R v Jessen

[1996] QCA 449

IN THE COURT OF APPEAL	[1996] QCA 449
SUPREME COURT OF QUEENSLAND

C.A. No. 448 of 1996

Brisbane

Before Fitzgerald P.
Thomas J.
White J.

[R. v. Jessen]

THE QUEEN

v.

HANS PETER DAVID JESSEN

(Applicant)

Fitzgerald P.
Thomas J.

White J.

Judgment delivered 19 November 1996

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

BOTH THE APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL AGAINST CONVICTION AND THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ARE REFUSED.

CATCHWORDS:	EXTENSION OF TIME - CONVICTION - extortion - precise nature of the case against the applicant unclear - whether the facts relied upon by the Crown and upon which the applicant presented his guilty plea were sufficient to support the indictment i.e. whether there was any relevant threat of detriment - s. 415(1)(b) Criminal Code.
Joseph Gill’s Case 1 Lew. 304, 168 E.R. 1049 R. v. Durham Quarter Sessions; ex parte Virgo [1952] 2 Q.B. 1 R. v. Pollock [1967] 2 Q.B. 195 R. v. Rasmussen and Spiegelass (1928) 28 S.R.N.S.W. 349 R. v. Richards [1868] 11 Cox, CC 43 R. v. The Justices at Cloncurry; ex parte Ryan [1978] Qd.R. 213 Thorne v. Motor Trade Association [1937] A.C. 797 Walton’s Case [1863] L. & C. 288
SENTENCE - insignificant criminal history, cooperated from an early stage, pleaded guilty and experienced financial difficulties at the time - extremely serious offence involving a substantial sum of money relating to the due administration of justice.
Counsel:	Mr A. Rafter for the applicant. Mr D. Bullock for the respondent.
Solicitors:	Legal Aid Office for the applicant. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	11 November 1996

REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 19 November 1996

The applicant has applied for an extension of time within which to appeal against his conviction of extortion between 21 and 29 February this year and for leave to appeal against the sentence imposed, imprisonment for three years with a recommendation that he be eligible for consideration for parole after serving nine months. The applicant pleaded guilty in the District Court at Southport on 3 October, and was sentenced that day. The application for an extension of time in which to appeal against conviction, arises out of the circumstance that an analysis of the information before the District Court for the purpose of considering the application for leave to appeal against sentence left unclear the precise nature of the case against the applicant and whether, as alleged in the indictment, he “orally demanded from one Ernest Michael Goldsmith a sum of money without reasonable and probable cause with threats of detriment to be caused to one Neil Hoffman namely that [he] would provide evidence at a committal hearing implicating the said Neil Hoffman in the commission of a criminal offence if the said Ernest Michael Goldsmith did not comply with the said demand with intent thereby then to extort money from the said Michael Goldsmith”: see Criminal Code, sub-s. 415(1)(b)(i). The maximum penalty for such a crime is imprisonment for 14 years.

The prosecutor informed the sentencing judge that “... the facts of this matter ... are somewhat unusual”. He went on to state that the applicant had provided information with respect to “the possible commission of drug offences” to “various investigative bodies ... about two years ago”, and “eventually had his matters taken up by the Drug Enforcement Agency in New South Wales”. After enquiring about the possibility of a reward and being informed that “in the end its a discretionary exercise whether ultimately a award is given”, he “provided information to police and associated with two other people wearing transmitters and had various conversations that were ultimately recorded by police and as a result of the operation ... two people were arrested in New South Wales”, one of whom was Hoffman. As a result, “Hoffman was charged with being knowingly concerned in the supply of cannabis and it was a large amount of cannabis ...”. The applicant became a potential witness in the proceedings against Hoffman and “made representations to seek a reward, and as yet ... no reward has been paid as those proceedings remain, at this stage, unresolved, although there has been some sums of money advanced to the [applicant], something in the order of between six and $9,000”.

After identifying Goldsmith as a friend and former business partner of Hoffman and a person who also knew the applicant, the prosecutor continued:

“On 22 February 1996 Mr Goldsmith was contacted by the [applicant]. The [applicant] introduced himself and said that he would like a meeting in relation to helping Neil Hoffman, and Goldsmith was aware that Hoffman at that stage had been charged and was awaiting committal proceedings in which this [applicant] was to be a witness for the prosecution. So they then made an agreement to meet later at Sanctuary Cove and about an hour later they met and Goldsmith had armed himself with a tape recorder which he secreted on his person. He then had a conversation with the [applicant] in which it was initially indicated that the [applicant] had information that could help Hoffman with respect to the offences with which he was facing in New South Wales, and without going into any specific details of that information, a further meeting was then arranged between them.”

Goldsmith contacted a solicitor and, through the solicitor police, and:

“... was left by police to continue the meetings with the [applicant] to see how they were going to resolve the matter and he was advised to record each of the meetings on a tape recorder, which he mostly did.

Now, the initial meeting had left it at the stage where the [applicant] had indicated he had information and wanted to know whether Hoffman would be prepared to pay for it. They met again the next day and Mr Goldsmith pretended that Hoffman was interested in paying for the information if that would result in him being helped in respect of the offences for which he is charged.

There were then a series of meetings between Goldsmith and the [applicant], the end result of which was that they [applicant] indicated that he was prepared to provide information to Hoffman’s legal advisors, which if it was then phrased to him in a suitable question at the committal proceedings, would result in Hoffman not being committed for trial. The clear inference from the conversations is that the [applicant’s] answers to those questions would not have been truthful. In return, he wanted $250,000.00.

Ultimately it was arranged that there would be an exchange of this piece of information to the lawyers for the $250,000.00 ... . Now, that meeting was monitored by police. It was taped. Police had provided Mr Goldsmith with a bag in which he pretended there was $250,000.00. He met the [applicant], there was an exchange with the bag and they had gone into some detail about how this exchange would take place, prior to meeting, the [applicant] seeking to ensure that it would not look obvious and his chances of discovery would be minimal.

At the exchange, the [applicant] handed Mr Goldsmith a document” (which was subsequently discovered to be a fictitious contract of sale) “... and indicated in a veiled and roundabout fashion that the information Goldsmith was seeking would be forthcoming shortly, but it sought to give an air of legitimacy to the transaction that took place.

... Once that meeting had taken place ... police intercepted the [applicant] and he agreed to accompany them, eventually, after his premises were searched, back to the police station. He was then interviewed and he did ultimately admit to his part in these offences ... . So in the end he agreed that he had made the offer to have this addition to his evidence which would exculpate Hoffman for the payment of $250,000.00, although he did claim in his interview that in the end he wasn’t going to change his evidence and that in essence all he was doing was trying to get $250,000.00 by pretending he was.”

After enquiry from the sentencing judge, the prosecutor informed his Honour that the committal proceedings in New South Wales against Hoffman and Cornwall had concluded and both had been committed for trial, and that the applicant “would have” testified on behalf of the prosecution.

Later, the prosecutor added that:

“... in this case there is that element to the offence which does strike at the due administration of justice; that regardless of whether he was going to do so or not, the [applicant] clearly indicated that he was prepared to compromise his evidence in what were very serious offences. There can ... be little doubt that the offence was planned and calculated. The [applicant] sought out Goldsmith. He was very careful in the terms he used in the negotiations in seeking the $250,000.00.”

It is necessary also to set out part of the submissions made on behalf of the applicant to the sentencing judge. The applicant’s solicitor said:

“It’s suggested by my learned friend that essentially what he was offering to do was to give perhaps false evidence with a view to assisting Hoffman and/or Cornwall. On my client’s instructions what he was in fact offering to do was to give evidence of which the Crown did not know. It was not a matter of giving false evidence, it was a matter of giving evidence which might help to mitigate or exculpate the people concerned.

Now, in that respect he was under no obligation to tell the Crown that he was possessed of this information, nor was he under any obligation to tell the Crown that he was, if asked the right question, that he was going to give that evidence. It’s difficult to speculate as to exactly what he could or would have said, but he makes the point that he was offering to say something which was true, but about which the Crown did not know, and if he was asked the right question by defence counsel he would give the answer which was a truthful answer and which might ultimately assist the people who were defendants in those proceedings.

So it was not an offer to lie or an offer to cheat or to tamper with the system of justice. He was essentially saying, ‘Look, the Crown doesn’t know about this and if I’m asked the right question I’ll answer the question.’ That’s essentially what the approach was all about. That’s why, as my learned friend says, there’s been quite some deal of correspondence and negotiation going back and forth to work out what really this offence should be called, and ultimately there is a plea of guilty today to extortion.

Count 1, as I’ve explained, essentially from my client’s point of view, isn’t what he was offering to do. What he was offering to do - or what he was trying to do was to get money from these people and in exchange he would give evidence if he was asked the correct question.”

In his sentencing remarks, his Honour referred to the different versions put before him by the prosecution and the applicant but gave no indication of the basis upon which he was proceeding. In the circumstances, it is appropriate to act on the basis of the applicant’s version, which, in my opinion, does reveal an offence of extortion although not one which corresponds with the form of the indictment. The threat of detriment to Hoffman made by the applicant, according to his solicitor, was to withhold evidence advantageous to Hoffman while giving evidence in proceedings against Hoffman unless the applicant was paid the sum demanded.

I would therefore refuse the application for an extension of time within which to appeal against conviction.

The applicant is aged 40 years, and has an insignificant criminal history. He cooperated from an early stage and pleaded guilty. I am prepared to assume - as the applicant contended - that the sentencing judge accepted that he was financially straitened, and desperate because of his view of the situation in which he found himself for which he blamed the investigating authorities to whom he had provided information.

Even so, his offence was extremely serious, related to the due administration of justice and involved a substantial amount of money.

I can see no substance in the applicant’s submission that the sentence is manifestly excessive in that the whole of the period of imprisonment should have been suspended. In my opinion, the sentence imposed was within the range of a sound sentencing discretion.

I would therefore also refuse the application for leave to appeal against sentence.

In summary, both the application for an extension of time within which to appeal against conviction and the application for leave to appeal against sentence should be refused.

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 19 November 1996

This is an application for leave to appeal against sentence. The applicant pleaded guilty to extortion and was sentenced to three years' imprisonment with a recommendation for parole after nine months.

Preliminary question

During the appeal, the Court raised the question whether the facts relied upon by the Crown and upon which the applicant presented his plea of guilty were sufficient to support the indictment. Where a plea of guilty is accompanied by a statement indicating innocence, or where the facts fail to support the charge, a plea of not guilty should be entered, and the conviction entered under such circumstances may be set aside as a nullity (R v. Durham Quarter Sessions ex parte Virgo [1952] 2 QB 1; R v. The Justices at Cloncurry ex parte Ryan [1978] Qd. R. 213). Counsel for the Crown did not oppose extending time for the bringing of an appeal against conviction so that the point could be dealt with. I therefore turn to the preliminary question.

The indictment alleged that on a specified occasion the accused

"orally demanded from one . . Goldsmith a sum of money without reasonable and probable cause with threats of detriment to be caused to one . . Hoffman namely that you would provide evidence at a committal hearing implicating the said Hoffman in the commission of a criminal offence if the said Goldsmith did not comply with the said demand with intent thereby then to extort money from the said Goldsmith."

The charge was brought under s.415(1)(b) of the Code.

The question is whether the facts relied on by the Crown reveal any relevant threats of detriment. The facts were said to be as follows.

The applicant had some time previously approached the drug enforcement agency in New South Wales offering assistance in the implication of offenders. As a result of his information and cooperation two persons, Hoffman and Cornwell, were arrested.

The applicant became disaffected by reason of the disruption to his life and what he perceived as a lack of appropriate assistance from the New South Wales authorities. He then contacted a Mr Goldsmith whom he knew to be a friend and former business partner of Hoffman, who was at that time awaiting committal proceedings for which the applicant was a Crown witness. The applicant arranged a meeting in which he informed Goldsmith that he had information that could help Hoffman with respect to the offences he was facing, and asked whether Hoffman would be prepared to pay for it. Mr Goldsmith pretended that Hoffman would be interested, and further meetings were arranged which were duly recorded. Ultimately the applicant indicated that he was prepared to provide useful information to Hoffman's legal advisers, which would enable them to ask suitable questions at the committal proceedings which, according to the applicant would result in Hoffman not being committed for trial.

Whether it should be inferred that these answers would be untruthful was disputed during the sentencing procedure. The Crown prosecutor submitted that it should inferred that the applicant's answer to those questions would be untruthful, while the solicitor for the applicant stated his instructions as being that the applicant was simply offering to give truthful evidence of which the Crown was unaware, such evidence being of an exculpatory nature. His submission was "he was offering to say something which was true, but about which the Crown did not know, and if he was asked the right question by defence counsel, he would give the answer which was a truthful answer and which might ultimately assist . . the defendant . . ".

The solicitor for the applicant conceded that his client was trying to get money from Goldsmith and Hoffman in exchange for giving helpful evidence. He also submitted on his client's behalf that "he wasn't going to change his evidence and that in essence all he was doing was trying to get $250,000 by pretending he was".

The difficulty that is raised is that the applicant's activities might be characterised as offering
a benefit rather than a detriment, in which case the necessary aspect of detriment would be lacking.
Section 415 is the Queensland Criminal Code statement of certain offences that are often
described as blackmail. The earliest statutory expression of such an offence was in 1722, and further
statutes which bear a closer resemblance to modern statements of these offences were passed in the
UK between 1757 and 1827. The development of some of the relevant concepts is discussed in R v.
Pollock [1967] 2 QB 195, 203-212. Such offences are commonly associated with a mixture of
deceit, threats and the taking of unfair advantage of a person in a vulnerable position. Not
infrequently the offender purports to be negotiating a transaction that is dressed up as a contract.
Glanville Williams (Textbook of Criminal Law 2nd ed, p.832) observes that a demand with menaces
may be difficult to establish "if dressed up as a reciprocal contract" citing the case of Harriette
Wilson:
"The most notorious instance of such moral blackmail was that by Harriette Wilson, a

courtesan of the early 1800s. Finding that her charms alone could no longer sustain her in her style of life, she conceived the idea of writing an account of her many lovers, charging an honorarium for each name left out. If adroitly executed, such a plan might well escape the law of blackmail. A man who, having heard of the projected book, took the initiative of offering money to have his own contribution to the author's life passed by, could hardly claim that he had received a demand. However, there would be a strong likelihood of a court finding an implied demand if this is at all possible on the facts. Harriette went so far as to publish her memoirs by instalments, which increased the pressure on her victims."

This is an example of an offer that on one view could be described as an offer to confer a benefit, but it could also be described as a threat to damage unless money were paid.

The requirement in s.415 to show a "threat of . . detriment of any kind" is in my view at least as wide as the "demand with menaces" description in the English legislation. The following observations by Lord Wright on the ambit of those words in Thorne v. Motor Trade Association (1937) AC 797, 817, 822 indicate that they have a wide reach.

"I think the word 'menace' is to be liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended."

". . there are many cases where a man who has a 'right,' in the sense of a liberty or capacity of doing an act which is not unlawful, but which is calculated seriously to injure another, will be liable to a charge of blackmail if he demands money from that other as the price of abstaining. Such instances indeed are very typical cases of blackmail, . . Thus a man may be possessed of knowledge of discreditable incidents in the victim's life and may seek to extort money by threatening, if he is not paid, to disclose the knowledge to a wife or husband or employer, though the disclosure may not be libellous. Such is a common type of blackmail."

The question whether particular conduct and statements are a threat is a question of fact. Of course the present exercise of this Court is to determine whether the stated facts are capable of amounting to a threat of detriment. Even so the statements of Street CJ in R v. Rasmussen and Spiegelglass (1928) 28 SRNSW 349, 353-354 indicate that the breadth of factors which may permit a jury to find conduct or statements to be a "threat or menace":

"Every threat or menace is not necessarily of a character either to excite fear or alarm. There may be cases where the threat is of such a character that it is apparent that, even on the most liberal construction, it would not be calculated to influence anybody, and I apprehend that in such a case a Judge would be justified in taking the case away from the jury. There may be cases again where the threat, though not necessarily of such a character as to excite either fear or alarm, is of such a character that reasonable men might naturally hold the view that it would be calculated to do so, and in such a case it would, I think, be the duty of a Judge to leave the question whether the conduct of the accused - if believed - brought him within the section, to the jury, with a proper direction as to the law. So also there may be cases where the threat is manifestly of such a character that there can be no doubt but that it would naturally and reasonably operate on the mind not only of the victim of it, but of any reasonable person; and in such a case I do not think that it could be said that a summing up was insufficient or unfair to the accused, if the Judge directed the jury, as a matter of law, that, if they believed the story put before them by the Crown as to the conduct of the accused, it would constitute a menace within the section."

(At pp. 353-354; compare R v. Lacey (1982) 29 SASR 525, 529-531 per King CJ.)

A difficult question can arise as to whether a threat by a person to do something when that person is already under a legal duty to do it, can amount to a relevant threat or menace. A distinction has been drawn between a threat to accuse someone of an offence (which may found such a charge) and a threat to procure witnesses to prove a pending charge (which will not be regarded as such a threat) (Joseph Gill's case, 1 Lew. 304, 168 ER 1049). In that case Bayley J said:

"Threatening to procure witnesses to support a charge already made is not within the Act of Parliament which makes it felony to extort money by threatening to accuse of an indictable offence. It is one thing to accuse, but another to procure witnesses in support of an accusation already made."

That case seems to have been based upon the construction of a statute providing a narrow statement of the offence, and is not apparently based upon any wider principle such as public policy. Again, in Walton's case (1863) L & C 288, 293, Wilde B observed (arguendo) that a threat of enforcing legal process is different from a threat of making an unjust charge affecting a man's character. In that case the prisoner had threatened to execute a distress warrant, without any authority to do so. The conviction was quashed on the ground that the trial judge ruled that the prisoner's conduct constituted a menace within the statute, and did not leave that question for the jury to determine. It has also been observed that

"if an offence of indecency . . has been committed, or if a person bona fide believes that such an offence has been committed, he has a duty to report it. To say, in such circumstances, that one is going to report it, without any intention of using the threat of reporting as a means to extort money or goods, is merely saying that one is going to fulfil a public duty and is not a criminal offence. In our view the intention behind the threat is all important."

(R v. Pollock [1967] 2 QB 195, 211-212.)

Blackburn J is further reported as having stated, in charging a jury -

"If the prisoner intended to extort money by threatening to make the accusation, he is

equally guilty whether it was or was not true, but it is material . . in considering what

was the intention of the prisoner in demanding the money."

And

"If after the accusation is made, with a belief in its truth, the prisoner endeavoured to
compromise it by payment of money, he might be guilty of the offence of

compounding a felony, but he would not be guilty of obtaining money by threats."

(R v. Richards [1868] 11 Cox, CC 43.)

In a situation where a person is bargaining for an advantage derived from the circumstance that he is going to be a witness in a case against the other person, I do not think that a stated intention to give true evidence could without more amount to a threat. But a subtle hint that unless paid he might turn the situation to the disadvantage of the other party might be enough to change the position entirely, and enable it to go to a jury.

Where, as here, an attempt by one person who is in a position to take advantage of someone else who is in trouble seeks to put together a bargain, it is possible for such conduct to be formulated in both a positive and a negative way. One expression of the suggested bargain in the present matter would be "$250,000 for my giving you a list of helpful questions". That wears the appearance of conferring a benefit, and conceals the implied threat. However if the matter is stated as "$250,000 or I will withhold information that would allow you to be acquitted" the character of a threat is more evident, and I should think that it would at least be enough to go to a jury. It is an inescapable inference that unless the money was paid he would not supply the information that would be needed in order to elicit the correct answers, in which case the defendant's chance of acquittal would be significantly impaired.

I therefore do not think that it matters whether the offer to suggest a list of questions and then give helpful evidence was premised upon truthful answers or untruthful ones, except on the question of sentence. The corruptness of the situation would be more evident on the latter premise, but the present question is whether the facts reveal a situation with threats of detriment of any kind to Mr Hoffman. The applicant was in the position of being a person who was going to be required to give evidence in any event, and when he did so he would swear to tell the whole truth. His point I suppose is that if he were not asked the right questions he would tell no lies, but of course he would still be withholding relevant information which would make the difference between a person being convicted or acquitted. In my view a suggestion that he would, unless paid $250,000, act in that way may rightly be characterised as a threat.

On this limited basis then, I consider that the facts as stated during the sentencing process were sufficient to support the charge.

Sentence

It was arranged that the applicant would receive $250,000 in a briefcase in exchange for the information that he was offering that would advantage Mr Hoffman. In the event there was in fact no money in the briefcase given to the applicant, and the document given by the applicant to Goldsmith supplied no relevant information, but consisted of a letter which referred to a purported contract of sale of a business, which would give an air of legitimacy to his receipt of money from Mr Goldsmith, and hinting that he would be providing him with relevant information later.

The learned sentencing judge accepted that the offence was preceded by "desperation" on the applicant's part "resulting from the inadequate level of support that you believed you were receiving," and that the applicant also, through his assistance to the authorities now holds grave fears for his own and his family's safety. According to the applicant's solicitor, the authorities "promised the world" but the applicant "received practically nothing". However when all is said and done, this is a poor explanation for very serious activity, planned and carried out over some time, designed to earn for himself extremely large rewards at the expense of another person. Counsel for the Crown has submitted that offences of this kind are not readily detectable and that custodial sentences are almost invariably imposed. This particular offence struck at the administration of justice. However in the context of that submission it is also relevant to note that had he been charged with what might be thought to have been a more obvious charge arising from these facts, namely attempting to pervert justice, the maximum imprisonment would have been two years.

The applicant had obtained some benefits from the New South Wales authorities, estimated at between $6000 and $9000. He had declined to be placed on a witness protection programme. Having become disillusioned at the difficulty of obtaining a sufficient reward from the authorities whom he had originally volunteered to help, he seems to have felt free to act as a double-agent and to seek to obtain money by offering to help one of the persons who was being charged as the result of his assistance. The administration of justice is placed in serious jeopardy by persons with such attitudes, and a deterrent penalty is appropriate.

I do not think that it is possible to make a comparison between this case and any of the so- called comparable cases to which reference was made (Stevenson CA 170 of 1985, Renwick CA 244 of 1991, Stratton CA 298 of 1991 and Jonasson CA 420 of 1993.). They do emphasise however the seriousness with which courts regard this particular type of offence.

In my view the circumstances required a custodial term. The recommendation for parole after nine months suggests that the learned sentencing judge took full account of the circumstances, including the applicant's frustration and his virtually clean criminal record.

I would refuse the application.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 19 November 1996

I have read the reasons for judgment of the President and Thomas J and agree for the reasons expressed by them both that the facts relied upon by the Crown and upon which the applicant made his plea of guilty were sufficient to support the indictment.

I agree that the sentence imposed including the recommendation for parole made by the
learned sentencing judge was appropriate in all the circumstances and would dismiss the application.