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Petch v The Queen

Petch v The Queen

Case [2020] NSWCCA 133 19 June 2020

Appeal

Mens Rea & Intention

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Petch v R [2020] NSWCCA 133
Hearing dates: 22 May 2020
Date of orders: 19 June 2020
Decision date: 19 June 2020
Before: Hoeben CJ at CL at [1]
Hamill J at [2]
Cavanagh J at [110]
Decision:
(1)   Where necessary, grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the conviction and, in lieu thereof, enter a verdict of acquittal.

Catchwords:
CRIMINAL LAW – appeals – appeal against conviction – Mayor of Ryde – blackmail – unwarranted demand with menaces – mental element of offence – requirement of mens rea – Model Criminal Code – intention to menace – intention to make an unwarranted demand – intention to issue a threat – whether misdirection as to mental element – statutory construction – use of extrinsic materials – where trial Judge circulated draft directions – where directions accorded with the appellant’s submissions at trial – change of approach on appeal – whether rule 4 applies – element of the offence – important question of principle

CRIMINAL LAW – evidence – admission of evidence over objection – lay opinion evidence – where victim permitted to give evidence of appellant’s state of mind – notes made by victim – exception to hearsay rule – whether exception extended to note concerning appellant’s intention – where opinions stated in absolute terms – where opinion went to central issue in the trial – evidence inadmissible
CRIMINAL LAW – appeal – whether re-trial should be ordered – where verdict not unreasonable – where appellant served most of Intensive Corrections Order – where appellant elderly – verdict of acquittal entered
Legislation Cited: Crimes Act 1900 (NSW), Pt 4B, ss 249K, 249L, 249M
Crimes Act 1958 (Vic), s 87
Crimes Amendment Act 2007 (NSW), ch 1
Criminal Appeal Act 1912 (NSW), ss 6, 8
Criminal Appeal Rules 1912 (NSW), r 4
Criminal Code 1995 (Cth), ss 3.1, 5.1, 5.6, 138.1, 138.2, 139.1, 139.2
Evidence Act 1995 (NSW), ss 62, 66, 76, 78, 131
Interpretation Act 1987 (NSW), s 34
Theft Act 1968 (UK), s 21
Cases Cited: Benasic v R (1987) 77 ALR 340
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Castagna v R; Agius v R [2019] NSWCCA 114
Connolly v Willis [1984] 1 NSWLR 373
Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Gerakiteys v R (1984) 153 CLR 317; 51 ALR 417
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635; [1966] HCA 74
Guo v R [2020] NSWCCA 40
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
King v R (1986) 161 CLR 423; 67 ALR 379
Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496; [2007] NSWCA 39

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Petch v The Queen

Details

AGLC: Petch v The Queen [2020] NSWCCA 133
Case: [2020] NSWCCA 133
Decision Date: 19 June 2020

CaseChat Overview and Summary

The matter of Petch v The Queen involved an appeal against the conviction of the appellant, Petch, for the offence of blackmail. The case was heard and determined by the High Court of Australia. Petch had been found guilty of blackmailing the Mayor of Ryde, a charge under the Model Criminal Code Offences Act (NSW). The appellant argued that the trial judge had misdirected the jury on the mens rea required for the offence and that lay opinion evidence was inadmissible.

The primary legal issue was whether the trial judge had misdirected the jury regarding the mental element of the blackmail offence. The appellant contended that the trial judge had not properly explained the necessary intention required to constitute an unwarranted demand with menaces. Additionally, the appellant argued that the trial judge should not have allowed the victim to give lay opinion evidence regarding the appellant's state of mind, particularly in relation to his intention to issue a threat.

The High Court held that there had been no misdirection by the trial judge concerning the mens rea for the blackmail offence. The court found that the trial judge's directions were consistent with the appellant's submissions at trial and in line with the statutory requirements under the Model Criminal Code Offences Act. The court also determined that the use of extrinsic materials, such as the draft directions circulated by the trial judge, did not constitute a change of approach that would warrant a retrial under rule 4. Regarding the lay opinion evidence, the court held that the victim's evidence was inadmissible as it went to the appellant's intention, which was an ultimate issue for the jury. However, the court concluded that the error was not sufficient to order a retrial because the verdict was not unreasonable, and the appellant had already served most of his sentence. The court took into account the appellant's age and the fact that an acquittal verdict had been entered.

The final orders of the court were to dismiss the appeal against conviction and sentence. The court did not order a retrial, finding that the verdict was not unreasonable given the circumstances of the case.

Orders