Benasic, A. F. v. The Queen [1987] FCA 743

R. v. Clear £1968] 1 0.B. 670 Connolly v. Willis (1984) 1N.S.W.L.R. 373 Lafitte v. Samuels C19723 S.A.S.R. 1

ANTON FRANCIS BENASIC v. THE QUEEN HARRY MALAVETAS v. THE QUEEN

IN_THE FERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY

ON APPEAL from the Supreme Court of the Australian Capital Territory

JUDGES MAKING ORDER: FOX. KELLY AND PINCUS JJ. DATE OF ORDER: 22 December 1987 WHERE MADE: Canberra.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY

ON APPEAL from the Supreme Court of the Australian Capital Territory

FOX J. 1 agree with Pincus J. and Kelly J. that these appeals should be dismissed. I add to what they have said some

During examination-in-chief, prosecuting counsel asked

Mr Farmer (the person threatened) "As a result of what the person Benasic had said to you over the telephone in relation to you and your family what did you feel?" He answered "I was shaking more than I am now. I was very frightened". Defence counsel objected generally to evidence of Mr Farmer's state of mind. His Honour was of the view that that evidence was relevant. It is I think evidence of a kind which is not uncommonly led, in relation to the present and other charges even where the mind of the threatened person is not in issue, but no authority was cited to the learned judge or this Court, and, except as I shall mention there seems to be no authority, at least of any specific nature,

which is directly in point. Wigmore on Evidence discusses

similar problems under the headings of opinion evidence (Vol.VII, Chadbourn Revision (1978), paras. 1962-1964, 1969) and of res gestae, (Vol.VI, Chadbourn Revision (1976), paras. 1714, 1725,

In some cases, the affect on the addressee, or a third party, is a matter in issue, and has to be proved, but that is not the case here. The test is an objective one, addressed to the purpose of the accused, and the effect of his conduct on a hypothetical "ordinary person of normal stability and courage" (R. v. Clear (19681 1 Q.B. 670 at 679 per Sellers L.J.). In

Connolly v. Willis (1984) 1N.S.W.L.R. 373, the prosecution was

under section 5 of the Offences in Public Places Act 1979:

"s.5. A person shall not behave in such a manner as would be likely to cause reasonable persons justifiably in all the circumstances to be seriously alarmed or seriously affronted."

Wood J. said (at p.384) after quoting a passage from the judgment

of Zelling J. in Lafitte v. Samuels (£19723 S.A.S.R. 1 at 19):

relation to the Offences in Public Places Act, S.5.

relevant and admissible, it is not strictly essential to

the prosecution because of the objective test posed, although a conviction may be difficult to secure in its absence. It follows that the evidence of Detective

A starting point in considering the question, is to have strict regard to the necessary ingredients of the case, and to bear in mind that if evidence such as that in question is admissible it still cannot, by itself, establish any ingredient. For Mr Farmer to say that as a result of what was said, he was fearful, does not prove the objective requirement to which I have referred. In this connection, it is not in the least necessary that the addressee, or any one, be fearful. A person may take

The evidence was admissible, in my view. on three grounds. In the first place, the reaction is a part of the event, which in a case such as the present, is inseparable from the threatening words and the conclusion of the conversation. It may in this way be regarded as part of the res gestae. In the second place, as going to mens rea and to effect, it tends to show that the threat was serious, and not simply an excusable

Finally, the reaction of the addressee, although by no means conclusive, offers some assistance to the fact-finding

tribunal in coming to a conclusion on the objective test, which I

have referred to in the words of Sellers L.J. in Clear's case, Having said what I have, I am mindful of the fact that the trial judge should be careful in the way the evidence is used. and that, in his discretion, he can reject it. In the present case

no basis exists for interfering with his discretion to admit it.

A challenge to the sentence imposed was made on the basis that his Honour heard and took into account evidence of what was done and said by the accused on the two days prior to the day upon which the offence charged was committed - Mr Benasic on two days and Mr Malavetos on one day. On these occasions

there was conduct similar to that which constituted the subject

of the charge, and which could possibly have amounted to offences

This evidence was tendered by the prosecution but was not admitted before the jury because of its excessively prejudicial nature, although his Honour regarded it as relevant to the trial. It was admitted before his Honour as relevant to sentence. It would of course have been wrong for his Honour to have sentenced on the footing that the earlier events constituted crimes, or conduct for which the accused should then be punished. His Honour clearly did not proceed in this way. He emphasised that he could only sentence for the crimes of which the accused

had been convicted in the trial before him. There is not here

The relevance of the evidence for the trial. in his

Honour's view, was im the light 1t shed on the nature of the

subject offences. They did not, for example, (I use my ow words) arise in some casual unplanned or impulsive way, and so far as Mr Benasic was concerned the extent of his dependence on drugs, and the cost thereof, was disclosed. The words used by his Honour in relation to admissibility at the trial, had the evidence been admitted, was that the evidence was "explanatory of the purpose for which the offenders were present..." This is an

I am unable to detect any error in the way his Honour

treated the material mentioned, for the purpose of sentencing.

In this case, counsel adopted, for the most part, what was argued on behalf of Benasic. I do not wish to make any further remarks concerning this appeal additional to those I have

There is a relevant footnote to the whole case. The amount sought by the blackmail threat was required for the purchase of drugs. Evidence to this effect emerged from material before the Judge but was excluded from the jury. At the sentencing proceedings Benasic said that he sought money from Mr Farmer in order to buy heroin. The crime was apparently one of the considerable number which are now being committed daily in order to purchase drugs, that is to say, heroin, cocaine, marijuana, and their derivatives, and other opiate or narcotic drugs. I understand that a large percentage of serious crimes,

particularly those concerning property (but often with some

violence involved), are druq-related, in the sense that they probably would not have occurred without the pressure to obtain drugs, or pay for them. The evidence shows that many girls, young women and men, not otherwise so inclined, go into prostitution in order to get the necessary money. In any event, the users pay heavily. The evidence in a case last year froma well-informed witness was that to maintain a full heroin habit (which mav subsist for vears) could then cost about $300 per day. The related aspect of this situation is that a few people are makina great sums of money, of the order of tens of millions of dollars each, annually, for introducing and distributing and selling or arranqing the sale of the drugs in Australia. It would strain belief bevond all human experience if some of the profits were not applied to secure the maintenance of the trade, by corrupt influence exerted on relevant people, no matter their elevated position in the community. Mafia-style power with all its violence and threats of violence becomes an accompaniment. Those benefiting can be expected to oppose vigorously any suggested change in the law or its administration which might reduce their income, and to that end may well work through

various channels, some innocent. to influence public opinion.

The matter has been the subiect of a larae bodv of literature, a small part of which I have read recently for the purpose of these comments. T have also read what has been said on the subiect by Dobinson and Ward in a manuscript for the chapter of a book soon te be published (Chapter six, Hoqq and Findlay (eds), Understanding Crime and Criminal Justice (1988)).

There the complex aspects of the situation, and of suitable

remedial measures, are discussed fully. This work has the

advantage of putting the situation in historical perspective.

The present case came before the Court in Canberra and it is therefore of interest to note the active attention the Canberra Times has been giving the matter, and the proposals for reform it has been outlining (see for example the editorials for the issues of September 20 1986, December 7 1987, September 18 1987, November 2 1987). The situation seems to call for urgent, but thoughtful, attention to be given to ways of taking profit out of the equation, or at least greatly reducing it. The principal object would be to lessen crime and corruption, although hopefully the welfare of users could at the same time be enhanced. Existing laws appear not to be succesful in either direction. They have contributed to the enormous black market, which continues to expand despite the best endeavours of the authorities. Some laws such as prohibitions against use by an individual, or possession by him or her for use are virtually unenforceable, and it may be that little attempt is made to enforce them against individuals not involved in drug sale and

I certify that this and the six (6) preceding pages are a true copy of the Reasons for Judgment herein of his Honour

) US' AN_CAPITAL RITORY ) ACT G42 of 1987 ISTRICT REGISTRY ) ACT G43 of 1987 GENERAL DIVISION ) IN P. FROM THE SUPREME COURT OF THE US IAN CAPITAL TERRITORY BETWEEN : ANTON FRANCIS BENASIC Appellant AND: THE QUEEN Respondent AND: HARRY MALAVETAS Appellant AND: THE QUEEN Respondent

CORAM: FOX, KELLY & PINCUS JJ. DATE: 22 December 1987

These are two appeals against conviction and sentence. The appellants were convicted after a joint trial on an indictment charging blackmail or, more precisely, that they "verbally made an unwarranted demand of money from Richard Lindsay Farmer with

appeal by the appellant Benasic (the first appellant) was' that

first heard. It was argued on his behalf that the learned trial judge wrongly admitted and left to the jury evidence of Farmer's

state of mind. The case for the prosecution was that the first appellant, supported by the second, threatened to do violence to Farmer and his family and to expose some alleged past indiscretions on Farmer's part unless he cashed a cheque for a sum of $600. Farmer gave evidence that these threats made him fearful, but it was argued before the learned trial judge and before this Court that the alleged victim's state of mind has nothing to do with proof of the offence charged and that the evidence should have been excluded. Counsel for the first appellant contended that ona charge of unwarranted demand with menaces it is generally unnecessary to show more, as to the demand's effect, than that the "mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand ..." (Req. v. Clear (19683 1 Q.B. 670 at 679 per Sellers L.J.) It does not follow, however, that the proved reaction of the alleged victim must be excluded from the jury's consideration. If it is shown, for example, that he acted in a serene and carefree way at the end of the incident complained of, that might assist a jury towards a conclusion as to what the accused had done and with what intention. Similarly, if it were proved that the alleged victim

manifested signs of fear in response to statements made by the accused, evidence as to the menacing character of the approach made could be more readily accepted. It was not suggested by counsel that there is any distinction to be drawn, as to relevance, between evidence of physical manifestations of fright

on the one hand, and the victim's evidence of his own state of

mind on the other; nor do we think such a distinction may validly be drawn. It seems clear enough that evidence of the character just mentioned would or might help the case for or against the accused, and there is nothing in the authorities to suggest that it must be excluded. We think that the evidence challenged here

The first appellant also appealed against sentence, but not on the ground that the sentence was necessarily excessive having regard to the circumstances before the learned trial judge; it was complained on his behalf that his Honour wrongly admitted evidence, as relevant to sentence, of misbehaviour on other

It is, of course, permissible, and indeed obligatory, for a sentencing judge to have regard to the circumstances in

which the offence proved has been committed. It may sometimes be

difficult to carry out that duty without infringing the principle that the accused is not to be punished for offences of which he has not been convicted. In the present case, however, there seems little doubt that the circumstances the subject of the appellant's complaint were properly taken into account. What the Crown proved was that in the two days preceding the commission of the offence three approaches were made to Farmer. The first was by the first appellant, who called at Farmer's shop and demanded $450 for a stated purpose. The second was by the first appellant and his wife, who made a further request for money and handed a piece of cannabis, unsolicitedly, to Farmer. The third was by both

appellants who came to Farmer's house on the evening before the

offence was committed to try to cash a cheque for $600 and then

These facts were regarded by the learned trial judge as relevant to sentence. His Honour had, on objection being taken,

excluded them from the evidence placed before the jury because of

The learned judge acknowledged the importance of the rule above referred to, that a convicted person must not be sentenced for offences other than that of which he is being convicted, but treated the previous encounters just referred to as material which he might properly consider on sentence. In our

opinion, his Honour was plainly correct in so acting. It follows

that the first appellant's appeal must be dismissed.

Counsel for the appellant Malavetas (the second appellant) supported the argument of counsel for the first appellant about evidence of Farmer's state of mind, rejected above. As to the conviction, he also advanced an argument to the effect that he had been led to conduct the second appellant's defence under a misapprehension about the nature of the Crown's

It appears that before the trial there was a discussion between counsel for the second appellant and counsel for the Crown

in which, on enquiry being made, the latter told the former that

his client was charged as a principal. Counsel for the second appellant informed us that he took that to mean a principal in the first degree and conducted his case on that basis. His complaint is that it became clear only at the conclusion of the evidence that in truth the Crown's case against the second appellant was that he was the principal in the second degree - i.e. an aider and

"that on 5 May 1986 at Canberra in the Australian Capital Territory HARRY MALAVETAS and ANTON FRANCIS BENASIC with a view to gain for the said ANTON FRANCIS BENASIC, verbally made an unwarranted demand of money from RICHARD LINDSAY FARMER with menaces."

It will be noted that the first count related to an unwarranted demand of money, not to several demands. During the conversation between counsel preceding the trial, it appears that counsel for the second appellant obtained the impression that the case against his client was, and was only, that he himself made a demand with menaces (being one separate and distinct from that

It appears clear, however, that the indictment is not susceptible of that construction, as it plainly alleges a single demand. Further, counsel for the second appellant engaged in

cross-examination directed to diminishing his client's role as a

supporter of the other accused. He suggested, for example, that

the second appellant was "just there lurking about the place" and

When the matter was raised by counsel with the learned trial judge, his Honour mentioned that he had understood throughout the case that the second appellant was charged as principal in the second degree; he particularly mentioned, as a basis of that understanding, the Crown opening. A perusal of the opening, however, discloses that counsel concentrated on summarising the facts to be proved and did not specifically say

whether the second appellant was charged as an aider and abettor.

In the result, when counsel for the second appellant raised this complaint with the trial judge, his Honour declined to

discharge the jury; counsel rejected suggestions that he apply for

an adjournment or ask for leave to cross-examine further.

It must be accepted, of course, that counsel for the second appellant did not appreciate until the conclusion of the evidence what was the precise legal character of the case against the second appellant. It appears that the misunderstanding, for such it apparently was, arose from use of the word "principal" without (according to the recollection of both counsel) any qualification, a choice of language which was unfortunate. Nevertheless, in view of the form of the indictment, counsel's

mode of conducting the case, the refusal of any adjournment or opportunity for further cross-examination, and the nature of the

issues, we remain unconvinced that the second appellant was

unjustly tried or lost a fair chance of acquittal on account of the misunderstanding between counsel. The appeal against

The second appellant also appealed against sentence, but

solely on the ground that there was insufficient disparity between the appellants' respective sentences. The first appellant was sentenced on the relevant count to a term of imprisonment of 2 and 1/2 years and a non-parole period of 15 months was fixed. The second appellant was sentenced to aterm of imprisonment for two years, with a non-parole period of 12 months. Counsel for the second appellant urged that, on any view of the matter, the second appellant's role was substantially less than that of the first appellant, a difference, he said, insufficiently recognised by the learned trial judge. As against that, his Honour took into account that the first appellant, but not the second, assisted the police in their enquiries and there was no evidence of any contrition on the part of the second appellant. These, it was

rightly conceded, were matters proper to be taken into account

We have come to the conclusion that this ground also fails and the appeal by the second appellant must therefore be

I certify that this and the six preceding pages are a true copy

of the reasons for judgment herein of their Honours Mr Justice Kelly and Mr Justice Pincus.