I have attempted to do that in

paragraph 4 of the outline. In our submission, you

do have to look for a peremptory requirement,

or the other person is intended then to

communicate it to another person or persons - perhaps messenger.

communicate it to the intended recipient and its

likely that he or they would do whether he does

or they do so or not.

DEANE J:  What does:

of any person -

mean in line 4 of 3(1)?

MR DOYLE:	In my respectful submission, what it c-onveys is
perhaps what was hardly necessary to convey. A
demand under this section has to be addressed to
someone.

DEANE J: Except that the prepositions are a bit odd in that:

of any person -

one would have thought could possibly read "from

any person" in that sense.

MR DOYLE:	Yes.
DEANE J:	The next line:

of the person

one would have thought should read "from the person."

I am sorry, "from whom" should read "of whom".

MR DOYLE:  So where should "of whom" read "from whom"?

DEANE J: In the next line.

C2T50/l/VH	23	12/4/89
Austin

MR DOYLE:  In line 5.

DEANE J: It says, "from whom the demand is made".

MR DOYLE:	Yes.
DEANE J:	One cannot helpt wondering whether "of any person"

means someone else's property.

MR DOYLE:	I had read it, Your Honour, as meaning, in line 4,
"demands any property" et cetera, or "valuable thing".
Yes, it probably is, perhaps, in the sense of "from
any person". But perhaps "of" is put there to make
it clear that the intention was to cover a situation
like the present one where, presumably, even Mr Austin
did not think that Mr Blevins was going to find the
money, so it was a demand of him.
DEANE J:	But having made the literary effort of talking of demands

of a person, you would think in the next line they

would talk of whom the demand is made rather than

from whom the demand is made. ·

MR DOYLE:  Yes. I would, with respect, agree with Your Honour

there in line 5, the "from whom" does seem to be a

slightly inconsistent use of language and it would

have been, I acknowledge,consistent to say the

person "of whom" the demand is made. I cannot add

to that, Your Honour., I agree with Your Honour, with

respect.

BRENNAN J: If one takes the term "demand of", doe·s that not

connote the communication to the person of whom the

demand is made?

MR DOYLE:  Not in my respectful submission. I would submit

that even if those words were not there that the

same arguments could be advanced; that you can

meaningfully only make a demand of a person; you

cannot, perhaps except in a poetic sense, demand

something of inanimate objects or objects that

are not capable of comprehending the words you use

and so neither the addition nor the substraction

of those words, in my submission, would aid my

argument or my friend's.

DEANE J:  Of course, here, if you can regard, and presumably,

we are to assume that a $20 pay rise is:

property, chattel, money, valuable

security or other valuable thing -

it is very like the kidnapper demanding of the police

that the parents leave the money somewhere.

MR DOYLE:  Yes.

C2T50/2/VH	24	12/4/89
Austin

DEANE J:  The argument would be that since the demand was

not communicated to the parents who, no doubt,
were at the police station, he never made a

demand for the money.

MR DOYLE:	No. Well, Your Honours, that in my submission,
tends to highlight the unreality, as I submit it
is, of the answer given by Justice Cox and
I am grateful to Your Honour for reminding me of
that illustration.  When we look at the very history
of this Act, perhaps the one thing that we tend to
understand with kidnapping is that at an early stage the police get into the picture and act, as
it were, as intermediaries - not intermediaries
but tend to handle affairs as between the kidnappers
and the parents.  Now, that is a very frequent
occurrence and it would be very odd in this Act,
which was precipitated by that sort of situation,
if, in section 3 Parliament had produced a situation
in which, unless the increasing demands or varied
demand:,keep getting to the intended recipient, the
parents, or the other intended recipient, there is
no offence committed.

(Continued on page 26)

C2T50/3/VH	25	12/4/89
Austin

MR DOYLE (continuing):  I know I am putting a lot of weight

there on the circumstances of the statute but, as the word "demand" is a word in ordinary usage, in

my respectful submission, the Court's approach to

the interpretation of it can be coloured quite
properly to a considerable degree by the circumstances

leading up to the enactment of the provision and, in

one context, the Court might.quite rightly say

"demand" could only have been intended to have a

relatively narrow meaning in another situation and

I would submit this: the Court could and should
say that it must have been intended to have really,

as broad a meaning as it could reasonably have.

Again, in my submission, it is important to

bear in mind that here the only issue is, is it

essential for a demand that it does reach the

intended, ultimate recipient? Obviously, any

submission as to the meaning of "demand" has to be

tested, as Your Honours have done with mine by seeing

where it tends to lead you but, in the end, t~e

other approach to this case is to say, and I submit
a perfectly legitimate one, "Well, whatever the

outer limits of this expression are, it is not

essential to have a demand that it reach the intended

recipient'-' and, therefore, on the facts of this case

a demand was made, whatever may be the answer in other

situations.

Your Honours, as to ordinary meaning, I did

indicate at the outset that we do not necessarily -
in fact, do not support the full width of what the

Chief Justice said - that was the passage at page 47

of the appeal book where he said, about line 7 or 8:

It is sufficient to constitute a demand of a nerson that some action be taken in relation to the

demand by the demander.

Now, in my submission, that is too loose; that is,

a number of situations which, on my submission, would	the demander" with the intention. That would embrace "some action be taken in relation to the demand by
not constitute a demand and, as I indicated to for this case, we do not necessarily support what may
seem a logical deduction from the decision in TREACY's
case, that the mere act of posting is enough. We
submit it was significant in that case that the letter
was, in fact, received.

Your Honours, that is all I wish to say in relation

to the ordinary meaning of the expression. As to the

consequences, well, really, I have said all I can

usefully say in paragraph 7 of the outline; that if

the - - -

C2T51/l/SH·	26	12/4/89
Austin

BRENNAN J: What is the order if the Court should be against

you on the principal argument? What is the order

which, in your submission, the Court should make

under paragraph 8?

MR DOYLE:  In my respectful submission, on the facts as found

by the judge, and subject, I suppose, to what

Your Honours say is involved in a demand, it would

appear clear that His Honour must have been satisfied

of the facts necessary to constitute the offence of attempt. Under section 354(2), the Court has power to substitute for the verdict found by the jury - and

I take it that would mean "judge" in the present case -

a verdict guilty of another offence if the facts, as

found, must constitute that offence. So, in my

respectful submission, the appropriate course would

be to allow the appeal, quash the conviction and

remit the matter to the Full Court of the Supreme

Court of South Australia for it - and then,

Your Honours could either, I suppose, direct it to

enter a conviction under section 354(2) or, perhaps, more appropriately, to consider whether it thought· it appropriate to enter a conviction for some other offence, under section 354(2).

McHUGH J: Could you assist me, Mr Solicitor? Where is the

source of the judge's powe~ to try this matter on

indictment without a ju~y?

MR DOYLE:  Section 7 of the JURIES ACT, Your Honour.

McHUGH J: And, does it make applicable all the powers and

procedures that would exist in a case of a trial by

jury on indictment, do you know?

MR DOYLE: Well, I believe it does, Your Honour. I have not

looked specifically at that, I am sorry,and so, while

I believe it does, I am afraid I cannot be certain.

McHUGH J:  It is just that the language of 354 seems to be

addressed to a jury situation. (Continued on page 28)

C2T51/2/SH	27	12/4/89
Austin

MR DOYLE:  Certainly, Your Honour, but obviously it

was enacted at a time when that was the only

way such offences could be dealt with and

there would, l think, be a number of other

sections of this Act where probably already,

as a matter of course, "juries" being read as
referring to a trial by judge alone; for

instance, the mere fact that presumably -

or perhaps the appeals section does not refer

specifically to a jury - that is section 3J2 -

but section 353 allows the rourt on appeal

against conviction to:

allow the appeal if it thinks that the

verdict of the jury should be set

aside.

Ot course, the fact that things are being

done, does not mean that they are being done

correctly but - - -

~RENNAN J:  Well, could you give us a note on the

relationship between the JURlES ACT and these

provisions of the CKIMlNAL LAW CONSOLIDATION ACT?

MR DOYLE:  Yes, we will provide that, if the Court

pleases.

~RENNAN J:  Mr Solicitor, if the argument on the

principaL point were resolved against you, it

would be necessary to quash the conviction, would

it not?

MR DOYLt::	Yes, Your Honour.
BKENNAN J:	What, then, would be the warrant for

detaining the accused in custody if the matter
were simply to be sent back to the Court of

criminal Appeal? Would it not be necessary tor

this Court to exercise the powers which, on the

assumptions being made, the Court of Criminal

Appeal would have?

MR DOYLE:  Yes, I think it might, Your Honour. Yes,

Your Honour, it probably would I am sorry, I

had not thought of that particular complication.

J referred in the outline to section 37 ot

the JUDICIAKY ACT and VICTORIAN STEVEDORING V DIGNAN,

because it seemed rather doubtful to me at the
time whether this Court could, in fact, exercise

those powers, although not thinking of it as a

critical issue, l did not think it right through

and did not develop any submission on the point.

Yes, I am sorry, Your Honour, all I can say at the moment is, with respect, what Your Honour says

to me does seem right, that if the conviction

C2T52/1/JH	28	lL/4/89
Austin

were quashed it may well be, in fact, probably

would be, that there would then be no

warrant tor detaining Mr Austin at that

stage and, therefore, if the power is to be

exercised, it has to be exercised by this

Court. Would it be perhaps helpful to the

Court if, in addition to dealing with the

JURIES ACT, we put in a short written submission on that point? 1 am sorry, 1 cannot help the

Court further on it at the moment.

~RENNAN J:	Very well.
MR DOYLE:	If the Court pleases.
BRENNAN J:	That could be done, l take it, within a

short space of time, Mr Solicitor?

MR DOYLE:  Yes, Your Honour, probably by early next

week.

~RENNAN J:  Yes. Thank you, Mr Solicitor. Mr Game?

MR GAME:	I have no submissions in reply.
BKENNAN J:	What do you have to say about the question of, if you were to succeed on the principal
argument, whether your client is liable to
conviction for an attempt?
MR GAME:	I would concede that he is liable for

conviction on attempt and that subject to the

problem which has just been alluded to, that the matter should be remitted to the court of Criminal Appeal to be determined under

section 3.'.J4(L) of the CRlMINAL LAW cONSOLlDA'rION AC'l'.

BRENNAN J:  If this Court were to substitute a verdict,

exercising the powers of the Court of Criminal

Appeal, so that there was on that footing a

conviction which supported an order of

detention, you would not seek to have any

further order made by this court with respect

to sentencing?

MR GAME:  Well, Your Honour, there is, as I understand

it, a problem in relation to the applicant's

sentence because he has a head sentence which

includes another, or other, matters and he has
a non-parole period which reflects not simply

this matter but some other matter, or matters,

and, therefore, it would be appropriate for

those questions to be dealt with by the

Court of Criminal Appeal.

tiRENNAN J:	Yes.
C2T.'.:i2/2/JH	29
Austin	12/4/89
MR GAME:	I am sorry that I do not know further what

the details of those sentences are but -

BR.t:NNAN J:  Well now, if you wish to reply to the

arguments of the Solicitor-General, can that

be done within a short space ot time?

MR GAME:	Yes, Your Honour.
BRENNAN J:	Then, shall we say, by Tuesday,

Mr Solicitor?

MR DOYLE:	If Your Honour pleases .
.J:SRENNAN J:	And by Friday, Mr Game·,
MR GAM.l:!::	Yes, thank you, Your Honour.
BRENNAN J:	The Court will consider its decision in this

matter.

AT 3.34 PM THE MATTER WAS ADJOURNED S1NE DIE

C2T.'.:>2/JjJH	30	12/4/'d9
Austin