R v Butler

R v CHRISTOPHER JOHN BUTLER

[2012] ACTSC 124 (25 July 2012)

CRIMINAL LAW – making a demand with a threat to endanger health, safety or physical wellbeing of a person – whether the person making the demand and threat must be the one to carry out the threat

Crimes Act 1900 (ACT) s 32(2)(a)
Criminal Code2002 (ACT)
Supreme Court Act 1933 (ACT) s 68B

R v Clear 1968 2 WLR 122
R v Noonan (2002) 127 A Crim R 599 and 2002 NSWCCA 46
R v Collister and Warhurst (1955) 39 Cr App R 100
Dixon-Jenkins v R (1985) 14 A Crim R 372

No. SCC 264 of 2011

Judge: Nield AJ
Supreme Court of the ACT

Date: 25 July 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 264 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

R

v

CHRISTOPHER JOHN BUTLER

ORDERS

Judge:  Nield AJ
Date:  25 July 2012
Place:  Canberra

THE COURT FINDS THAT:

The accused is guilty of making a demand upon the complainant with a threat to endanger the health or wellbeing of a person contrary to s 32(2)(a) of the Crimes Act 1900 (ACT).

As to the trial of Christopher John Butler:

To understand what happened on 4 March 2011 between the complainant, Mr Craig Michael Miller, and the accused, Mr Christopher John Butler, a little background is necessary.
In 2004 the complainant, his wife and their children lived at an address in Palmerston in the ACT. One of the complainant's neighbours was Mr Darryl Galic who lived with his wife and their children, one of whom was engaged to a young man named Abdullah.
At some time during 2004 one of the complainant's acquaintances, Mr Craig Martin, who, the complainant believed, was an importer of whitegoods from China, which he on-sold to major department stores, told him that if he invested $20,000 with him, he would receive a guaranteed interest payment of $5,000 in addition to payment of the principal of $20,000 in three months.
Shortly afterwards, the complainant mentioned to Mr Galic what he had been told by Mr Martin and Mr Galic decided to invest $50,000 with Mr Martin for an interest payment of $10,000 in three months. Mr Martin gave the complainant his bank details, which the complainant passed on to Mr Galic, so that Mr Galic could deposit the principal of $50,000 into Mr Martin's bank account.
Unfortunately, as happens when something is too good to be true, Mr Martin failed to pay the principal of $50,000 or the interest of $10,000 to Mr Galic at the end of three months, and Mr Galic, the complainant believes, sued Mr Martin to recover the principal and interest, which resulted in Mr Martin being declared bankrupt, which, in turn, meant that Mr Galic did not receive anything from Mr Martin.
Then, as happens when somebody loses money, Mr Galic looked for someone to blame for his loss of $50,000 and he settled upon the complainant, who he sued in the hope of recovering his money, but lost.
As a consequence of being sued by Mr Galic, the complainant moved from his residence in Palmerston to a residence in another suburb of Canberra and he did not hear again of Mr Galic until 2 March 2011.
At about 3 pm on 2 March 2011 the accused attended at the complainant's business premises in Fyshwick in the ACT to speak to the complainant but, as the complainant was away from the premises, the accused left the premises without leaving any message for the complainant, although he left his mobile telephone number, 04xxxxxx11.
At about 11.20 am on 3 March 2011 the accused again attended at the complainant’s business premises to speak to the complainant but the complainant was again away from the premises and the accused spoke to the complainant's wife. She asked the accused, “What do you want to give Craig a message for?” and the accused replied, “The message needs to be given to him personally”. After some further conversation, she said, “I can leave a message for you” and the accused replied, “Don’t bother... I know where he lives but I do not want to go to his house, that’s why I want to meet him here.” The accused then left the premises.
At about 5.45 pm on 3 March 2011 the complainant called mobile telephone number 04xxxxxx11 and he spoke with the accused. He asked the accused, “What is this about?” and the accused replied, “I’ve been sent to give you a message.” He asked again, “What is this about?” and the accused replied, “No, I got to see you face to face.” He then said, “I will be in the showroom at about 10 am tomorrow.” and the accused said, “I will meet you at the showroom at 10 am then.”
However, an exchange of text messages on the morning of 4 March 2011 ended with the complainant writing, “all over town with quotes meet back at showroom at 2.30 pm.” and the accused replying, “Cool. Thanks”.
After the arrangement had been made for the accused to attend the complainant’s business premises at 2.30 pm, the complainant's wife set up a video camera and a closed circuit security camera to record the meeting between her husband and the accused.
At about 2.30 pm the accused attended at the complainant's business premises to meet the complainant. The complainant met the accused in the showroom of the premises and took him into his office in the premises. The complainant's wife was in the office when the complainant and the accused came into the office. The complainant's wife asked, “What have you got to say?” and the accused replied, “It is just to Craig.” She said, “Well, you can talk in front of me.” and the accused replied, “Well, it is just for Craig and if he wants to tell you later then it is up to him.” Then the accused said, “I just want to talk to Craig alone and you need to leave.” and the complainant said to his wife, “It will be all right.” The complainant's wife left the office and, as she did so, the accused began to close the office door behind her, which prompted her to ask, “Why are you closing the door?” and he replied, “I need to talk just to Craig.”
After the complainant's wife had left the office, the accused had a conversation with the complainant. The conversation was recorded. A USB stick with the recording is exhibit D1. A transcript of the recording is exhibit D2. In the course of the conversation the accused said these following things to the complainant. I have indicated by number on the transcript corresponding with the following numbers of the things said by the accused to the complainant. As the complainant and the accused interrupted each other, I have deleted some unnecessary or repetitive words and I have run what the accused said into sentences.
i.THE ACCUSED: [My boss] does debt collection.
ii.THE ACCUSED: I normally get sent down [to collect a debt] because I have a good appearance, I’m good with words.
iii.THE ACCUSED: Do you know a guy named… Abdul?
iv.THE ACCUSED: Abdullah? Abdullah? Abdul?
v.THE ACCUSED: My boss has a debt of… something to do with $60,000. He has bought that debt off [Mr Galic, Abdullah's father in law].
vi.THE ACCUSED: Apparently there’s been some business deal that’s gone on. [I think that the word “on” should be the word “wrong”].
vii.THE ACCUSED: There was a loss of $60,000... and it hasn’t been paid back.
viii.THE ACCUSED: [My boss] bought the debt [for $40,000].
ix.THE ACCUSED: I understand [that you say it is not your debt] but you’ve got to understand my boss isn’t going to see it that way.
x.THE ACCUSED: My boss… he’s bought the debt, he’s handed over $40,000, so the way he sees it is he’s going to expect, you know what I mean, he’s then told me to ask you what’s the sort of time period do you think it would take you to get it back
xi.THE ACCUSED: ... this situation has to be sorted out. I’ m the first step and I’m the very polite step. I’m just the first initiator. If [my boss] start sending these other clowns down that he’s got working for him... the choice is going to be up to you from now to them.
xii.THE ACCUSED: I’m not trying to say that I’m heavy... I’m nothing compared to this guy... If he sends a guy down here that’s six foot seven and 165 kgs named Junior... run out of the shop. I’m telling you, don’t stay here.
xiii.THE COMPLAINANT: To be set upon by your boss to say... I’ve got to come up with $40,000 to save my life
THE ACCUSED: 60, 60
xiv.THE COMPLAINANT: So I’ve got to come up with all this dough?
THE ACCUSED: Yeah
THE COMPLAINANT: I can’t do it.
THE ACCUSED: Well, he will give you a time period. I’ll give you a bit of time to think about it. I’ll come back in a week and you can tell me what you’re going to do.
xv.THE ACCUSED: It’s just the way it is. I can’t change it. And as I said, dude, this guy has been doing it for 30 or 40 years, and, dude, you don’t know who he is or where he comes from... And as I said, the next time someone comes down it mightn’t be me. It might be someone else. So you’re not going to know who it is or where it’s coming from or whatever.
xvi.THE ACCUSED: He’s not the sort of guy that will threaten your kids. He’d never threaten your kids. Your kids and your wife would never be hurt. You have my word... You don’t have to worry about anyone coming into your house.”
xvii.THE COMPLAINANT: So you’re basically telling me it’s 60 grand for my life?
THE ACCUSED: Hopefully it doesn’t come down to that but it could come down to that.
xviii.THE COMPLAINANT: So what you’re saying... I have to come up with 60?
THE ACCUSED: You’d have to come up with a certain amount to start with to show that, you know, you’re serious that you’re going to pay it back.
xix.THE ACCUSED: But you have got to understand, there’s people out there that spin the same sort of stuff [that they do not have the money]... he hears it all the time and then, you know, they say, “I don’t have that money. I don’t have this. I don’t have that.” They go around and chop his hand off or break his legs, and all of a sudden he gets the money the next day.
xx.THE ACCUSED: Well, I’ll give you a week. I’ll give you a week, right?... I’ll come back next week, okay?
xxi.THE ACCUSED: ... if you’re trying, well, he’s not a prick, he’s not a prick, but one way or the other he is going to want the money.
xxii.THE ACCUSED: … obviously what we’re doing is semi‑legal. We try to go about it the best way we can. We try and go about it as nicely as possible. We’re not going to just come in and say, “Listen, if you do not have the money in two days, well, then...” No. We come down, all right, we’ll be nice. We try and sort the situation out in the best way possible.
xxiii.THE ACCUSED: As long as you can come up with a lump sort of a sum... like, 20 or 30 grand, I’m talking about. Like, you’re going to have to come up with something like that. To sort of go, “Well... here’s this to show you that... I’m not going to fuck you around” and just say, “Well, I’m going to need this amount of time.” And, like, he’s not going to want, you know, to send someone down here to collect $3,000 once a week.
xxiv.THE COMPLAINANT: I just can’t come up with big dough like that.
THE ACCUSED: Well, you’re going to need to come up with at least probably 20, just to show him that you’re serious.
xxv.THE ACCUSED: I’m quite sure if you come up with the 20 to start with, at least 20 to start with, anything other than that he’s going to go... I can tell you’re going to want a bit of time to pay it.
On 17 March 2011 the complainant reported what the accused had said to him to police. He gave police a recording of the conversation, see exhibit D1.
On 17 March 2011 the accused attended again at the complainant's business premises and he spoke to the complainant's wife and they arranged that he would meet the complainant at about 3.30 pm the following day at the Plumb on Tennant café in Fyshwick. The complainant told police about this arrangement.
Accordingly, at about 3.20 pm on 18 March 2011 the accused attended at the Plumb on Tennant café in Fyshwick to meet the complainant and he was met by Senior Constable Liam O’Mahony, who said, “I’m from the Police, Chris, is that your name?” and the accused replied, “Yes”, and then he said, “Chris, you’re under arrest for the offence of make demands accompanied with threats against one Craig Miller.” and the accused replied, “I’m just passing on a message.” Police took the accused to the City Watch House.
At the police station, after declining, as he was entitled to do, to answer questions about what had happened between him and the complainant on 4 March 2011, the accused was charged with the offence that on 4 March 2011, with a threat to endanger the health of a person, he made a demand of the complainant, contrary to s 32(2)(a) of the Crimes Act 1900 (ACT), and, after being charged, he was remanded in custody to appear on the following day before a magistrate in the Magistrate Court to answer the charge.
Accordingly, on 19 March 2011 the accused appeared before a magistrate in the Magistrates Court in relation to the charge and a magistrate stood over the proceedings to 28 April 2011 and granted conditional bail to the accused.
On 28 April 2011 the accused appeared again before a magistrate in the Magistrates Court and, on his being arraigned with the charge, he pleaded not guilty to the charge and the proceedings were stood over for a case management hearing.
On 21 July 2011 the accused was committed by a magistrate in the Magistrates Court to appear in this court to stand his trial.
On 6 December 2011 the accused filed a Notice electing, pursuant to s 68B of the Supreme Court Act 1933 (ACT), to be tried by a judge alone. I am satisfied that the accused received advice from his solicitor as to the effect of electing to have trial by a judge alone, rather than a trial by a judge and jury.
Also on 6 December 2011 the Registrar of this court fixed the trial for 25 March 2013. However, on 18 May 2012 the date for the trial was brought forward to 9 July 2012. It was later changed to 12 July 2012.
Thus, on 12 July 2012 the accused appeared before me to stand his trial. He was arraigned with the charge and he pleaded not guilty to it. Although I did not hear evidence from any witness called by the Crown prosecutor, I received the following exhibits tendered by the Crown prosecutor:
AA Notice of Admission [that the accused is the male person whose voice is heard on the recording having a conversation with Craig Miller on 4 March 2011];
BStatement 7 March 2011 of Craig Michael Miller;
CStatement 8 March 2011 of Jodie Ann Miller;
D1USB stick of the recording;
D2Transcript of the recorded conversation;
EStatement 25 April 2011 of Senior Constable Liam O’Mahony
I record that the accused did not give evidence or call evidence during the trial.
As I am the judge of the facts as well as the judge of the law, I recognise that the following principles, which are designed to ensure that the accused receives a fair trial according to law, govern the trial.
i.The Crown has the burden to prove the guilt of the accused.
ii.The accused does not have any burden to prove anything.
iii.The level or standard of proof is proof beyond reasonable doubt.
iv.The accused is presumed to be innocent unless and until his guilt is proved by the evidence beyond reasonable doubt.
v.I must bring an open and unbiased mind to the evidence, I must view it coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process.
vi.I must assess the evidence rationally, using logic and common sense.
vii.I may accept a witness' evidence wholly or in part or reject a witness' evidence wholly or in part.
viii.The accused's silence in court is not evidence against him, it does not constitute an admission of anything by him, it cannot be used to fill any gaps in the evidence that I see and it cannot be used to add weight to the evidence that I accept.
ix.If the evidence satisfies me beyond reasonable doubt of the accused's guilt, then the accused loses the presumption of innocence and I must find him to be guilty.
x.If, however, the evidence fails to satisfy me beyond reasonable doubt of the accused's guilt, then the accused remains presumed to be innocent and I must find him to be not guilty.
The essential elements of the charge brought against the accused are that:
i.The accused made a demand of the complainant;
ii.The demand was with a threat;
iii.The threat was to endanger the health, safety or physical wellbeing of a person; and
iv.The person against whom the threat was made is a person other than the person making the demand or an accomplice of the person making the demand.
Of course, the accused must be found to have intended to make the demand and have intended to make the threat.
The Crimes Act does not define either “demand” or “threat”. However, although the Criminal Code2002 (ACT) does not define “demand”, the Code defines “threat” to include, “a threat made by any conduct, whether explicit or implicit and whether conditional or unconditional.”
The Oxford English Dictionary defines “demand” to mean, as a noun, “an insistent and peremptory request, made as of right”, and, as a verb, to “ask for something insistently and urgently, as a right.”
The Macquarie Dictionary defines “demand” to mean, inter alia, “to ask for with authority”, “to claim as of right”, “to ask for peremptorily or urgently.”
The Oxford English Dictionary defines “threat” to mean, “a declaration of an intention to punish or hurt”, “an indication of something undesirable coming”, and a “warning of the infliction of harm.”
The Macquarie Dictionary defines “threat” to mean, “1. a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace. 2. An indication of probable evil to come; something that gives indication of causing evil or harm.”
Whether words amount to a demand is a question of fact to be answered on an objective test. If all the circumstances are such that an ordinary reasonable man would understand that the demand was being made on him, then a demand has been made. I do not doubt that those things numbered (x), (xiii), (xiv), (xviii), (xxi), (xxiii), (xxiv) and (xxv) in paragraph 14 said by the accused to the complainant amount, in all the circumstances, to a demand and that the accused, when he said those things to the complainant, intended to make a demand upon the complainant. Frankly, I cannot see any valid argument that the accused did not make a demand upon the complainant for payment of an amount of $60,000 with an initial payment of at least $20,000.
Whether words, or conduct, or words and conduct amount to a threat is also a question of fact to be answered on an objective test. Although concerning the offence of making a demand with a menace, in R v Clear 1968 2 WLR 122, the court said:
The test of whether the threat is a menace is whether it is of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand.
I accept that those things numbered (xi), (xii), (xv), (xvi), (xvii), (xix) and (xxii) in paragraph 14 said by the accused to the complainant amount to a threat and that the accused, when he said those things to the complainant, intended to threaten the complainant. Again, I cannot see any valid argument that the accused did not make a threat to the complainant that, if he did not pay the amount demanded, something would happen to him or his wife or his children.
As to the issues of demand and threat, the head note to the appeal of Collister and Warhurst (1955) 39 Cr App R 100 is this:
On a charge of demanding money by menaces, an actual substantive demand, either express or by unequivocal gesture, is not an essential ingredient of the offence, nor need the menaces be expressed. If, although there has been no such expressed demand or threat, the demeanour of the prisoner and the circumstances of the case are such that an ordinary, reasonable man would understand that a demand for money was being made on him and that demand has been accompanied by menaces, whether direct or veiled, so that the balance of an ordinary mind would likely to be upset, these two elements of the offence are established.
And Starke J in appeal of Dixon-Jenkins v R (1985) 14 A Crim R 372, said this:
In order to establish a demand and a threat to injure, it must be established that the accused deliberately and consciously made the demand on another and accompanied that demand with a threat to injure some person, and if that is proved, the offence is established. The person to be injured has not got to be the person to whom the demand is made and it is not an element of the crime and it does not matter if the accused did not intend to carry out the threat.

In my view, the demand made by the accused to the complainant with the threat falls squarely within the four corners of these decisions.

The next issue, whether the threat made by the accused was a threat to endanger the health, safety or physical wellbeing of another person, is, like the other issues, a question of fact to be answered on an objective test. The person making the threat need not be the person who is to carry out the threat; it would be an absurd interpretation of s 32(2)(a) of Crimes Act that the person making the demand and threat would have to be the person to carry out the threat. Indeed, the person making the threat need not intend that the threat be carried out. The person to whom the threat is made need not be the person upon whom the threat is to be carried out. Indeed, the person upon whom the threat is to be carried out may be any person other than the person making the demand or an accomplice of that person. However, the threat must be one to endanger the health, safety or wellbeing of a person. A threat to burn down a building or to set fire to a motor vehicle or to blow up an aircraft or to disclose an adulterous relationship or to publish compromising photographs is not a threat to endanger the health, safety or wellbeing of another person. I accept that those things numbered (xii), (xiii), (xv), (xvi), (xvi), (xvii), (xix) and (xxii) in paragraph 14 said by the accused to the complainant amount to a threat to endanger a person's health or wellbeing. I infer from what the accused said that the threat was to harm the complainant or the complainant's wife or the complainant's children. The very fact that the accused referred to the complainant's wife and children and to his knowing where the complainant lived was intended to instil fear in the complainant that his wife and children were exposed to harm. I do not doubt that the accused intended that the complainant would fear that the threat might be carried out and that his purpose when making the threat was that the accused would so fear that it would be carried out. For whatever other reason, I ask myself rhetorically, did the accused make the threat to the complainant?
The final issue is whether the person against whom the threat was made is a person other than the accused or an accomplice of the accused. It would be obvious from what I have said that the person against whom the threat was made was the complainant or his wife or his children.
In the result, I am satisfied beyond reasonable doubt that, on 4 March 2011 the accused made a demand upon the complainant with a threat to endanger the health or wellbeing of a person contrary to s 32(2)(a) of the Crimes Act and I find him to be guilty of the offence.
I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate: Katie van den Bos
Date: 31 July 2012

Counsel for the prosecution:  Ms M Moss
Solicitor for the prosecution:  The ACT Director of Public Prosecutions
Counsel for the accused:  Mr K Saeedi
Solicitor for the accused:  Kamy Saeedi Lawyers
Date of hearing:  12 July 2012
Date of judgment:  25 July 2012

[2012] ACTSC 124

July 25, 2012