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[2003] NTMC 25
defendant. Charge of demanding with menaces under s 228 Criminal Code (NT) dismissed; both defendants discharged on 21 May 2003 by Stipendiary Magistrate Jenny Blokland (para 21).
Two people attended a GP seeking methadone. The GP refused, one defendant threatened 'I might smash the place up', the other briefly moved and jiggled an object the doctor thought might be a knife. The GP, feeling threatened, wrote prescriptions and later tried to cancel them. The court held the prosecution did not prove beyond reasonable doubt that a demand was made with menaces, nor that the defendants foresaw the necessary intimidating effect or were mutually aware in aiding one another. The charge was dismissed and both defendants discharged (paras 5-8, 12, 15, 20-21).
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On 17 December 2002 Zoey Bach and Joshua Mason attended the Night and Day surgery in Casuarina and consulted Dr Sujeewa Fernando (paras 3-4). They told the doctor they had a drug problem and had been advised by Royal Darwin Hospital to consult a GP about obtaining methadone (para 4). Dr Fernando did not ordinarily prescribe methadone and offered Panadeine Forte for reported rib pain (para 5). The defendants rejected that option. During the consultation Bach became upset, at times agitated and crying, and said words to the effect of "if you don't help me I might smash the place up" (para 6). Mason moved slightly closer to the door and jiggled an object which Dr Fernando briefly thought might be a knife; it was later conceded that the object was probably his key ring (para 6, 16). Feeling threatened, Dr Fernando wrote prescriptions for both of them; afterwards she contacted a pharmacy to have one cancelled (paras 6-8).
No linked legislation citations have been extracted yet.
Police charged both defendants with making a demand with menaces under s 228 Criminal Code (NT) (para 1). The prosecution advanced a joint-aiding case: there was no evidence of pre-concert, but it was argued that the defendants aided one another by words and conduct (para 12). After hearing evidence on 13-14 May 2003 the magistrate, Jenny Blokland SM, dismissed the charges and discharged both defendants on 21 May 2003 (para 21).
The court's decision turns on three linked legal propositions, and how the evidence measured up against them:
The statutory offence and definition of menace (para 1): s 228 criminalises making a demand with menaces with intent to obtain benefit. The Criminal Code's s 1 definition of "menace" is broad, including threats of injury, accusation or detriment of any kind (para 1; para 14 discussion).
The appropriate legal test for menace is objective (para 15): following authorities (R v Clear, Benasic, John Rae), the court applied the test whether the conduct was such that an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly. Although the victim's subjective reaction is admissible and helpful, it does not displace the objective standard (para 15).
The mental element under s 31 Criminal Code requires that the accused intended or foresaw the consequence as a possible result of their conduct (paras 11, 20). The magistrate relied upon Director of Public Prosecutions Reference No. 1 of 2002 for the correct approach to s 31 (para 11).
Applying these principles, the magistrate examined cumulative facts that favoured a finding of menace, Bach's threatening words, the presence of two persons, Mason's movement and perceived jiggling, the doctor's discomfort and decision to prescribe contrary to usual practice (paras 17, 6-7). She also placed weight on significant factors cutting against a finding of menace: there was no knife in the consulting room; initial intimidation may have been influenced by the doctor's experience with drug-dependent patients and uncertainty about what was occurring; Bach interposed crying and pleading with angry words; the defendants provided accurate contact details and acted on hospital advice, and there was no evidence of pre-concert to support a joint-authority theory (paras 16, 18-19, 12).
Crucially the magistrate found it unlikely that the defendants foresaw, as a possibility, that their conduct would cause the level of intimidation required by the objective test (para 20). Given those cumulative deficits the prosecution failed to prove beyond reasonable doubt that the demand was made with menaces with the requisite mental element, and the charges were dismissed (para 21).
Before this decision the legal landscape informing the court included:
This decision did not alter those legal rules. Rather, the magistrate applied them to the facts and reaffirmed the need to prove both the objective element of menace and the mental element under s 31. The notable emphasis in this decision is the careful cumulative balancing of factual indicators for and against menace, and the insistence that foresight of the relevant consequence as a possibility is a necessary element of criminal responsibility (paras 11, 20). The magistrate also endorsed the High Court's integrated approach to demand and menaces (para 13).
Paragraph 1 (statute): "Any person who makes any demand with menaces...", Plain English: If you make a demand while threatening someone (by words or actions) to get something or to harm someone if they do not comply, you commit a crime under s 228.
Paragraph 13 (quoting Austin): "It is the behaviour of the offender... which is the gist of the offence...", Plain English: The essence of the crime is what the offender does when making the demand; if the demand is communicated in circumstances likely to put pressure on the person, with the right intent, the offence is complete.
Paragraph 15: "it must be shown ... that the mind of an ordinary person of normal stability and courage might be influenced...", Plain English: The court asks whether a reasonable person might feel pressured enough by the conduct to give in; the victim's own feelings help but do not decide the question.
Paragraph 20: "it seems most unlikely that they foresaw that their actions would result in a level of intimidation...", Plain English: For a conviction, the accused must have at least realised it was possible their conduct would intimidate someone sufficiently; here the magistrate was not satisfied they had that foresight.
Paragraph 12: "each defendant must at least be aware of the purpose of the actions of the other...", Plain English: If there was no plan beforehand, you cannot convict someone just because someone else acted threateningly; you must show the accused knew what the other intended and did things to help.
This decision is most instructive in cases where:
In short, where intimidation is equivocal, the court will carefully dissect the factual matrix and require proof of both the objective menacing quality and that the accused foresaw the intimidating consequence as a possible result.
The judgment itself does not record any subsequent appellate treatment of this decision. The magistrate relied upon established authorities (Austin, R v Clear, Benasic, Tripodi and the NT Court of Criminal Appeal reference on s 31) and applied them to the facts of the case (paras 11-15). To determine how later courts have treated Police v Bach & Mason specifically would require searching subsequent reported decisions; that information is not contained within this judgment and cannot be inferred from it.
Several issues remain open or were not authoritatively resolved by this decision:
Scope of 'menace' in finely balanced fact situations: The court reiterated the objective test, but where conduct is a mixture of pleading and threat, further appellate clarification could refine how much weight to give interposed pleas or emotional distress in close cases (paras 17-19).
The evidential threshold for proving foresight under s 31 in extortion-type offences: The magistrate required foresight in general terms that the conduct might produce the intimidating effect (paras 11, 20). How courts will apply that requirement across different factual matrices (for example, where a defendant creates a threatening appearance deliberately versus where the appearance is inadvertent) may invite further clarification.
The admissibility/value of victim's subjective reaction: The magistrate treated the doctor's reaction as helpful but not conclusive (para 15). The boundary between helpful subjective evidence and the controlling objective standard could be the subject of future refinement.
Joint liability absent pre-concert: The decision follows Tripodi in requiring awareness that one is aiding another. The practical evidential standards for proving such awareness on cumulative behaviour rather than explicit agreement remain an area where higher courts may give more detailed guidance (para 12).
Role of subsequent remedial acts by the victim: The doctor then contacted the pharmacy to cancel the prescription (para 8). The extent to which such remedial acts confirm or do not confirm the presence of menace might be explored further in future cases.
These open questions arise because the magistrate's conclusions were fact-specific. They demonstrate the importance of rigorous factual analysis when dealing with alleged menaces, the objective test, and mens rea under s 31. Legal practitioners should note the careful parsing of supportive and detracting facts in para 16-19 and the requirement of foresight expressed in para 20 when assessing similar cases.
Introduction
1. The defendants are jointly charged that on 17 December 2002, with intent to obtain some benefit, [they] made a demand, namely a prescription for methadone, from Sujeewa Fernando, with menaces: Contrary to s 228 Criminal Code (NT). Section 228 reads as follows:
"228. Blackmail and extortion
(1) Any person who makes any demand with menaces with intent to obtain some benefit for himself or another or to cause some detriment or injury to another is guilty of a crime and is liable to imprisonment for 14 years.
(2) It is a defence to a charge of a crime defined by this section to prove that the making of such demand was reasonable by the standards of an ordinary person similarly circumstanced to the accused person.
Menace is defined in the Criminal Code, s 1 as:
"menace" includes a threat of an injury, accusation or detriment of any kind to be caused or to be made against any person either by the offender or by any other person if the demand is not complied with;"
2. Sujeewa Fernando is a medical practitioner employed at the Night and Day surgery, Casuarina. Her honesty as a witness is not in question. She made a number of concessions favourable to the defendants' case both in her evidence in chief and in cross-examination. This summary of her evidence incorporates both parts of her evidence.
3. Dr Fernando was working on the evening of December 17, 2002. She was due to finish work that evening at 9.00 pm. The other staff employed at the Night and Day surgery, save for Ms Crisp, (the receptionist), had gone home. Ms Crisp, (who gave evidence in the proceedings), did not notice anything unusual about the two defendants. At around 6.30 - 7.00pm Dr Fernando called the defendant Bach to come into her consulting room. Dr Fernando told the court that Ms Bach said that her partner, (the defendant Mason), had the same problem and she asked if he could come in at the same time. Dr Fernando consented to this. Dr Fernando thought his name was Jason and referred to him as Jason throughout the proceedings. Nothing turns on this. Both defendants went into Dr Fernando's consulting room.
4. The defendant Bach was seated close to Dr Fernando at the desk. The defendant Mason was seated close to the door of the entrance of the consulting room, although, from the photos tendered into evidence, it looks as though he was still quite close. Estimates given of this distance in court were around two metres. Ms Bach explained she was in rehab and wanted to get off of drugs. She had the phone number of the Royal Darwin Hospital's drug rehabilitation unit. Dr Fernando telephoned the unit but being after usual hours, there was no answer. She confirmed that the phone number she was given was the number of the unit. She also agreed the defendant Bach told her that they had a drug problem and that they had been told by the hospital to consult a GP about obtaining a prescription for methadone. Dr Fernando thought they were genuine.
5. Dr Fernando told the court Ms Bach said she had pain in the ribs. She said she wanted methadone. Ms Bach was speaking rapidly but in a friendly manner. Dr Fernando told Ms Bach she could give panadeine forte for the pain. At that point, both defendants told her it was rubbish; that they didn't want that form of treatment. The defendant Bach said she didn't think Dr Fernando was going to help [her]. Dr Fernando said she would not prescribe methadone to them; the defendant Bach produced a bottle from the Katherine pharmacy, a brand of methadone and said words to the effect: if this doctor can prescribe methadone, why can't you? Dr Fernando does not prescribe methadone. She chooses to deal with patients in this situation by sending them to the hospital rehabilitation unit. Dr Fernando agrees she did not examine Ms Bach concerning the pain; she did not take her blood pressure; she agreed if the defendant Bach had been using opiate based drugs for pain relief, it was likely she would have a higher tolerance to pain relief drugs. She did not think her pain was genuine, partly it seems, because of the unstable history of a drug dependant patient.
6. The defendant Bach became angry and raised her voice, then started crying. During this period she said words to the effect of "if you don't help me I might smash the place up." Dr Fernando did not know whether this was actually directed at her surgery or premises more general. The defendant Bach was at various times begging, imploring or pleading. At around this time the defendant Mason changed his position by moving closer to the door; he did this by standing up and moving his chair a very short distance; he had an object in his hand that he was jiggling around that Dr Fernando thought in a split second was a knife; during the proceedings it emerged and was conceded by Dr Fernando that the object was probably his key ring. Immediately at this point she wrote the prescription; she wrote a prescription for the defendant Bach and after he said, in a quiet voice, "what about me", she wrote one for the defendant Mason. Ms Bach thanked her. Mr Mason took the slip of paper with the telephone number on it for the hospital with him.
7. Dr Fernando wrote the prescriptions because she felt threatened. She felt threatened for a number of reasons; first, the defendant Bach was getting angry and had made the comment that she might smash the place up; she thought the defendant Mason had a knife (it must be remembered he did not in fact have one); there were two of them, patients in her room, being a divergence from her usual practice, (especially with drug users, she would not see more than one patient at a time); Dr Fernando has previously experienced threatening situations with drug dependant patients; there was only herself and the receptionist present at the surgery. Dr Fernando was clear that the defendants did not directly threaten her. She agreed she felt confused about her reaction to what had occurred.
8. After the defendants left the consulting room, she said she felt relieved and stayed in the room. She did not contact police but having thought it through, contacted a pharmacy to stop the prescription being filled. She didn't do this immediately and went on to see her next patient.
9. The defendants then had an argument with the receptionist about the accounts. The defendants, probably through a conversation earlier in the day, were under the belief they would be bulk billed or at least not have to pay on the spot. Ms Crisp said she swiped the defendant Mason's Medi-Care card. Dr Fernando instructed her not to worry about the account. She took the defendant Bach's address to send the account. Further evidence confirms the address given was the correct address. Ms Crisp confirmed the defendant Bach told her she had lost her key-card. Another witness, Ms Thwaite confirmed the defendant Bach offered to leave her wallet as some sort of security.
10. The defendants were interviewed by police. They deny the allegations. Both seemed to be under the impression at the beginning of the interview that they were suspects that had something to do with the fact that they didn't pay the account.
The elements of the charge and conclusions on whether the charge is made out.
11. There are a number of authorities from other jurisdictions on the elements of this crime. The charge must also be interpreted in the light of criminal responsibility principles in the Northern Territory, in particular, the question of mental element governed by s 31 Criminal Code most recently considered by the Court of Criminal Appeal Director of Public Prosecutions Reference No. 1 of 2002 [2002] NTCCA11 . I bear in mind that the impugned acts and the consequent event must be intended or foreseen as a possible consequence of the conduct.
12. Counsel for the Director, Mr Johnson concedes that there is no evidence of pre-concert. He puts the prosecution case on the basis that both defendants, by their various words or actions aided each other in the commission of the offence. I agree this is a fair basis on which to put the case. To succeed on this basis, each defendant must at least be aware of the purpose of the actions of the other and be aware that their own actions aid the other. There being no independent evidence of pre-concert or common purpose, it is not a case where the evidence of the acts of each defendant can be relied upon as proof against the other: (Tripodi R 104 LLR 512). Rather, it must be proved that each defendant was aware they would aid the other by their words and/or actions. I agree that all of the various acts of each defendant must be considered cumulatively to determine whether there was a demand was made with menaces.
13. In my view it is overly clinical to require separate proof of the demand and then determine whether there are any separate menaces that apply to the making of the demand. The demand and the alleged menaces may be one and the same, or there is at least a relationship between the demand and menaces offered. This relationship between the two concepts is impliedly acknowledged in the definition of menaces in s 1 Criminal Code. I intend to follow the approach of the High Court in Austin v The Queen [1989] HCA 26; (1989) 166 CLR 669 dealing with the South Australian offence of sending a letter demanding property with menaces where Brennan, Deane, Dawson, Toohey and McHugh JJ at 675 stated:
"It is the behaviour of the offender in making a demand with menaces or threats which is the gist of the offence and not actions or events over which the offender may have no control….[I]t is appropriate to regard the offence of demanding money with menaces or threats as complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent".
14. Professor Williams in his text, Property Offences, 3rd edition (1999), LBC at 250 - 252 details the history of the various meanings attributed to the word menaces. The Criminal Code (NT) definition appears to draw from a more modern meaning at common law, said to be liberally construed as not limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such an action is intended: (Thorne v Motor Trade Association [1937] AC 797 at 817). Certainly the Criminal Code (NT) definition is not confined to threats as the earlier common law may have been: (see Property Offences, supra at 250-252).
15. To prove the commission of this offence, it must be shown the demand with menaces must be of such a nature and extent 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: (R v Clear [1968] 1 QB 670 at 679). This reasoning was applied in Benasic v The Queen (1987) 77 ALR 340 where the Federal Court accepted that the assessment of whether the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive was an objective test. The Court further determined that although it was an objective test, this did not prohibit evidence from the person allegedly menaced on how they reacted to the demand as although not conclusive, it offers some assistance to the fact finding tribunal in coming to a conclusion on the objective test. The same reasoning is found in the NSW case of John Rae (1998) 104 A Crim R 348.
16. In applying the law to the facts in this case, there is one matter that detracts significantly from the prosecution case, that is, Dr Fernando thought the defendant Mason began to jiggle a knife around. She believed he had a knife at the time. Police found a knife in the possession of the defendant when they later searched his premises and car. They also located and seized a key ring. The key ring is silver with a large hole. Dr Fernando remembers the hole. The hole is in the key ring, not the knife. I should emphasise also that it is not alleged the defendant was doing anything to create the pretence of carrying or brandishing a knife. If he had done so, the situation would have been the same as if he did have a knife. The glimpse of what she thought was a knife formed a major part of the intimidation felt by Dr Fernando. There simply was no knife.
17. In determining whether there was a demand for the methadone prescription with menaces, the facts, (varying greatly in significance to the establishment or otherwise of the charge), militating in favour of such a conclusion are the statement by the defendant Bach that she said words to the effect of "if you don't help me I might smash the place up;" that there were two persons in the consulting room; that the two defendants angrily rejected the offer for pandeine forte for pain relief; that the defendant Mason moved closer to the door; that the speech of the defendant Bach was at times agitated and aggressive; that Dr Fernando does not herself usually prescribe methadone; that Dr Fernando felt threatened and that as a result of prescribing methadone when her usual practise is not to, she called a pharmacy to cancel the prescription.
18. Circumstances militating in the other direction include the fact that there was no knife; the statement "if you don't help me I might smash the place up" and other angry words were interposed with crying and pleading; Dr Fernando's evidence was in part ambiguous at the level of threat or discomfort she felt, agreeing at one point that it may have been the fact that the defendants were drug dependent that raised her apprehension; Dr Fernando maintained eye contact throughout the consultation with Ms Bach; the defendant Mason asked in a quiet voice what about me; the defendants left their names, correct addresses and various other contact details with the receptionist after the consultation; that the statements to police by the defendants indicate they thought they were in some other type of trouble; that the defendants in even going to a GP were acting on advice given by the Royal Darwin Hospital; that the defendant Bach was suffering pain.
19. None of these factors or circumstances are determinative in their own right. Much was made at the hearing of the fact Dr Fernando did not report the matter to police. In my view, that is of marginal significance. In my view, professionals working in the caring professions are unlikely to make a complaint to police unless the circumstances are very serious. Dr Fernando took other action, namely arranging for the pharmacy to cancel the prescription. Regardless of this, according to he evidence, there is still some confusion in her mind about exactly what was occurring in her room. I should mention also that Dr Fernando has wide experience dealing with drug dependent persons. She has had some unpleasant professional experiences in the past dealing with drug dependent patients. I completely understand she wanted to bring an uncomfortable and difficult consultation to an end and by prescribing the methadone, although she was uncomfortable doing it, that brought about the desired object - to end the consultation.
20. As a criminal matter the prosecution must prove there was a demand with menaces beyond reasonable doubt. In this matter there are many facts and circumstances as outlined above that militate against such a conclusion. Much of that material comes from the prosecution witnesses themselves. My summary of the various factors assumes an element of aiding. Without that, and dealing with each defendant's actions and words individually, the prosecution case becomes even weaker. Added to that, when I assess the evidence of intent or foresight, even if it is accepted that the defendants acted intentionally, it seems most unlikely that they foresaw that their actions would result in a level of intimidation of such a nature and extent 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. It is my view that for the charge to succeed, under the rules of criminal responsibility in the Northern Territory, it would have to be proved that the defendants foresaw in general terms this consequence as a possibility: (s31 Criminal Code (NT); Director of Public Prosecutions Reference No 1 (Supra).
21. For the above reasons I have concluded that the charge is not made out beyond reasonable doubt against either defendant. The charge is therefore dismissed and both defendants are discharged.
_________________________
JENNY BLOKLAND
STIPENDIARY MAGISTRATE
Police
Bach & Mason [2003] NTMC 25
Charge of demanding with menaces under s 228 Criminal Code (NT) dismissed; both defendants discharged on 21 May 2003 by Stipendiary Magistrate Jenny Blokland (para 21).