R v Li; R v McKenzie; R v Pisasale

Case [2020] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

R v Li; R v McKenzie; R v Pisasale [2020] QCA 39

PARTIES:

In CA No 206 of 2019:

R
v
LI, Yutian
(appellant)

In CA No 214 of 2019:

R
v
McKENZIE, Cameron James
(appellant)

In CA No 219 of 2019:

R
v
PISASALE, Paul John
(appellant)

FILE NO/S:

CA No 206 of 2019
CA No 214 of 2019
CA No 219 of 2019
DC No 2956 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

District Court in Brisbane – Date of Convictions: 24 July 2019 (Farr SC DCJ)

DELIVERED ON:

10 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2019

JUDGES:

Morrison and Philippides JJA and Mullins AJA

ORDER:

In CA No 206 of 2019:

Appeal dismissed.

In CA No 214 of 2019:

Appeal dismissed.

In CA No 219 of 2019:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – EXTORTION AND LIKE OFFENCES – EXTORTION OR DEMANDING WITH MENACES – where Pisasale was told by Li that she had been wronged by the complainant to her financial detriment – where Pisasale resolved that he would try to get Li’s costs from the complainant – where Li had said to Pisasale that she wanted to punish the complainant – where Pisasale made a number of telephone calls to the complainant in which he demanded the complainant pay a sum of money between $5,000 and $10,000 for the costs, or part of the costs, of an investigation carried out by Pisasale’s private investigation company – where Pisasale threatened to cause detriment to the complainant – where Pisasale had McKenzie, a solicitor friend, demand the complainant pay a large sum of money which was said to reflect expenses incurred for a private investigator, miscellaneous charges and legal costs – where the demand in the letter was accompanied by a threat to cause a detriment to the complainant – where Li encouraged, aided and joined in sending that letter saying that she wanted to punish the complainant – where the above events resulted in two charges of extortion, that is making demands without reasonable cause, with intent to gain a benefit or cause a detriment, contrary to s 415 of the Criminal Code – where Li, Pisasale and McKenzie were all found guilty on both charges – where all three appellants challenge their convictions – whether the grounds of appeal have merit

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where it is contended that the verdicts are unreasonable and not supported by the evidence – whether or not the verdict is supported by the evidence – whether or not the verdict is unreasonable and against the weight of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where it is submitted that the learned trial judge erred in…

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Details
AGLC
R v Li; R v McKenzie; R v Pisasale [2020] QCA 39
Case
[2020] QCA 39
Decision Date

CaseChat Overview and Summary

The appellants in this case, Xin Li, Christopher Pisasale and David McKenzie, were convicted of two counts of extortion under section 415 of the Criminal Code (Qld). The matter arose out of an incident in which Li had instigated Pisasale into pursuing the complainant for money, which Pisasale did by making threats to the complainant. McKenzie, a solicitor, assisted Pisasale by writing a letter demanding a sum of money from the complainant, which was also accompanied by a threat. All three appellants were found guilty and have appealed against their convictions and sentences. The court had to consider whether the verdicts were unreasonable or not supported by the evidence, whether there were errors in the trial judge's directions to the jury, and whether the exclusion of certain defences led to a miscarriage of justice.

The court found that the verdicts were supported by the evidence and were not unreasonable. The appellants argued that the trial judge had erred in not directing the jury on the application of section 24 of the Criminal Code and in directing the jury on the application of section 22(2) of the Criminal Code in relation to section 415 of the Criminal Code. The court found that the trial judge's directions were correct, and the exclusion of certain defences did not result in a miscarriage of justice. The court also found that the verdicts were not unreasonable or against the weight of the evidence.

The court dismissed all grounds of appeal and affirmed the convictions and sentences of the appellants. The orders of the court were that the appeals be dismissed in each case. The appellants were found guilty of the charges of extortion, and the court upheld the convictions and sentences imposed by the trial judge. The court found that the evidence was sufficient to support the verdicts and that the trial judge's directions to the jury were correct. The court also found that the exclusion of certain defences did not result in a miscarriage of justice. The appeals were dismissed, and the convictions and sentences of the appellants were affirmed.

Orders

Orders of the court

In CA No 206 of 2019:

Appeal dismissed.

In CA No 214 of 2019:

Appeal dismissed.

In CA No 219 of 2019:

Appeal dismissed.

Background

Background to the litigation

Mr McKenzie’s application for leave to appeal against sentence was abandoned at the hearing before this Court.Background In setting out the relevant facts, both here and in relation to individual defendants, it is important to recognise that not all evidence was admissible against all defendants. Thus:(a)evidence not admissible against Ms Li: phone calls between Mr Pisasale and Mr Zenonos[1], and between Mr Pisasale and Mr Di Carlo;[2] recording of interview with Mr McKenzie;[3](b)evidence not admissible against Mr Pisasale: recording of interview with Mr McKenzie;[4] and(c)evidence not admissible against Mr McKenzie: phone calls between Mr Pisasale and Mr Zenonos, Mr Xin Li, Mr Di Carlo and Ms Li, and admitted facts concerning certain subscribed phone numbers of Mr Xin Li, Mr Pisasale, Ms Li, Mr McKenzie, Mr Di Carlo, Mr Pinzone and Mr Zenonos.[5][1]Call 1, Exhibit 2, transcript at Appeal Book (AB) 509.[2]Calls 3 and 15, Exhibit 2, transcripts at AB 512 and 572.[3]Exhibit 9, AB 596.[4]Exhibit 9, AB 596.[5]Calls 1-13 inclusive, Exhibit 2, transcripts at AB 509, 510, 512, 525, 529, 531, 533, 534, 535, 536, 540, 556 and 558; Exhibit 1, AB 394, admitted facts 2a, 2f, 2g, 2h, 9, 19-26 and 34. The jury were directed accordingly.[6] In the analysis of issues later in these reasons I have restricted consideration of the evidence to that which was admissible against the particular defendant in issue.[6]The jury were given a handout which listed the evidence by reference to individual defendants: AB 707. In 2016 Ms Li had a relationship with the complainant (Xin Li). They met in early 2016 when he was a taxi driver, and drove her from Sydney Airport. They then stayed in daily contact, Ms Li in China and the complainant in Sydney. They sent texts and videos, and spoke to one another, all via an application called WeChat. The complainant had previously been married and divorced, and had a seven year old son from that marriage. In March 2016 he married for the second time.[7] By the time he met Ms Li, the complainant and LSW had already separated.[7]She has no connection with the relevant events but, as will be seen, her name was wrongly used in subsequent correspondence from Mr McKenzie. I shall refer to her as “LSW”. The complainant and Ms Li subsequently met face to face only three times. The first time was in June 2016 when they met in Singapore and travelled to Bali for a holiday. They spoke of loving each other, and Ms Li said she wanted to marry the complainant. While in Bali Ms Li told him she was married but had been separated for some time. After the Bali trip they discussed their future, including Ms Li coming to live in Australia and marrying the complainant, but no promises were made. They kept up contact via WeChat. The second time was in October 2016 when they again met in Singapore and travelled to the Maldives for a holiday. He told Ms Li about his son, and that he was married. He returned to Sydney. The WeChat contact continued, regularly but not daily. The complainant decided that he did not want to continue the relationship. He lied to Ms Li, saying that he was sick.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground fails.Conclusion I have had the advantage of reading the additional reasons of Mullins AJA, with which I agree. As all grounds have failed the appeals should be dismissed. I propose the following orders:1.In CA No. 206 of 2019, appeal dismissed.2.In CA No. 214 of 2019, appeal dismissed.3.In CA No. 219 of 2019, appeal dismissed. PHILIPPIDES JA: I agree that the appeals should be dismissed for the reasons given by Morrison JA. MULLINS AJA: Subject to the following additional comments, I agree with the orders proposed by and the reasons of Morrison JA. Both Mr Pisasale and Mr McKenzie assert there was an error on the part of the learned primary judge in directing on the relationship between s 22(2) and s 415 of the Criminal Code (Qld). It is submitted that the limitation placed by the trial judge on the defence applying to elements 1, 2 and 3 of the offence of extortion and not element 4 was incorrect. If either appellant was to succeed on the defence under s 22(2) of the Code, the jury would have to be satisfied the prosecution had failed to prove one of the elements of the offence of extortion on the basis of the honest claim of right asserted by that appellant. The jury had been directed that the elements of the offence of extortion were:“1.The making of a demand;2.Accompanying that demand was the making of a threat to cause a detriment;3.The demander had an intent to gain a benefit or to cause a detriment; and4.The absence of reasonable cause.” In practical terms, the defence could succeed only if the prosecution failed to prove beyond reasonable doubt one of the matters identified by the trial judge in giving the direction on the defence:“1.the defendant did not honestly believe he was entitled to make the demand; or2.the defendant did not honestly believe that he was entitled to make the threat to cause the detriment (that is, the threat that was actually made) when he made the demand; or3.the defendant did not honestly believe that he was entitled to gain a benefit for Yutian Li or to cause a detriment to Xin Li;” That is because element 4 relates to whether the prosecution excluded beyond reasonable doubt that the making of the particular demand and the threat that accompanied it was objectively without reasonable cause. Theoretically, element 4 could have also been the subject of a direction under s 22(2), but to be successful it could apply only to the circumstances that would have already resulted in the defence succeeding, because of the failure of the prosecution to exclude the defence in relation to one of elements 1, 2 or 3. In the circumstances of this trial, it was therefore unnecessary for the trial judge to complicate the direction further by giving a direction with no practical consequence in relation to the application of s 22(2) of the Code to element 4.

Ratio Decidendi

Legal Principle Established

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