Director of Public Prosecutions v Kuo

[1999] NSWSC 1201

Reported Decision: [1999] 49 NSWLR 226

New South Wales

Supreme Court

CITATION:	Director of Public Prosecutions v Kuo [1999] NSWSC 1201
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	12256/99
HEARING DATE(S):	6 December 1999
JUDGMENT DATE:	10 December 1999
PARTIES :	in person
JUDGMENT OF:	Simpson J at 1

LOWER COURT JURISDICTION:	Children's Court, Glebe
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Magistrate L Gilmour

COUNSEL :	P Berman - DPP Defendant in person
SOLICITORS:	S E O'Connor - Solicitor for Public Prosecutions
CATCHWORDS:	Appeal from Magistrate dismissing an information against the defendant on a question of law only.
ACTS CITED:	Justices Act 1902 Crimes Act 1900 Crimes Act 1914 (Cth) Larceny Act 1861
CASES CITED:	R v Tomlinson [1895] 1 QB 706 R v Boyle and Merchant (1941] 3 KB 339 R v Walton 9 Cox, CC 268 R v Clear [1968] 1 QB 670
DECISION:	The order of the magistrate dismissing the information against the defendant is quashed.; The matter is remitted to the magistrate to hear and determine it in accordance with these conclusions.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Friday, 10 December 1999

12256/99

DIRECTOR OF PUBLIC PROSECUTIONS v Simon KUO

Judgment

HER HONOUR :

1 Pursuant to s 104(2) of the Justices Act 1902, the Director of Public Prosecutions appeals an order made by a magistrate, Ms Gilmour, in the Children’s Court at Glebe, dismissing an information against the defendant. Such an appeal lies on a question of law only.

2 The information charged the defendant with an offence under s 99 of the Crimes Act 1900. S 99 is in the following terms:

“Whosoever, with menaces, or by force, demands any money from any person, with intent to steal the same, shall be liable to penal servitude for ten years.”

3    The prosecution case was essentially given in the evidence of the alleged victim, Raymond Macchi. His evidence can be summarised in the following way. He was sixteen years of age at the time of the events he described. At about 10.30 am on 2 February 1999 while waiting at a bus stop he saw the defendant, whom he knew from primary school, with another male. Mr Macchi boarded a bus and took a seat at the rear. The defendant and his companion followed and took the seats just in front of him, and the defendant and Mr Macchi greeted one another. Nobody else was in the near vicinity but a few passengers were towards the front. The other male drew attention to a mobile phone Mr Macchi was carrying and asked to see it. Mr Macchi agreed and handed him the phone. The male asked how much it had cost and then said “Well you don’t have to worry about it now, its mine”. He pocketed the phone. The defendant was seated nearby, looking at the other person.

4    Mr Macchi asked for the phone to be returned and said that he needed it for work. His request was refused. He said that he would do anything to get the phone back because he needed it for work. The male asked how much money he had on him and Mr Macchi replied that he had about $15. The male said it would cost more than that and asked if Mr Macchi had any more money. Mr Macchi said he might have about $50 in the bank. He again asked if there was any way he could get the phone back. The male said that he could have the phone back if Mr Macchi gave him the $50. The whole conversation was conducted with the defendant’s companion. The defendant sat nearby but said nothing. The male then ordered Mr Macchi to accompany himself and the defendant to a mall where there was an automatic teller machine. Mr Macchi did so, the male directed him to withdraw the money and added if there was more than $50 in the account he wanted that too. Mr Macchi used his credit card to withdraw $50 and asked the male if he would then return the phone in exchange for the money. The male snatched the money when it was proffered by Mr Macchi but refused to hand over the phone. After Mr Macchi pleaded with him to do so he eventually returned the phone.

5 At the conclusion of the prosecution case the magistrate invited the prosecutor to address her on whether the evidence was sufficient to establish that the money had been demanded “with menaces”. Lengthy debate ensued. The magistrate then dismissed the information. Her reason for doing so was that she considered that a demand “with menaces” requires some threat of harm. She acknowledged that the threatened harm may be physical, either to the victim or to somebody known to the victim, or to reputation. She held that in this case there was never any such threat, direct or indirect. She took into account the fact that the offence occurred in daylight, with a lot of people around, on a public bus and in a shopping mall. She referred to s 105 of the Crimes Act which is in the following terms:

“It shall be immaterial whether any such menace or threat, as is referred to in sections 99 - 103 both inclusive, is of violence, or injury, or of an accusation to be caused, or made, by the offender, or by any other person, or whether the accusation, if made, shall purport to be that of the offender, or some other person.”

6 It appears that her Worship read s 105 as a definition section. This, in my opinion, is erroneous. S 105, although hardly felicitously expressed, does not define “menaces”, but is intended to broaden the scope of the conduct encompassed by the word, so as to include harm done by words as well as by physical force, and harm done by the words of persons other than the person accused. The section does not however, exclude harm to or threatened theft of property. In my view, the threat to steal the telephone was capable of amounting to “menaces” within the section. Whether it did in fact amount to such “menaces” is a question of fact for the magistrate.

7 Counsel for the DPP referred to a number of decided cases, both English and Australian that support this approach. The first of these was R v Tomlinson [1895] 1 QB 706. The charge in that case was brought under s 44 of the Larceny Act, 1861 which made it a felony to send or deliver (inter alia) any letter or writing “demanding of any person with menaces” any property or money. It was alleged that the prisoner had written a letter demanding ten shillings and threatening the recipient that if it was not received he would expose the recipient’s alleged sexual misconduct. The question at issue was whether the sending of the letter was evidence of demanding money with menaces. On behalf of the prisoner it was argued that the word “menaces” necessarily imported a threat of injury to the person or the property of the person threatened. Lord Russell CJ, with whom the other members of the court agreed, while disclaiming an intention to lay down an exhaustive definition, considered that the word included menaces or threats of danger by an accusation of misconduct, including conduct not amounting to a crime. It is interesting to note that even the narrow construction advanced by counsel for the prisoner in that case accepted that the threat of injury to property would have been sufficient.

8 In R v Boyle and Merchant [1914] 3KB 339 the English Court of Criminal Appeal considered convictions brought under s 45 of the same Act which is in substance the same as s 99. There the facts were that the appellants threatened to publish attacks upon a company in a newspaper in such a way as to threaten damage to the market price of the shares of the company. Lord Reading CJ, Lord Coleridge and Sankey JJ rejected a contention that the word “menaces” was restricted to a threat of physical violence or a threat of injury to character. The Court referred with approval to a decision in R v Walton 9 Cox, CC 268, which concluded:

“That if a man is induced to part with his money or property through fear or alarm he is no longer a free agent and is no longer capable of parting with the property with his consent. If the threat was of a character to produce in an ordinary man such a degree of fear or alarm as would ‘unsettle his mind … and take away from his acts that element of free voluntary action which alone constitutes consent,’ and was made with that intent, it would constitute the offence under the section now under consideration notwithstanding that the threat was not of physical violence or of injury to character.”

9    The Court in Boyle and Merchant then held:

“A threat to injure a man’s property may be more serious to him and have greater effect upon his mind than a threat of physical violence. When there is evidence of such a threat as if calculated to operate upon the mind of a person of ordinarily firm mind, and the jury have been properly directed, it is for them to determine whether in fact the conduct of the accused has brought them within the section, and whether in the particular case the ‘menace’ is established. If the threat is of such a character that it is not calculated to deprive any person of reasonable sound and ordinarily firm mind of the free and voluntary action of his mind it would not be menace within the meaning of that section. In our judgment when a man, with intent to steal, threatens either to do violence to the person of another, or to commit acts calculated to injure the property or character of another, it is a menace within the meaning of the section.”

10 Both of these cases, and Walton, were referred to and relied on by the English Court of Appeal in R v Clear [1968] 1 QB 670. The section in question there was in substance similar to s 99, although the phraseology varied. The allegation was that the defendant had threatened to give evidence detrimental to the case of the complainant in legal proceedings. An appeal against the conviction was dismissed.

11 The only Australian case cited on behalf of the plaintiff was R v Rae, a decision of Wood CJ at CL with whom Beazley JA and Dunford J agreed, delivered on 2 November 1998. The case came before the Court of Criminal Appeal by way of stated case from the District Court. The charge was brought under s 85ZE(a) of the Crimes Act 1914 (Cth). That section prohibited the use of carriage service “to menace or harass another person”. It was alleged that the defendant had used such a service to convey a threat that a bomb had been placed in the premises of a commercial entity. The question asked in the stated case, relevant to the present case, was whether it was correct to hold that the appellant could not be guilty of an offence against the section because the commercial entity was not threatened with actual harm, it not being sufficient that a person of normal stability and courage might have felt apprehensive for his or her well being had such a person been a party to the telephone call. The question really at issue in that case, and reasoning that led to a negative answer to the question, do not really bear on the present matter. The judgment was relied on specifically because of a rider added by way of obiter in these terms:

“I would add, although it is not specifically raised on the stated case, that I would regard it as at least arguable that the offence is made out if the message conveyed is one giving rise to apprehension as to the safety of property of the intended recipient. Although it is not necessary to decide the point in this case there is no logical reason to confine ‘menace’ … to personal injuries.”

12 In my opinion the plaintiff has established that the magistrate misdirected herself by confining too narrowly the word “menaces”. She did not accept that a threat to property might constitute a “menace”. She took the view, accordingly, that there was no evidence of “menaces”. This, in my view, was incorrect. There was evidence, which she may or may not have accepted, of a threat to the property of Mr Macchi which obliged her to consider whether the threat was such as to come within the meaning of the word as it appears in s 99.

13 S 109 prescribes the powers of this Court on an appeal under s 104. These appear to apply equally to an appeal by an informant under s 104(2) as to an appeal by a person convicted. Accordingly it is appropriate to make orders 1 and 3 substantially as sought in the summons. I see no utility in making a declaration as sought in order 2.

14    The orders I make are:

1. The order of the magistrate dismissing the information against the defendant is quashed;

2. The matter is remitted to the magistrate to hear and determine it in accordance with these conclusions.

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Last Modified: 06/30/2000