Baini v The Queen [2011] VSCA 298

Baini v The Queen [2011] VSCA 298 - VSCA 2011 case summary — Zoe

[27]

In late 2003 and early 2004, the victim of this offending, Hassan Rifat, found himself being subjected to threats and violence at the hands of a business competitor, one Tony Hakim. According to Rifat, the level of violence directed towards him and his family was both significant and escalating. He claimed that, on one occasion, he was menaced by one of Hakim's operatives with a pistol.

A mutual friend of both Baini and the applicant, Mustafa Unver, suggested to Rifat that he could introduce him to someone who would protect him from Hakim. At that time, Rifat was especially vulnerable as he had gone to the police in early 2004 to seek their assistance, and had been told that the police would do nothing.

... what then happened [was this]. Baini travelled to Sydney on a number of occasions throughout 2004 in an effort to persuade Hakim to leave Rifat alone. At that time, Rifat owned and operated a business called Telkom, which was described as a 'second-tier telecommunications business', and was said to have been a highly successful enterprise.

According to Rifat, Baini told him that Hakim had offered him (Baini) $1,000 a month to take Hakim's side in the dispute between Hakim and Rifat. Baini told Rifat that, unless he met certain demands, Baini would join forces with Hakim. Rifat said that this led to his having provided Baini with a leased Mercedes Benz motor vehicle (count 1). That was a count upon which Baini was charged alone, and acquitted.

Rifat said that, thereafter, Baini made regular threats to harm Rifat's family and/or business. He also threatened to kill Rifat's horses unless his demands for money were met. As a consequence, Rifat sent money to Baini on some 35 separate occasions between 4 April 2005 and 15 March 2007. He also sent money to [Arafan](either directly or through Baini) on some 13 occasions between 4 April 2005 and 24 November 2005.

[Arafan] received a total of about $10,000 in relation to the counts upon which he was convicted. Baini, on the other hand, received $143,581 in respect of the offences for which he was convicted.

By the time the jury came to deliberate, the Crown case was essentially that [Arafan] and Baini had entered into what was described as a 'joint criminal enterprise' to blackmail Rifat. Each count reflected a separate demand, followed by a separate payment. Of particular importance, so far as the appeal [by Arafan] to this Court was concerned, was the fact that [Arafan] was not said to have personally made any threat, or issued any demand, to Rifat. Every such threat or demand was made by Baini, and always without [Arafan] having been present.

It was Baini's contention, in his record of interview, that the relationship between himself and Rifat was of an entirely legitimate nature, whereby he (Baini) would render services by dissuading Hakim from further attempts at harm to Rifat. Baini also contended that he had, on two separate occasions, brought valuable business (worth some $35,000 and $18,000) to Telkom. The Crown case, based on Rifat's evidence, was that the payments he (Rifat) made were the product of extortion, those payments having been made solely in response to Baini's threats.

[125]

99 Second, it is the case that, in response to objection by counsel for Arafan, the prosecutor attempted to elicit from Rifat evidence of a particular unwarranted demand with menaces in respect of each payment made. Unsurprisingly, Rifat's evidence did not address every demand, and he was unable, except in a limited number of instances, to recall any 'menacing pressures'[57] specific to a particular demand. Had he asserted a recollection any greater than he did, in the absence of a contemporaneous written note it would have been unbelievable. But what he made very clear, in my opinion, was that a menacing pressure was operative in respect of each demand made upon him. If that was not the direct import of his evidence, it was certainly an inference which the jury could have drawn - and I draw - adverse to the applicant to the criminal state of satisfaction. So, for instance, Rifat said that (1) he would not have paid any money without a threat being made; (2) the reason for making certain payments was that he was worried for [his and others] safety, that it was the lesser of two evils; (3) if he did not sign the deed of partnership 'he would destroy my business, he'd destroy me, bury me 20 feet under, hurt my family and kill my horses'; (4) there were 'the constant threats all the time'; (5) 'I felt like a hostage, I had no choice but to do what I had to do'; (6) the applicant 'wanted his money, continual calls, harassment, made to feel unsafe ... it was just like being in a nightmare, just a hostage that never ended'; (7) he was 'worried for the safety of [his] staff, [himself], [his] family'; (8) a particular payment was made for 'same reason as the past. You know, worried about your safety, making sure we keep them at bay'; and (9), that every payment was made 'under duress'. It was in that context that Rifat used phrases such as 'same as the other ones', 'same reasons', 'same as previous' when describing his reason for making a particular payment, which on his evidence implied a correlative demand. Those phrases bespoke a pervasive and continuing menace, which attached to each demand.

[128]

102 It is true that evidence might have been called by the Crown which was not - most particularly, a ledger which Rifat said was kept concerning payments to the applicant. Again, it might have been possible to produce evidence of the phone calls which Rifat said the applicant made to him when demanding money. It is also true that there was some evidence that the applicant provided services to Rifat's business. It is further true that Rifat did not complain until he was sued by the applicant on the terms of settlement, and that his initial complaint made no reference to the terms of settlement. These matters were such as might be advanced in final address. But in my view the jury was in entitled to conclude, as I do, that the Crown case was overwhelming. The following are some of the matters supporting that conclusion: (1) Rifat's evidence went as far as it sensibly could. For that reason, it had credibility; (2) Rifat gave evidence of the applicant's threat to change sides. The applicant said in his record of interview that Hakim had made him offers. He denied a threat to change sides. Rifat learned of Hakim's offer. It must have been from the applicant. An inference was surely available that Rifat learned of the offer from the applicant in the context of a threat to change sides; (3) It is grossly improbable that Rifat would willingly have transferred a major interest in Telkom to two people, one of whom he scarcely knew, and neither of whom knew anything about the telecommunications industry; (4) The terms of settlement gave a disproportionate benefit to the applicant for any work that he might have done, and for his supposed interest in Telkom, and it gave a benefit to Arafan, who had done no work for Telkom, and whose supposed interest in Telkom had even less sensible explanation; (5) Rifat continued to make payments to the applicant even after the terms of settlement had been signed; (6) Rifat's belated complaint was consistent with his account that he had earlier been given no help by the police in the face of Hakim's alleged threats. Rifat might well have viewed the proceeding instituted by the applicant, as Nettle JA suggested in argument, as 'the last straw'.

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