R v Kubik

[1995] QCA 275

IN THE COURT OF APPEAL [1995] QCA 275

SUPREME COURT OF QUEENSLAND	C.A. No. 153 of 1995
Brisbane
[R. v. Kubik]

T H E Q U E E N

v.

GEORGE FALCO KUBIK

Appellant

FITZGERALD P.
DAVIES J.A.

SHEPHERDSON J.

Judgment delivered 16/06/1995

REASONS FOR JUDGMENT - THE COURT

Appeal against conviction dismissed.

CATCHWORDS: AMENDMENT OF INDICTMENT - whether the trial judge erred in permitting the amendment to the indictment after the close of the prosecution and erred in refusing to adjourn the trial to another jury after permitting the amendment

DIRECTIONS TO THE JURY - whether sufficient

UNSAFE AND UNSATISFACTORY VERDICT

Counsel:	Ms J.M. Dick for the Appellant D. Bullock for the Respondent
Solicitors:	Boe & Hogan for the Appellant Queensland Director of Public Prosecutions for the Respondent

Date of Hearing:30/05/1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/06/1995

The appellant has appealed against his conviction in the

District Court at Brisbane on 6 April 1995 on one count of

extortion on 12 January 1994. The indictment, as originally

presented, charged the appellant in the following terms:
"That on the 12th day of January 1994 at Woodridge in the

State of Queensland you orally demanded from one Judith Main Thompson the performance of services namely immediate access to an infant child without reasonable or probable cause and containing threats that you would set fire to the office of the Department of Family Services if the said Judith Main Thompson did not comply with the said demand with intent thereby to gain the performance of services from the said Judith Main Thompson."

At the end of the prosecution case, counsel appearing for the

appellant at the trial raised a number of matters with the judge, one of which was that the indictment alleged that "the

accused orally demanded that Mrs Thompson perform access to an infant child". The trial judge, without deciding whether the indictment was capable of bearing that meaning, permitted the

prosecution to amend the indictment by (i) adding after the word

"namely" the words "providing the said George Falco Kubik", and (ii) in front of the word "infant" substituting the word "his"

for the word "an".

Counsel for the appellant at trial then sought a retrial before

another jury, which was refused.

On appeal, it was submitted for the appellant that the trial

judge erred in permitting the amendment to the indictment after

the close of the prosecution case and erred in refusing to adjourn the trial to another jury after permitting the amendment.

Neither point has any substance. Although the indictment might

have been better drafted, it specified all necessary elements of

the offence against sub-s. 415(b) of the Code charged against the appellant, and its meaning was quite unaffected by the

changes which were made.

The case against the appellant may be briefly stated.

On 12 January 1994, a baby, Joshua, born to the appellant and

his wife on 9 January 1994 at the Logan Hospital, was in the

custody of the Director-General of the Department of Family Services and Aboriginal and Islander Affairs pursuant to an

order which had been made in the Beenleigh Magistrates Court. The order had been made between 9.00 and 9.30 a.m. on 12

January, and the appellant was in the Magistrates Court when the

order was made. No suggestion has been made that the order was not properly made or that the baby was not properly in the Director-General's custody.

At about noon to 12.30 p.m. on that day, the appellant arrived

at the departmental office at Woodridge where he spoke to a departmental employee, Judith Main Thompson, and said that he

wanted to see his child and he wanted to see him now. Ms. Thompson told the appellant that if he went home a nominated

Family Services worker would call him later to discuss it. The appellant responded that that worker was not allowed to call him and if he did, "I'll fucking kill him". Ms. Thompson told the appellant she could not help him, that she was "leaving the counter", and that if he refused to leave the office she would call the police. The appellant stated that, if she called the police, he would "fucking punch my lights out". She started to

walk away from the counter and the appellant yelled "I'm going to get some stuff and burn the fucking place down if you don't

get my child here now". Ms. Thompson continued to walk away

with her back turned to the appellant, and he left, turning out the lights in the waiting area as he went. Shortly afterwards,

he departed in his vehicle.

Under sub-s. 415(b) of the Code, so far as presently material, any person who with intent to gain the performance of services from any person orally demands without reasonable or probable

cause the performance of services from any person with threats of injury or detriment of any kind to be caused to property if the demand is not complied with is guilty of a crime.

A number of grounds of appeal were abandoned, but one of the

complaints persevered in was that the trial judge erroneously instructed the jury that the defence had submitted "that the Crown had not proved beyond reasonable doubt that the oral

demand was made without reasonable or probable cause". The

relevant instruction by the trial judge to the jury was in the
following terms:
"The submission is that what he did was reasonable, that as

a parent of the child, he would probably be upset anyway with the Department having custody, that he wanted immediate access and he wanted access as quickly as possible, and so what he demanded was reasonable, or you would have at least a reasonable doubt thereof."

The appellant's ground of appeal in relation to this matter is

that defence counsel at the trial had not made such a submission

to the jury and the trial judge "erroneously put the defence submissions thereby despoiling or substantially weakening the defence argument to the jury".

It is instructive to note what passed between the trial judge and counsel who represented the appellant at trial on this matter after the jury had retired:

"MR MARTIN:	Your Honour, could I just make this plain. I know that I have asked your Honour to rule and to explain the law on without reasonable or probable cause, but I wish to place on record that I did not actually address the jury on that aspect. ...
HIS HONOUR:	... I gathered yesterday from what you said that you wanted some reference made to it, but the reference to it could not have been unfavourable to the defence.

MR MARTIN: No, your Honour. I still ask that your Honour do that and you have done that. The point that I am complaining about or placing on the record is that you have attributed certain submissions to me relative to that. I am not asking for a redirection on that. I am simply putting on the record equally ...

HIS HONOUR:  I thought they were the submissions you referred to yesterday that you wanted put to the jury.

MR MARTIN: Yes, but not attributable to me.

HIS HONOUR:  ...

MR MARTIN: I am not complaining about the content. It is only about it being attributable to me and I am not asking for a redirection. I just wish to place it on the record ..."

In these circumstances, it is plain that the point now raised by

the appellant is wholly devoid of merit.

Another ground of appeal was that the judge "erred in directing the jury as to intent relative to threats". The foundation for this argument is that the appellant's intent in making the

threat was an element of the Crown case. After it had retired,

the jury returned to ask for a definition of "threat". The

trial judge said:

"... Threat is an ordinary English word. You might think

that a threat is some sort of indication of intention

to cause harm or damage. ..."

The submission for the appellant was that this was an erroneous

direction; that a threat itself was sufficient to prove

intention - i.e., to extort or gain the performance of services

- without properly directing the jury that the Crown had to
prove that intention beyond reasonable doubt.

Of course, what the trial judge said conveyed no such meaning. In response to a quite specific request as to what was involved

in a threat, the trial judge gave an explanation which is not otherwise complained of. He did that in the context of a quite clear direction that the jury had to be satisfied beyond reasonable doubt that the appellant's intention was to gain the performance of the specified services from Ms. Thompson, "not

... whether or not he was going to burn the place down. You have to consider whether he made oral demands containing

threats. But when you are talking about intention, was his intention thereby to gain the performance of the services of Ms.

Thompson?"

Finally, it was submitted that the verdict was unsafe and

unsatisfactory because the jury could not be satisfied beyond reasonable doubt that the complainant made the threat with intent to cause Ms. Thompson to do what he demanded. In the

written outline for the appellant, this ground seemed to be erroneously based upon the premise that it was necessary for the prosecution to prove that the appellant intended to carry out

his threat. Thus, in that context, it was submitted that he did

nothing overt to demonstrate such an intention or that what he

said was "anything more than angry or abusive words".

Much the same points were made in the this Court in relation,

however,to a proposition that the appellant's intent to obtain

what he wanted from Ms Thompson was not established. We cannot conceive of any other reason why he would have gone to the departmental office and made the statements which he did.

There is no substance in any of the points made on behalf of the

appellant and the appeal will be dismissed.