R v Stevenson

[1996] QCA 523

IN THE COURT OF APPEAL	[1996] QCA 523
SUPREME COURT OF QUEENSLAND

C.A. No. 375 of 1996

Brisbane

[R. v. Stevenson]

THE QUEEN

v.

JOHN RICHARD STEVENSON

(Applicant) Appellant

Pincus J.A. Davies J.A. Ambrose J.

Judgment delivered 17 December 1996
Separate reasons for judgment of each member of the Court; Davies J.A. dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO SEEK LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL - Appeal against conviction - extortion - wilful damage - whether indictment defective - consequences of defective indictment - whether trial judge erred in refusing to admit evidence of psychologist - application for extension of time within which to apply for leave to appeal against sentence - whether six years' imprisonment excessive.
Counsel:	Mr. P. Callaghan for the appellant Mr. D. Bullock for the respondent
Solicitors:	Boe & Co. for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	30 October 1996

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17 December 1996

I have had the advantage of reading the reasons of Davies J.A. As appears from his Honour’s analysis, the difficulty about the indictment is that it does not make clear precisely what it was that constituted the offence; the person from whom the performance of services was intended to be gained was not specified. Specification of that person would not have been easy, but the tape relied on by the prosecution seemed, clearly enough, to require performance of services at least by an ombudsman and Mr Justice Demack, the central judge. Similarly, the precise nature of the services intended to be gained was not altogether clear.

But in my view, if the sending of the tapes involved criminality, it constituted only one offence under s. 415; that was the offence of causing a person to receive a writing (consisting of two tape-recordings); the fact that more than one kind of services were sought to be gained, from more than one person, did not convert the offence - causing a person to receive a writing - into two or more: Montgomery v. Stewart (1967) 116 C.L.R. 220, R v. M (1979) C.L.C. 40-565. So, in my view, the possibilities envisaged by the "writing" could all have been covered by appropriate drafting alleging, for example, that the ombudsman was to do certain things and/or Mr Justice Demack was to do others. But it is argued that the failure to set these things out made the indictment not merely inadequately particularised, but bad.

The case is to be distinguished from McGoldrick [1995] 1 Qd.R. 553, where an indictment intended to charge robbery failed to allege either violence or the threat of violence; the result was that it charged stealing only. Here, it cannot be asserted that an essential element of the offence charged has been omitted.

The outcome of the appeal depends in my view on precisely what was decided in John L Pty Ltd v. The Attorney-General for the State of New South Wales (1987) 163 C.L.R. 508. That was a proceeding begun by information, there being no indictment. But the principle of the case was decided in McGoldrick to be applicable to indictments.

Here, in contrast to Johnson v. Miller (1937) 59 C.L.R. 467, the indictment adequately identified the event or happening said to constitute the offence under s. 415; what was wanting was identification of the way or ways in which that event or happening - causing the receipt of the writing - was said to fulfill the description, or one of the descriptions, in the section. The reason why the charge was dismissed, and held to be rightly dismissed, in Johnson v. Miller was because the prosecution declined to say which of 30 possible events constituted the offence.

In Davies v. Ryan (1933) 50 C.L.R. 379, the complaint was one of, to put it simply, selling liquor after the prescribed hours. Evatt J. held that the complaint was sufficient in law, although it did not give particulars of the particular sale relied on. Commenting on that case in the John L case, Brennan J. (as his Honour then was) remarked that there:

" . . . Evatt J. distinguished between a case where a complaint is so defective that the information must be dismissed, and a case where a complaint is lacking in particulars and the defendant is entitled to an order for particulars in order to meet the case against him" (528)

The majority did not deny the validity of that distinction, but held that the information there considered did not sufficiently identify the essential ingredients of the alleged offence (520). I do not read the John L case as deciding that any information which contains inadequate particulars is bad. So to decide would be inconsistent with the approach taken by the Court in Johnson v. Miller, referred to with approval in John L (519); there, as I have pointed out, it was the unwillingness of the prosecution to particularise, not the initial want of particulars, that brought the defence success. The actual decision in John L is explicable, admittedly with some difficulty, on the basis that certain sorts of failures to specify the ingredients of the offence render that information invalid, not merely a fit subject for further particularisation. The view I take of the John L case is consistent with the practice adopted in criminal cases; it also accords with the view adopted in the A.C.T’s Supreme Court in Peterson and Magistrate Soames (1994) 76 A.Crim.R. 291.

It should be added that s. 564 of the Code only requires that certain sorts of particulars be included in the indictment; it is no part of the appellant’s case that this provision was breached. It would, as it seems to me, be going too far to hold on the basis of the John L case, that an indictment which includes all the elements of the offence and does not breach the requirement for particulars in s. 564, is nevertheless invalid for want of particularity. Section 573 clearly implies that an inadequately particularised indictment may be remedied pursuant to a direction of the Court.

A variant of the argument for the appellant, ably presented by Mr Callaghan, was that the indictment was bad, not merely because it did not particularise the person the performance of services by whom it was intended to be gained, but, more fundamentally, because a necessary element was not pleaded. Mr Callaghan submitted that to be valid the indictment had to say, in accordance with s. 415, that there was intent to gain the performance of services "from any person". It is my opinion that this is necessarily implicit in the language used; it would make no sense to allege that there was a demand for the communication of information received by a person and that the intention was to gain the performance of services - but services by an entity other than a person - for example, services by an inanimate object.

Mr Callaghan’s argument was that the indictment was simply invalid and if that were so then the conviction would have to be set aside. In my opinion it was badly drawn, but valid. No request for particularisation was made below. That was not necessarily an error; had the Crown been asked to specify the person intended to perform the services mentioned in the indictment it could have stipulated, at least, the ombudsman and/or Mr Justice Demack. Mr Callaghan pointed out that in the Crown’s outline of submission it was said that "the appellant intended any person at the television station to provide the services". That does not appear to me to be correct, but its incorrectness does not assist the appellant here.

For the reasons I have given, I am in respectful disagreement with the view of Davies J.A., expressed in his Honour’s reasons, as to the validity of the indictment. A second point taken by Mr Callaghan, but not argued in detail, was that the judge should have, but did not allow evidence to be led from a psychologist on certain issues. The psychologist, Mr Acutt, was to be called to assist the jury to understand how or why "[the appellant] would be using the types of expressions that he does . . . in that first tape that was sent to the television station". It appeared from the discussion which took place that, more specifically, Mr Acutt was to be relied on to support evidence given by the appellant to the effect that certain references to an employee on the tape were intended to be to the appellant himself.

I find it difficult to understand how the evidence of the psychologist could have assisted the jury. As the prosecution argued below, the question raised was whether the writing contained "threats of injury . . . to be caused" to any person. If it did, that element of the charge was satisfied. It would be no answer, in my opinion, for the appellant to say that whatever the ordinary meaning of the words he had used, he used them in some special sense, so that there was no threat. The point may be illustrated by asking whether a document which on the face of it contains a threat of the kind described in the section could not found a charge if it were the case that the subjective intention of the writer was to make a joke, or use an ironic expression, not a serious threat. It is what the writing says and what it, sensibly read, means which counts, not what the accused intended by it.

The last point taken by Mr Callaghan relating to conviction was the submission concerning the wilful damage charge. On that point I agree with Davies J.A.

It follows that the appeal against conviction should in my opinion be dismissed.

Sentence

The sentence for the extortion offence was 4 years and for the wilful damage

offence 2 years; it was ordered that the sentences be served cumulatively.

Mr Callaghan argued that the total of 6 years was excessive. Mr Callaghan also pointed out that the application for leave to appeal against sentence [sic], but Mr Bullock for the Crown fairly indicated that he would have no objection to an extension of time if we thought the sentence was too high. The difficulty, however, about the sentence application is that the judge was told by counsel who appeared for the appellant below, that the appellant would not be eligible for parole until the year 2002, under his then sentences.

According to the history set out in the record, the applicant was sentenced in June 1984 to 8 years imprisonment for various offences; subsequently, in 1986, 1987 and 1989 he was given further sentences totalling 42 months in length. These additional sentences are not all stated to be cumulative; let it be assumed that they were, then the ultimate release date would, apart from a factor I shall mention, be December 1995.

According to the applicant’s evidence (p. 137) he was released on parole about April 1991. Evidence was also given that the applicant was charged with the offences discussed above on 29 January 1996. But according to what was said on his behalf below, he was paroled on 18 June 1990 and had been on parole, at the time of trial, for about 6 years. Adding that period of 6 years to the release date mentioned earlier his ultimate release date would, as it seems to me, be December 2001. Unless there has been some misapprehension on my part, the conclusion I draw was that his Honour was misinformed in being told that the applicant would not be eligible for parole until the year 2002. The total of 6 years imprisonment beginning on 26 July 1996 (the date of sentencing) would on the calculations I have made above conclude about 7 months from the date earlier mentioned, i.e. December 1995.

It is not as clear from the judge’s remarks on sentence as it perhaps should be whether his Honour’s intention was that the sentences which he described as cumulative were intended to be cumulative upon sentences already being served, or only cumulative inter se. In my opinion the latter view is correct and that accords with the understanding of counsel before us. It therefore becomes impossible, in my opinion, to interfere with the sentences. An additional period of about 7 months in the head sentence for these offences cannot possibly be thought to be manifestly excessive.

I should add, however, that considered in isolation the sentence of 4 years for the extortion attempt would seem to me rather high; the very vagueness and rambling nature of the tapes goes against anyone taking their contents very seriously and the evidence of the recipient of the tapes, Ms Sanders, was that she regarded it as "the same story as what has been going on for quite some time" and "nothing new". I have thought it right to draw attention to this in case it has a bearing on the view taken on any application for parole.

In my opinion the appeal and application for an extension of time for leave to appeal should both be dismissed.

REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 17 December 1996

The appellant was convicted in the District Court at Mackay on 26 July this year of extortion and wilful damage. He was sentenced to four years imprisonment on the first of these and two years on the second. Those sentences were ordered to be served cumulatively. He appeals against both convictions and seeks an extension of time within which to seek leave to appeal against his sentences.

The extortion count involved two tape cassettes recording the appellant's voice. The appellant sent these to Sunshine Television by post, together with a letter. The letter is dated 15 November 1995 and a journalist at the television station said that she received the cassettes and the letter on 20 November. In the first of these cassettes the appellant commenced:

"To this corrupt State of Queensland ...".

In the second he commenced:

"Hello solicitor Leigh Johnson."

It is in the first tape that the extortion demand and threat were said to have been made. It then continued, in the same sentence, "you only have a number of days to decide whether you sacrifice your employee to protect your corrupt justice system or whether you tell the whole; that the State of Queensland rigged a Supreme Court trial. They sentenced me to prison for a crime I did not commit. You the State of Queensland knowingly sentenced me to prison for a crime I did not commit." The tape then continued to address the State of Queensland, accusing it of things which the appellant said it had done. He then said: "In a number of days I would [?will] telephone friends around Australia and also a friend in London. If the people I telephone tell me the contents of this tape and what I have said on this tape and read me pages of the rigged transcript that I have left for a solicitor, you might have your employee back.".

It continued with the appellant then saying how he would ask for a New South Wales lawyer, Leigh Johnson, with whom he had never made contact, and saying: "You will give this tape and all the documents and the pages to solicitor Leigh Johnson." This all appeared to be addressed to "this corrupt State of Queensland".

After addressing some remarks to Leigh Johnson and making a number of other statements the appellant then appeared to address the Ombudsman and Justice Demack in turn. To the first he said:

"Now you scum of an ombudsman you will do some investigating and you have

three days from the times solicitor Johnson receives this tape."

He then stated a number of tasks which he allotted to the Ombudsman and said:

"You will then give all that to solicitor Leigh Johnson and that will be done in

three days."

He then proceeded:

"Now onto Justice Demack. You have three days to find the name of the police

officer that handcuffed me on 22nd December 1983."

He then appeared to allot two other tasks to Justice Demack and then said:

"You have three days to pass on this information to solicitor Leigh Johnson. If not I will remind you something you forgot to tell or you didn't bother to tell the jury. I will start to bash this employee around the head. After that I will kick him in the stomach. After that I will jump on his ribs. After that I will start kicking him in the balls. After that he will sign a statement that I have made up. After that if he complains he has been ill-treated I will break a branch from a tree and start to flog him around the head, the back, the backside and the back of his legs. After that I will jump on his feet and kick his ankles and if he commits suicide I will just write a letter to C. L. Johnson Ombudsman and that will be guaranteed no investigation."

The appellant thus appeared to give the State of Queensland "a number of days" within which to pass on the tapes and some other documents to Leigh Johnson; and to give each of the Ombudsman and Justice Demack three days within which to give certain information to Leigh Johnson. What is not entirely clear, however, is whether the threat to harm the employee was in default solely of this obligation sought to be imposed on Justice Demack or whether it was in default of any of the obligations imposed on any of the three. Nor is it entirely clear in the latter case whether, in making the threat, the appellant was once again addressing the State of Queensland on the assumption that it was responsible for the performance of the obligations sought to be imposed on the Ombudsman and Justice Demack, or simply stating that, unless all the obligations which he sought to impose were performed, these consequences would flow.

The indictment on the extortion count was in the following terms:

"That between the first day of November 1995 and the 28th day of January 1996 at Mackay in the State of Queensland you with intent to gain the performance of services namely the communication of information relating to your conviction for armed robbery caused Belinda Jane Sanders to receive a writing namely tape cassettes demanding without reasonable or probable cause the communication of information relating to your conviction for armed robbery and such demand contained a threat to injure an employee of the State of Queensland if the said demand was not complied with and you then knew the contents of the said writing."

The appellant's appeal against conviction for extortion is on two grounds both of which were, in effect, added by leave. The first is that the indictment failed to allege an essential element of the offence, namely the identity of the person from whom the performance of services was intended to be demanded, and was in fact demanded. The second is that the trial Judge erred in law in failing to allow evidence to be led in the accused's case from a consultant psychologist Mr. Acutt (as to the specific psychological deficits suffered by the accused and the consequential effects thereof on his thinking and verbal expression) to assist the jury to determine whether or not he had the requisite intent referred to in that count.

As to the first ground, s.415 of the Criminal Code, on which the indictment was based,

relevantly requires:

1.         an intent on the part of the accused to extort or gain the performance of services from any person;

2.         that the accused cause a person to receive a writing demanding without reasonable or probable cause the performance of services from any person; and

3.

that the writing contain threats of injury to a person if the demand is not complied The appellant submits that, in each of the first two requirements, the person from

whom the performance of the services is intended to be extorted or gained, and is demanded, must be identified. The appellant refers to form 247 of the forms contained in the Criminal Practice Rules. Of course the failure to comply with a form does not mean that the indictment is defective[1]. The question is whether it "sets forth the offence ... in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved, and as to the property (if any) in question, as may be necessary to inform the accused person of the nature of the charge"[2]; in other words, whether it identifies the essential factual ingredients of the offence[3].

[1]             Although compliance with it would be sufficient: Criminal Code s.707.

[2]           Criminal Code s.564(1).

[3]           John L. Pty. Limited v. Attorney-General (NSW) (1987) 163 C.L.R. 508 at 519-521; R.

It can be seen from the above analysis of the tape that the identity of the person or persons in default of whose performance of services injury was threatened is by no means clear. It may be the State of Queensland (if that is a person), it may be Justice Demack or it may be the State of Queensland, the Ombudsman and Justice Demack. Indeed the uncertainty is highlighted by the contention for the respondent before this Court that it was none of these but rather any person at Sunshine Television. There is a corresponding difficulty in identifying the services.

There is an additional difficulty in identifying the services, in default of performance of which injury was threatened. They are described in the indictment as the communication of information relating to the appellant's conviction for armed robbery. But to describe them in that way conceals a difficulty in identifying the information required to be communicated, which arises from the confused and confusing way in which the appellant spoke on the tape. It is true that the identification in this way of the services to be performed might ordinarily be sufficient, the more precise identification of the information being a matter for particulars. But here there is a real question as to whether that information could ever be identified. This was not the subject of argument before this Court. Indeed the appellant conceded that the description of the services required to be performed was adequate. However this difficulty may affect the consequences of failing to identify the person in default of whose performance of services injury was threatened.

In my view the indictment was defective. The identity of the person from whom the performance of the services was intended to be demanded and was in fact demanded was an essential factual ingredient of the offence. Without that identification neither the appellant nor the Court would have known what the offence was which was alleged against him; in particular whether the threat of injury alleged was in default of performance of services by Justice Demack or by any of Justice Demack, the State of Queensland and the Ombudsman. Irrespective of the merits, that may be sufficient to cause a conviction based upon a defective indictment to be quashed[4]. In any event, in the present case different consequences might have flowed depending on whether the prosecution chose Justice Demack or the State of Queensland the Ombudsman and Justice Demack. It is possible, for example, that some of the jury may have convicted the appellant on the basis that it was only in default of the giving of information by Justice Demack to Leigh Johnson that injury was threatened; but they may not have convicted if they had thought that the relevant obligations had included those sought to be imposed on the State of Queensland and the Ombudsman. One reason for this may be that, whilst they may have been satisfied as to the identity of the information which Justice Demack was required to give to Leigh Johnson, they may not have been satisfied, had they directed their minds to it, with respect to the identity of the information required to be given by the State of Queensland or the Ombudsman.

[4]             Cf. Johnson v. Miller (1937) 59 C.L.R. 467 at 497-8.

It is true that the sufficiency of the indictment was not raised below. Indeed the only issue which appears to have been contested at trial was whether the employee referred to, whom the appellant threatened to harm, was the appellant himself or someone else. But that cannot affect the question whether, in the circumstances referred to, the conviction should be quashed. Moreover the possibility referred to in the preceding paragraph makes it impossible, in my view, to say that the indictment could now be amended (assuming that this Court had power to permit that course) in a way which would accord with the jury's verdict. It is therefore unnecessary to decide whether this Court has that power[5].

[5]             See however R. v. Lewis [1994] 1 Qd.R. 613 at 624.

It may be possible to formulate an indictment which would identify with sufficient certainty both the services required to be performed and the person required to perform them. Whether that would describe an offence which could be proved is a matter on which it is unnecessary to speculate. It follows in my view that the appeal should be allowed on this ground and the conviction for extortion set aside. Whether the appellant should be reindicted for that offence should be left to the Director of Public Prosecutions. It is unnecessary in these circumstances to consider the second ground of appeal.

The appeal against conviction for wilful damage was also on a ground which was added by leave; that there was no proof that the act which caused injury to the property of the Director -General, Department of Justice and Attorney-General, was caused without his consent. The damage consisted of the destruction of a glass window and wooden door of a courthouse at Mackay. They were destroyed by the discharge by the appellant of a shotgun into the door and window.

Merely to state the ground highlights its absurdity. It is true that absence of consent is an element of the offence[6]. However that absence of consent may be inferred and the only proper inference which could have been drawn in this case was that the Director-General did not consent to the door and window of the courthouse being destroyed by a shotgun blast. The appeal against this conviction must therefore fail.

[6]           R. v. McClymont; ex parte Attorney-General [1987] 2 Qd.R. 442.

The appellant sought an extension of time within which to appeal against both sentences which were imposed on him, one of four years imprisonment in respect of the extortion conviction and one of two years imprisonment, the maximum term, for the offence of wilful damage. Although this appeal would no doubt have been in substance against the total term of imprisonment, which was one of six years because the sentence for wilful damage was made cumulative on that imposed for extortion, it remains necessary to consider the application to the extent that it involves a two year term of imprisonment for the wilful damage offence.

This was a very serious example of this offence. Discharging a shotgun in a public place like this involved a serious risk of death or serious injury to innocent people. It is fortunate that this did not occur. The learned trial Judge said that it was hard to imagine a worst case of this kind of offence. Moreover there were no redeeming features. The appellant has a quite long criminal record, was at the time of commission of these offences undergoing a sentence of eight years imprisonment for armed robbery and showed no remorse for his conduct. Moreover this sentence will result in no greater period of imprisonment than that which he is already obliged to serve in respect of the armed robbery. For all of these reasons the application for an extension of time within which to seek leave to appeal against sentence must be refused.

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 17 December 1996

I have had the opportunity of reading the reasons for judgment of Davies JA which deal with the facts canvassed upon this appeal.

In dealing with the principal point argued on behalf of the appellant - the sufficiency of particularity in the indictment - it is convenient to set forth the relevant part of s.415 of the Criminal Code, the breach of which the Crown relied upon in the indictment presented against the appellant. With reference to the facts canvassed upon trial, the relevant part of s.415 of the Code provides:

"415(1) Any person who with intent to gain ... the performance of services from any person

-

(a)knowing the contents of the writing causes a person to receive a writing

demanding without reasonable or probable cause -

(i)... the performance of services from any person; or

(ii)that anything be done or omitted to be done or be procured by any

person;

and containing threats of injury or detriment of any kind to be caused to that person or any other person ... by the offender or any other person if the demand is not complied with ...

is guilty of a crime ...".

No particulars of any matter contained in the count were sought either prior to arraignment

The Crown case was that a cassette tape containing threats made by the applicant was sent by
post under cover of a letter to a television station. It was not addressed to any particular person by
name and when received at the television station in an envelope was processed by staff and
eventually handed to Belinda Jane Sanders, a journalist employed at the station, the person specified
in the indictment as the one the appellant "caused to receive" the offending cassette tape.
The cassette tape in issue on the trial was one only of a number sent to the television station
at about this time. It and others had been sent under cover of letters in fact signed by the appellant.
The letters seem to have been addressed to anybody at the station who might read them because they
commenced "Hello Sunshine Television".
It was open to the jury to infer that the appellant had previously sought publicity from the
Sunshine Television Station and, no doubt for reasons of convenience, the journalist Belinda Jane
Sanders employed at that station had been given the task of dealing with material which the
appellant sent to it.

Section 415(6) provides:

(6) In this section - 'writing' includes any ... tape or other thing by which words or sounds are capable of being reproduced."

Count 1 of the indictment presented against the appellant and upon which he was convicted

reads:
"That between the first day of November 1995 and the 28th day of January 1996 at Mackay

in the State of Queensland, you with intent to gain the performance of services, namely the communication of information relating to your conviction for armed robbery, caused Belinda Jane Sanders to receive a writing namely cassette tapes demanding without reasonable or probable cause the communication of information relating to your conviction for armed robbery and such demand contained a threat to injure an employee of the State of Queensland if the said demand was not complied with and you then knew the contents of the said writing."

before the jury or subsequently prior to conviction. issue upon the trial she made contact with police officers and this led to investigation of the whole matter and the laying of the charge in count 1 against the appellant. It is clear that the appellant made no effort to hide the fact that he was the author of the material contained on the tape.

It is unnecessary to set forth the appellant's rambling narration of events and his complaints

In my view, however, it was clearly open to the jury to find that the narration recorded upon
the tape contained threats to cause serious injury to a person described as an "employee" of the State
of Queensland should certain persons named in the recording not make certain specified inquiries
and communicate the outcome of them. One of the persons named was Justice Demack who had
conducted a trial of the appellant for a robbery offence upon which he was convicted in 1984.
Another person named was Mr Johnson an Ombudsman. In his reasons for judgment Davies JA has
sufficiently analysed the appellant's demands for services to be performed by those two named
people and also by the State of Queensland.
In my view it was open to the jury to infer upon the whole of the evidence that the appellant
sent the tape demanding that at least two clearly identifiable persons named in it perform the services
he listed in the tape and expressly threatened to do injury to "an employee of the State of
Queensland" if that demand was not complied with.
It was open to the jury to find that in sending that tape to the Sunshine Television Station, the
appellant intended that some person there connected with making public on television some matters
brought to its attention, would listen to that tape. Evidence was placed before the jury to support the
inference that he expected or at least hoped that the television station would publish the information
recorded on the tapes.
It was also in my view open to the jury to infer that the appellant intended that the named
judge and the named ombudsman should in one way or another have their attention directed to the
content of the tape - at least that part which required each to do the things specified in the tape within
the specified time to avoid the unnamed employee of the State of Queensland from being
intentionally injured by the appellant.

about them recorded on the cassette tape. emerged sufficient to cause the jury to have any hesitation in drawing these inferences. Indeed the appellant seems to have devoted his attention to supporting a defence under s.415(2) of the Code which provides that a person is not criminally responsible for an act referred to in subs.(1) if the injury or detriment is threatened to himself only. When one looks at the threats to injure the employee contained in the words recorded on the tape it is unsurprising that the jury entertained no doubt that a defence under s.415(2) of the Code was not open to the appellant.

To deal seriatim with the elements of the offence under s.415(1) of which the appellant was

convicted, there was in my view an abundance of evidence to support the following findings:
(1)The appellant knew the content of the tape - which he had made himself.
(2)He caused Belinda Jane Sanders to receive that tape.
(3)The words recorded on the tape demanded the performance of services from a Judge and an

Ombudsman clearly identified by name and also from "The State of Queensland".

(4)The words recorded on the tape threatened physical injury to a person described as "an employee" of the State of Queensland by the appellant if his demand for the performance of the specified services was not complied with.

In my view there was overwhelming evidence placed before the jury to support its conviction

On my reading of s.415(1) it was not necessary for the Crown to prove anything more than
that the appellant forwarded to Sunshine Television Station the tape containing the demands and
threat intending that it be listened to and in circumstances in which it would be received and listened
to in the ordinary course of events by somebody at that station, to establish that he "caused" Belinda
Jane Sanders "to receive" that cassette tape.
In my view it was not necessary for the Crown to show that the demand for the performance
of services was to be made of the person receiving the cassette tape. It was sufficient that the
demand recorded on the cassette tape was received by Belinda Jane Sanders and that it was for the
performance of services from "any other" persons - including the two persons specified in the
message recorded on the tape.
It was unnecessary for the Crown to show that the threat of personal injury contained in the
message recorded on the tape was injury to a person readily identifiable from the content of the
message. It was sufficient if the tape recorded a message threatening personal injury to "any other
person".
The only question therefore which needs consideration is the form of the indictment. It was
contended that on its face the indictment for the count 1 under s.415(1) of the Criminal Code lacked
sufficient particularity to be a valid indictment.
I agree with the conclusion reached by Pincus JA that the form of the indictment in the
present case does meet the requirements of s.564 of the Criminal Code. Indeed it was not contended
that there was a failure on the part of the prosecution to meet the requirements of s.564(1) of the
Code. The real complaint is that on its face the indictment failed to allege an essential element of the
offence being "the identity of the person from whom the performance of services was intended to be
demanded and was in fact demanded".
In essence it is argued that the indictment on its face was bad because the "persons" from
whom the performance of the services was required were not named when in fact in the words
recorded on the tape it was clear that the "persons" named included the specified Judge and
Ombudsman. The contention is that the indictment on its face was invalid because after the words
"communication of information" the words "by the named Judge and the named Ombudsman" were
omitted before it continued "relating to your conviction of ..."and the inclusion of those words was
essential to its validity.

of the appellant of an offence under s.415(1) of the Code. certain persons" were inserted, it could not conceivably have been contended that the count failed to sufficiently state the elements of the offence. It would certainly have been open to the appellant to obtain particulars of those persons and undoubtedly had that demand been made the particulars could have been provided without any difficulty. Indeed, when one looks at the content of the message recorded on the cassette tape, it becomes abundantly clear that the communication was required of the two persons specified by name in the tape.

In my view an allegation of demanded communication of information involves at least an allegation that communication of that information must be made by a person or persons.

It is clear from examination of the evidence given, the content of the summing up and the way the trial was conducted that it was assumed by all concerned that "the communication of information" was required of the judge and the ombudsman named in the tape. In cross-examination the appellant agreed that this was so.

It seems never to have crossed the mind of anybody involved in the conduct of the trial that there was any question or doubt as to the nature of the services demanded or the persons required to provide them. In the course of his evidence the appellant made it quite clear that he was giving Mr Johnson, the Ombudsman and Mr Justice Demack three days to do the things required of them as specified in the tape. He said that when he sent the tape to the television station he expected that somebody would listen to it. Although the appellant did not agree that he had made demands that those two people make the inquiries and do the things specified in the tape, he did agree that he had made "requests" that they do those things.

The appellant agreed that after sending the cassette tape to the television station he made a

telephone call to a police officer and said:
"I've sent a package to Sunshine Television and if you want your employee back, play the

two video tapes and read the letter."

On my examination of the record it was never the Crown case that the cassette tape in issue amounted to a demand made upon Belinda Jane Sanders or anybody else for that matter in the Sunshine Television Station to publish the contents of the tape. Although upon appeal it was contended for the Crown that such an inference could be drawn from the content of the tape, in my view it is unnecessary to embark upon an examination of that argument because from the record of proceedings at the trial it appears never to have been advanced before the jury.

The summing up does not specifically deal with the identity of the persons required to provide the services demanded by the appellant in the recorded message. The only reference made to the matter which seems not to have been really raised or debated at all in the course of the trial is to be found in the summing up in these terms:

"You must please look with me at your count 1. You see there that the allegation is that between the first day of November 1995 and the 28th day of January 196 at Mackay in the State of Queensland, the accused with the intent to gain the performance of services and those services alleged are then particularised in the following words namely the communication of information relating to his conviction for armed robbery. There you have got the first real major element you see. With intent to gain the performance of services namely the communication of information relating to his conviction for armed robbery ... and then we have the concept of demanding. There is not any argument now that we have heard the evidence and heard counsel. There is no argument about a demand in that exhibit 2 first tape. It is conceded that there are several demands in there and indeed there is no argument that if you find there were demands and accompanied by threats in the same writing then there would be no reasonable or probable cause for such a demand and threat. That is not in issue here. But nevertheless you must understand what the elements are you see, demanding without reasonable or probable cause the communication of information relating to his conviction for armed robbery. And then going on and such demand contained a threat to injure an employee of the State of Queensland." [emphasis added]

There was no application at the conclusion of the summing up for any redirection. I have referred to some of the evidence on this aspect of the case against the appellant on count 1 and to the observations of the learned trial judge in the summing up only for the purpose of considering whether the lack of particularity in count 1 appearing on its face so failed to specify an essential element of the offence charged as to render it invalid. If as drafted it so lacked particularity as to justify merely an order for provision of particulars, but no such order was sought and their absence appears not to have impeded the presentation of either the Crown or defence case it is difficult for the appellant to raise that matter at this stage. In essence the complaint is that the count did not sufficiently particularise the meaning of the words for which the Crown contended, recorded on the tape. To the extent that the meaning of the words on the tape with reference to persons required to perform the demanded services could be the subject of evidence, the appellant gave evidence that that they meant what the Crown asserted they meant in the ordinary use of language. It is clear that had an application for particulars been made they could readily have been provided. Cross- examination of the appellant was conducted on the basis that the services required in the recorded message were those of Mr Justice Demack and Mr Johnson the Ombudsman. No objection was taken to this cross-examination and indeed the appellant agreed that this was so. Had particulars ever been sought as to the person or persons from whom the services were required, it seems clear that the names of Mr Justice Demack and Mr Johnson the Ombudsman would have been provided because that was obviously the way in which the case was conducted and on my reading of the record the way in which counsel for the appellant expected it would be conducted. As I have indicated the real defence raised by the appellant was that "the employee of the State of Queensland" whom he threatened to injure was himself. Not surprisingly having regard to the explanation he gave in evidence in this regard, this defence was rejected by the jury.

The arguments advanced on behalf of the appellant in this case are not dissimilar from some cnsidered in R v. Lewis [1994] 1 Qd R 613. I refer to the discussion of them by Macrossan CJ at p. 623 ll. 28-33 and pp. 623- 625 generally.

I agree with the conclusion which Pincus JA has reached that the failure to identify the persons whose communication services were required by the appellant did not result in any incurable deficiency in the indictment which could not be made good by the provision of particulars sufficient to identify those persons had such particulars been sought. In my view one may deduce from the clear content of the message recorded on the tape that the appellant could have had no doubt whatever as to the identity of the persons by whom it was alleged he demanded or "requested" performance of the services sought in that recorded message.

In my view there is no substance in the other matters argued on behalf of the appellant upon appeal or upon his application for leave to appeal against sentence.

I would dismiss the appeal and the application for an extension of time for leave to appeal

against sentence.

v. McGoldrick [1995] 1 Qd.R 553. That it is sufficient to describe the offence in the words of the Code (s.564(2)) does not mean that those ingredients, in this case the person in default of whose performance of services injury was threatened, need not be identified.