Tracey v R [1999] WASCA 77

Court of Appeal (WA)|1999-06-23|Before: Wallwork J, Kennedy J, White J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TRACEY -v- R [1999] WASCA 77

Criminal law - Threat with intent to compel the doing of an act by a person who is lawfully entitled to abstain from doing that act - Meaning of threat - Whether further direction as to meaning of "threat" required - Importance of intent to compel

Customs Act 1901 (Cth), s 233B, s 237

Green v The Queen, unreported; CCA SCt of WA; Library No 950592; 8 November 1995; unreported; HCA; No P41 of 1996; 4 October 1996

Hughes v The Queen (1989) 42 A Crim R 270

1 KENNEDY J: The facts are set out in the reasons for judgment of Wallwork J, and I do not propose to repeat them at length.

2 The two counts in the indictment presented against the appellant were as follows:

"(1) On 16 September 1996 at East Perth William Warren Tracey made a threat with intent to compel the doing of an act by Frank Alan Rystenberg who was lawfully entitled to abstain from doing that act.

(2) And further that on the same date and at the same place as in count one William Warren Tracey made a threat with intent to compel the doing of an act by Tracy Anita Rystenberg who was lawfully entitled to abstain from doing that act."

Surprisingly, no particulars of the relevant threats were either sought by, or provided to, the appellant.

3 The charges were brought under s 338A of the Criminal Code, which provides as follows:

"338A. Any person who makes a threat with intent to -

(a) gain a benefit, pecuniary or otherwise, for any person;

(b) cause a detriment, pecuniary or otherwise, to any person;

(d) compel the doing of an act by a person who is lawfully entitled to abstain from doing that act,

(e) where the threat is to kill a person, to imprisonment for 10 years;

(f) in any other case, to imprisonment for 7 years."

4 Section 338 gives the meaning of the expression "threat" for the purposes of the Chapter, in which s 338A finds its place. It provides:

"338. In this chapter a reference to a threat is a reference to a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to -

(a) kill, injure, endanger or harm any person, whether a particular person or not;

(b) destroy, damage, endanger or harm any property, whether particular property or not;

(d) cause a detriment of any kind to any person, whether a particular person or not."

5 Offences similar to those presently alleged, which have arisen out of industrial disputes, have posed considerable difficulties for the courts, involving, as they frequently do, the resolution of competing interests. They have a long history. The origin of s 338A may be traced back to the English Conspiracy and Protection of Property Act 1875 - see R v Zaphir [1978] Qd R 151, at 165.

6 The learned trial Judge, at the commencement of her summing up in this case, in describing the charges brought against the appellant, referred to them simply as being charges of threats with intent to cause detriment, although shortly afterwards she did go on to divide the offences into their constituent elements of (a) a threat to cause a detriment, (b) the identification of the accused as the person who made the threat and (c) the particular intention with which the accused made the threat, that intention being to compel the doing of an act which Mr and Mrs Rystenberg were lawfully entitled to abstain from doing. She proceeded then to read out what she described as the "definition" of "threat" in s 338 of the Code. It is, however, one of those definitions which includes the word being defined in the definition itself. Her Honour did not, herself, attempt further to define the word "threat" for the benefit of the jury. She correctly indicated that whether or not what was said or done by the accused constituted a threat was to be determined by the jury objectively. In this context, she did add, however, that the subjective intention of the person making the threat was irrelevant. In those terms, that direction could have been misleading, because it was an essential element in the offence charged that the appellant had the intent to compel the doing of an act by a person who was lawfully entitled to abstain from doing that act. However, no complaint was made as to this, and it would seem that her Honour sufficiently indicated later that this particular remark had related to the Crown's not having to prove that the accused intended to carry out his threat.

7 When putting the Crown case, her Honour summarised it as simply being that there was a threat, and that the jury was asked to believe the truth and accuracy of the evidence of the complainants. No reference was made at that time to the requirement for proof of the necessary intent on the part of the appellant in making the threat. She did, however, subsequently direct the jury that, before they could convict the appellant, they had to be satisfied that he had made a threat and that he had made it with the intention of compelling the doing of an act by Mr Rystenberg, who was lawfully entitled to abstain from doing that act. Inadvertently, her Honour made no reference to the second count, which was directed to the threat to Mrs Rystenberg; but it is quite improbable that the jury would have been misled as to the need for them to find that the accused had the intention to compel Mrs Rystenberg to join with her husband in withdrawing their application before they could convict on the second count.

8 The defence case was that there had been no threat made by the appellant. Understandably, counsel for the appellant did not seek to put before the jury a defence that the accused was not intending to compel Mr and Mrs Rystenberg to withdraw their application to suspend the articles of apprenticeship of their apprentice.

9 The jury were sent out to consider their verdicts, but they returned after a relatively brief retirement with a request for her Honour's definition of "a threat". They also requested the transcript of the evidence of one of the defence witnesses. Counsel, under her Honour's direction, read out to the jury the evidence of that witness. Following this, her Honour did not in fact provide the jury with a definition of "threat" as they had sought. She said:

"In the end it's a matter for you to decide whether you're satisfied to the required standard that what the Rystenbergs told you - their version of what happened - is the truthful and accurate version. If you are satisfied that their version of it is, then it would seem to me that it is a threat, but again that's a matter for you. You may think, "I believe her version, but I don't believe that she took it as a threat", or, "If I'd been floating around above her watching the whole thing, if I'd been on the ceiling looking down, watching it, I would have regarded it as a threat; objectively speaking it could be regarded as a threat"."

Once again, there crept into this portion of the direction a suggestion that Mrs Rystenberg's personal view as to whether it was a threat was a material consideration, when it was not.

10 Her Honour then indicated to the jury that she did not know whether she could take the matter any further than she had, but she said she was happy to answer the jury's questions and, if they had been caused even more confusion, she was happy for them to come back again. The jury apparently reassured her Honour that they required nothing more.

11 Although it can be argued that words such as "threat", "detriment" and "compel" are ordinary words commonly used and understood, in the context of this case, further directions, in my view, would have been helpful for the jury. A useful, frequently cited definition of the expression "threat" is to be found in the judgment of Lush J in Wood v Bowron (1866) LR 2 QB 21, at 30. The court was in that case concerned with a statute which made it an offence "by violence to the person or property of another, or by threats or intimidation, or by molesting or in any way obstructing another, to force, or to endeavour to force, any manufacturer, or person carrying on any trade or business, to make any alteration in his mode of regulating, &c, such business, or limit the number of his apprentices, or the number or description of his workmen, &c". Lush J said:

"After the decisions that have been given upon this statute, it is too late to say that the word "threat" is limited to the declaration of an intention to do those acts with which it stands in intimate connection, viz acts of violence to the property or person of another. The cases that have been decided show that the word must have a wider sense; namely, a threat by act or words of doing some injury to another person. But I apprehend that it is the very essence of a threat that it should be made for the purpose of intimidating or overcoming the will of the person to whom it is addressed."

12 The last sentence describing the essence of a threat is particularly relevant to the present case.

13 The suggestion was made that the word "detriment" in s 338(d) of the Criminal Code should be qualified, and that it should be taken to mean an "unlawful detriment". The words "of any kind" in s 338(d) appear to me to preclude any attempt to limit the scope of the expression. In R v Zaphir (supra), the Queensland Court of Appeal had to consider the provisions of s 359 of the Queensland Criminal Code. The "threat" in the Queensland Code in the relevant section was to do any injury or cause any detriment of any kind to another. It was argued for the accused in that appeal that the trial Judge was wrong in failing to direct the jury that the "detriment" under that section must in itself have, or involve, a criminal or unlawful connotation. Wanstall CJ, with whom Matthews J agreed, said, at 164:

"I cannot see any necessity or justification for putting the suggested gloss on the section. By its plain words it makes unlawful the uttering of a threat to do another any kind of injury or to cause him any kind of injury or to cause him any kind of detriment, with the specified intent."

14 The third appellate Judge, Kelly J, at 180, said:

"The words "injury" and "detriment" are both qualified by the further words "of any kind", and that being so I can see no warrant for importing a qualification that the injury or detriment must involve a criminal or unlawful connotation."

15 The criminality in this offence rested upon the proof of the making of a threat with intent to compel Mr and Mrs Rystenberg to do something they were entitled to abstain from doing. In offences of this nature, the intention behind the threat is all important - cf R v Pollock [1967] 2 QB 195, at 211 - 212.

16 Dictionary definitions of "compel" commonly take the form of "to urge irresistibly, to constrain, to force". The meaning of "compel" contrasts with the meaning of "persuade", and it would have been desirable for her Honour to have given the jury additional assistance by identifying for them the respective versions of the words spoken by the appellant and by indicating whether, from those words, it was open to the jury to infer that the appellant intended to compel Mr and Mrs Rystenberg, by the words spoken, to withdraw their application. The significance of the intention of the appellant was not sufficiently impressed upon the jury. With respect, it appears that everyone concerned in the trial failed to attach sufficient importance to this element of the offence which is really central to it.

17 Having carefully considered the terms of her Honour's summing up, I have reached the conclusion that it was such as to render the verdicts of the jury unsafe and unsatisfactory. In the end, it does appear to me that the directions of her Honour regarding the need to determine, in an objective manner, whether there was a threat, without regard to the intention of the appellant or the beliefs of Mr and Mrs Rystenberg, did lead to some confusion and did, it appears to me, diminish the centrality of the intent with which the appellant made the threat. I consider that the jury should have been assisted by further guidance regarding the nature of a threat and the meaning of "compel". It would also have been helpful to have expanded on the nature of picketing. Picketing can take a number of forms. In the end, the question for the jury was whether the appellant had made a threat involving picketing with the requisite intent to compel the withdrawal of the Rystenbergs' application.

18 There were three grounds of appeal relating to the admission of what the appellant claimed to be inadmissible evidence. The first complaint related to the evidence of Mrs Rystenberg that she told the Chairman of the Apprentice Tribunal that, under the threat of picketing, she and her husband would have to withdraw the application for the suspension of their apprentice. She was then asked by the Crown Prosecutor whether the Chairman had said anything in response to that. She replied that he accepted it. She then said that they withdrew their application because they felt they had to. When asked why, she replied, "Because we didn't want to lose our house and our car. We had a four year old daughter and I didn't want her on the streets." That evidence was irrelevant and prejudicial and should not have been admitted. It amounted to Mrs Rystenberg's reaction to the words which she claimed constituted a threat. It is no answer to this ground of appeal to say that this evidence was "merely part of the factual matrix and put the conversation which was said to constitute the threat in context".

19 The position is the same with respect to the evidence of Mr M W Bird, the Chairman of the Apprentice Tribunal, who gave evidence as to the reasons given by Mrs Rystenberg for wanting to withdraw the application - "She said that - on account of threats made against them that they may be black-listed or action taken against their business, may cause some detriment obviously to the business, and her main concern of concern was that they would lose their house and property and those kinds of things".

20 It should be added that no objection was taken by counsel for the appellant at the trial to the admission of this evidence. Nor was any objection made by him to the admission into evidence of what were described as notes of the hearing, which purported to set out the reasons which the Rystenbergs gave to the tribunal for the withdrawal of their application. In the context of summarising the Crown case, her Honour appears to have sought to justify the admission of the evidence of what Mrs Rystenberg told the tribunal, "not for the truth of the fact that the accused made a threat, but to show the consistency of [Mrs Rystenberg's] evidence", thereby treating it as if it were a complaint in a sexual matter. The statement was, however, no more than a self-serving statement on the part of Mrs Rystenberg and the evidence was inadmissible.

21 For the foregoing reasons, I would allow the appeal, quash the convictions and order a new trial.

22 WALLWORK J: These are reasons for judgment after the hearing of an appeal by the appellant against two convictions of making threats with intent to compel the doing of an act by a person who was lawfully entitled to abstain from doing that act. The appellant was fined $1,000 for each offence.

23 The appellant, who was a Union representative, was alleged to have threatened a man and woman who conducted a business. They had made an application for the cancellation or suspension of their apprentice's apprenticeship. At the trial it was said in opening by the learned prosecutor that when the complainants had made it clear to the appellant that they intended to continue with their application, the appellant had told them bluntly that if they did not agree with his demand to withdraw their application, he would proceed to organise a Union picket on all the construction sites at which their business was working. The prosecutor said that both complainants had believed that the accused had the capacity and intent to carry out his threat.

24 The jury was told in the opening that the complainants had later attended a hearing before the Apprentice Training Tribunal and had told the Chairman of the Tribunal that "with the threat of picketing on the job and losing everything we will have to keep Adam on." The Chairman then said, "So you're saying that you want to withdraw the application?" The male complainant responded, "Yes we have to." The application was subsequently dismissed.

25 It was firstly submitted on appeal that the learned trial Judge had not given a sufficient direction to the jury as to the meaning of the word "threat" which is defined in s 338 of the Code.

"In this chapter a reference to a threat is a reference to a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to -

(d) cause a detriment of any kind to any person, whether a particular person or not."

27 It was contended that the learned trial Judge had also erred when after it had retired, the jury came back and made a request for "the Court's or her Honour's definition of a threat". After receiving that request the learned Judge, having read some of the relevant evidence had said:

"In the end it is a matter for you to decide whether you are satisfied to the required standard that what the Rystenbergs told you - their version of what happened - is the truthful and accurate version. If you are satisfied that their version of it is, then it would seem to me that it is a threat, but again that is a matter for you. You may think, 'I believe her version, but I do not believe that she took it as a threat,' or, 'if I had been floating around above her watching the whole thing, if I had been on the ceiling looking down, watching it, I would have regarded it as a threat'; objectively speaking it could be regarded as a threat."

28 It was submitted for the appellant that by instructing the jury in that way the learned Judge had effectively removed that issue from the consideration of the jury.

29 Amongst other things, it was contended for the appellant that the word "detriment" in the definition of threat in s 338 of the Code did not include conduct which was lawful. That the mere creation of a picket line is not unlawful conduct, either criminally or tortiously, unless it involves obstruction or "besetting". It was said that the word picketing has many different meanings.

30 A further contention concerned the admissibility into evidence of what had transpired at the hearing before the Tribunal and the learned Judge's failure to comment concerning the use which the jury could make of that evidence.

31 With respect to the alleged threat, when summing up to the jury the learned trial Judge, after reading the relevant portion of s 338 of the Criminal Code, said:

"The threat that is alleged here is a threat to picket every building site on which the Rystenbergs had work and the issue for you is, was that said and is it a threat. You must be satisfied beyond reasonable doubt that it was said and you must be satisfied beyond reasonable doubt that it was a threat. It is no part of the offence that the person who is making the threat should possess an intention to carry it out. That is to say, the subjective intention of the person making the threat is irrelevant so that if you said, 'Yes, I am satisfied that he said these words to them, that he would picket every building site if they did not do what he wanted,' if you are satisfied, it is not a matter that - the Crown does not have to go and prove to you that he would have done it. It is not part of the offence that the person who is making the threat possesses an intention to carry the threat out. That is to say, the subjective intention of the particular person, Mr Tracey in this case, is irrelevant. The words used, when objectively construed must constitute a declaration of intention to picket every building site on which the Rystenbergs had work. So that is what the words used must be and that is how the hearer must hear them. It is not what his intention is, so you have no enquiry into the subjective intention of the person alleged to have made a threat. The words alleged to constitute a threat must constitute, objectively speaking, a declaration of an intention to picket every building site on which the Rystenbergs work. The meaning of the words may depend on the circumstances in which they are used and any task of construction would ordinarily involve an examination of the circumstances."

32 The learned trial Judge then referred to a situation where a threat had been made to kill somebody and told the jury that it would have to be a genuine threat to kill, not such as a threat as a mother might make by saying, "Look, I could have killed the kid. It threw a tantrum in the supermarket." Her Honour went on to say:

"It is not what the person who says it thinks subjectively. It is objectively whether it is a threat. So it is no part of the offence that the person who is making the threat should possess an intention to carry out the threat. That is to say, the subjective intention of the person making the threat is irrelevant. Therefore the words used when objectively construed must constitute a declaration of intention to picket every building site on which the Rystenbergs had work."

33 The learned trial Judge went on to say that there should be no enquiry into the subjective intention of the person alleged to have made the threat. The learned Judge said:

"So the first thing you have got to be satisfied about is that he said it, and the second thing is that objectively speaking it was a threat."

34 The learned Judge then addressed on the question of the intent in the maker of the threat to compel the doing of an act. However, that last matter is not complained of in this appeal.

35 The learned Judge told the jury that the appellant had denied that he had threatened the Rystenbergs. That the issues for them were the matter of whether the appellant had made a threat and his intention.

36 It was conceded for the appellant that the learned trial Judge had correctly directed the jury that the test as to a threat was objective. However, it was submitted that apart from reading the definition of threat in s 338, no other direction or assistance had been given to the jury to enable them to determine or understand what a "threat" was, or the meaning of the word "detriment" in the definition, s 338(d). It was submitted that by coming back and asking for a definition of threat the jury had indicated that the question was troubling them and that they had felt uncertain in undertaking the task which they had to undertake. It was also submitted that after the jury had come back with their question the learned Judge had effectively removed an essential element of the offence from the consideration of the jury.

37 The appellant primarily contended that lawful conduct could not constitute an offence within the meaning of s 338. Reliance was placed on the reasons in Australian Builders Labourers Federated Union of Workers - West Australian Branch v J-Corp Pty Ltd (1993) 48 IR 452 at 467 where Spender J had discussed "the common understanding" of a picket line. His Honour said:

"Given that a 'picket' can have many and different meanings, ranging from the military connotation of somebody on guard duty to the lone protester, it is, in my respectful view, wrong to commence with the premise that in an industrial context, a picket line involves the prima facie contravention of s 45D of the Trade Practices Act 1974, and such a contravention can be avoided if there is a sufficient disclaimer that access is not prevented or hindered. The freedoms of speech and assembly, including the right to protest, are important democratic freedoms."

38 In that decision, in their reasons for judgment, Lockhart and Gummow JJ at p 456 referred to the reasons of the English Court of Appeal in Hubbard v Pitt [1976] QB 142 and said:

"There, for example at 172-173, the term 'picket' was used to describe an orderly and peaceful collection of persons outside particular premises in circumstances where there was no obstruction, molestation or intimidation of persons entering and leaving the premises, the object of the picket being the communication of information. The result was that there was no unreasonable obstruction amounting to public or private nuisance, or any other tort."

39 Their Honours referred also to the decision in Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 where Mason JA at 767 said:

"At common law, picketing is not necessarily a nuisance and unlawful as such, but it becomes so if it involves obstruction and besetting...Here the pleading makes it abundantly clear that the form of picketing threatened involved obstruction of the thoroughfares and besetting of those who wished to enter the clubs, thereby constituting a nuisance and an interference with their rights."

"'Besetting' includes the occupation of a roadway or passageway though which persons wish to travel, so as to cause those persons to hesitate through fear to proceed, or, if they do proceed, to do so only with fear for their own safety or the safety of their property..."

41 Lockhart and Gummow JJ also referred to Williams v Aristocratic Restaurants (1947) Ltd (1951) 3 DLR 769 where the Supreme Court of Canada considered the picketing of a restaurant. At 789 Rand J said:

"There is a difference between watching and besetting for the purpose of coercing either workmen or employer by presence, demeanour, argumentative and rancorous badgering or importunity, and unexpressed, sinister suggestiveness, felt rather than perceived in a vague or ill-defined fear or apprehension, on the one side; and attending to communicate information for the purpose of persuasion by the force of a rational appeal, on the other."

42 There was some discussion during the argument on this appeal as to what the threat alleged actually was. It had not been particularised. It was submitted by counsel for the appellant that a conversation involving the possible loss of the complainants' house, business and car was not the threat upon which the learned Crown Prosecutor had opened.

43 It was submitted for the appellant that if what the appellant had been doing was lawful, for example, protesting at the complainants' conduct, that would be lawful conduct and not an offence under the Criminal Code. It would be rather the exercise of a democratic right. Another example would be a person who threatened not to come back to a shop when he was not satisfied with the service. That could cause a detriment in the sense of the ordinary use of the word. It was contended that a person has a right to tell a shopkeeper that he is going to tell his friends not to come back to a shop. It was also said that a person holding up a sign could cause economic detriment to somebody, but that would not necessarily be a criminal offence pursuant to s 338A(d) of the Western Australian Criminal Code.

44 It was further contended that to say to a judgment debtor that "unless you pay what you owe me I am going to execute on your property" would be an offence against s 338A if the threat was not required to be unlawful. So would a solicitor's letter of demand threatening to issue a Writ from the Supreme Court. Reference was made to the words of Peterson J in Hodges v Webb [1920] Ch D 70 at 89 where his Lordship said:

"If a threat amounts to intimidation or a menace of violence it cannot be defended; but assuming that it does not, the question remains whether it does in fact exercise pressure of an unlawful kind. Omitting cases of conspiracy or combination, I venture to doubt whether the pressure of a mere statement that the speaker intends to do something which he is legally entitled to do if the man to whom he is speaking does not adopt a particular course, can be unlawful pressure. If it is, then the case of the butler who obtained dismissal of the cook by threatening to leave if she was not discharged is a more serious case than Lords Herschel and Shand in Allen v Flood [1898] 1 App Cas 1 considered it to be."

45 It was submitted for the appellant that s 338A(d) which makes the relevant crime punishable by imprisonment for up to seven years should not be given an interpretation wide enough to infringe upon the right of the subject to engage in legitimate democratic actions.

46 It was conceded for the respondent that the Crown case was opened on the basis that the threat was a threat to picket the building sites thereby causing detriment to the business of the Rystenbergs. Further that that had been stated by the learned trial Judge in the summing up. It was however submitted that the section could not be restricted in the sense of applying only to unlawful or tortious conduct.

47 It was also conceded for the respondent that looking at the evidence it was difficult to say whether the picketing envisaged would have been lawful or unlawful. That on the words used the picketing contemplated could have been a lawful picketing. However, it was submitted that the words in the s 338A(d) could not be limited to refer only to conduct which was criminal, or conduct which was unlawful in a civil sense. The words should be given their ordinary meaning. It was conceded that a threat such as, "I want you to pay the money you owe me or I will sue you" would on that approach contravene the section. It was said that in this case the evidence was that the threat was to picket the building sites and thereby cause detriment to the business of the Rystenbergs. Mrs Rystenberg had said in evidence that she had said to the appellant, "So everything that Frank and I have worked for for 13 years will actually be lost because we want someone to work for their money and they do not want to?...So we will lose our house, our business, our car?" and he had said, "If it doesn't turn out, yes."

48 It was submitted for the appellant that it was the threat to picket that the whole case had focused on, both in the Crown opening and in the learned trial Judge's direction. It had not been focused on other consequences.

49 A study of Hansard for Tuesday, 16 October 1990 when the relevant section was introduced does not assist with the problem which has now arisen.

50 By way of general background, the blackmail offences listed in Halsbury's Laws of Australia include sending a letter demanding property with menaces or any threat " without reasonable cause." The text says:

"The word 'menaces' is liberally construed and includes threats of any action detrimental or unpleasant to the person addressed...a threat is sufficient to amount to a menace if 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...The expression 'without reasonable cause' poses an objective test; it is not sufficient for a defence that the accused believes there is reasonable cause for the demand...Where, however a person threatens actions which he or she is at liberty to commit, the person may, provided the act is in the furtherance of a legitimate business interest, ask for a money payment as an alternative to committing these acts."

51 In Thorne v Motor Trade Association [1937] AC 797; [1937] 3 All ER 157 Lord Atkin said at p 806:

"The ordinary blackmailer normally threatens to do what he has a perfect right to do - namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed he has not only the right but also the duty to make the disclosure, as of a felony, to the competent authorities. What he has to justify is not the threat, but the demand of money. The gravamen of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that the threat is to do something a person is entitled to do either causes the threat not to be a 'menace' within the Act or in itself provides a reasonable or probable cause for the demand."

"It appears to me that if a man may lawfully, in the furtherance of business interests, do acts which will seriously injure another in his business he may also lawfully, if he is still acting in furtherance of his business interests, offer that other to accept a sum of money as an alternative to doing the injurious acts. He must no doubt be acting not for the mere purpose of putting money in his pocket, but for some legitimate purpose other than the mere acquisition of money."

53 Dealing with the facts of that case Lord Atkin said:

"If the Council bona fide exercised this power with the bona fide intention only of carrying out this trade policy, in my opinion they would not be demanding the payment without reasonable and probable cause."

"It is plain that these rules and any similar rules of any other association in any other trade are capable of being abused: and if so nothing in this decision will prevent offenders from being subjected to criminal law. But if the rules were genuinely enforced I am satisfied that there would not be as in my opinion in Denyer's case [1926] 2 KB 258 there was not, any evidence of an absence of reasonable or probable cause."

"I think that the absence of reasonable or probable cause is in a criminal charge under this subsection a question of fact for the jury. But if the cause is reasonably capable of being associated with the promotion of lawful business interests the Judge should not allow the case to go to the jury if there is no evidence of the accused's intention going beyond such lawful business interests."

56 In that case the criminal charge which was referred to was in s 29(1)(i) of the Larceny Act 1916 which provided:

"Every person who - (1) utters, knowing the contents thereof, any letter or writing demanding of any person with menaces, and without reasonable or probable cause, any property or valuable thing...shall be guilty of felony..."

57 It can be seen that the words "without reasonable or probable cause" were in the relevant section. That is not the case in s 338A of the WA Criminal Code.

58 In the Thorne decision at p 812, Lord Russell said:

"The question of reasonable or probable cause appears to be one for the jury, but only of course where there is some evidence of its absence. In the present case there is, in my opinion, none."

"I think the word 'menace' is to be liberally construed and not as 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 action is intended. Thus it might ordinarily include such a threat as the threat to place on the Stop List, which for a motor trader has serious consequences. The crucial question is whether there is an absence of reasonable or probable cause."

"A demand to satisfy the subsection must be not merely with menaces but with an absence of reasonable cause."

61 When speaking of the direction to be given to a jury pursuant to s 29 subs 1(i) Lord Wright said:

"For that purpose they would have to decide, after being duly directed in law, if there was a demand in writing, if it was with menaces, if it was without reasonable or probable cause. The last direction would in my opinion need to be carefully explained."

"I think the jury should be directed by the Judge that the respondent Association had a legal right to put the person's name on the Stop List, so long as they did so in order to promote the trade interests of the Association and its members and not with intent to injure, and so long as the money, fine or penalty demanded was reasonable and not extortionate. In other words the jury would have to answer the question suggested by Lord Dunedin 'whether there was a conspiracy to injury or only a set of facts dictated by business interests.' The question of reasonable cause would have to be applied to the amount of the penalty or fine, as well as to the menace of inserting on the Stop List. If the amount demanded is beyond reason in all the circumstances, there could not be a reasonable cause for demanding that amount regarded merely from the aspect of quantum. There must be a reasonable cause for demanding the particular amount."

63 That is, speaking generally, the kind of direction which in this case, could have been given to the jury even though as stated above, a difference between s 338A of the Western Australian Code and s 29 of the Larceny Act 1916 (UK) is that in s 338A the words "and without reasonable or probable cause" do not appear.

64 When dealing with s 29 of the English Act_,_ Lord Wright said that the prosecution would be required to establish that there was an absence of reasonable cause in the full sense; that what was done was not done in the promotion of a legitimate trade interest of the Association and its members; that there was an intent to injure and that the money demanded as an alternative to the name being put on the stop list was extortionate or excessive. The onus throughout would be on the prosecution to establish all the elements of the offence.

65 Concerning the appellant's contention that the word "detriment" in the definition of threat must involve a criminal or unlawful connotation, in R v Zaphir [1978] Qd R 151 at 164 Wanstall CJ when referring to the equivalent section in the Queensland legislation said:

"I cannot see any necessity or justification for putting the suggested gloss on the section."

66 Chief Justice Wanstall said that in that case the act threatened, which was to procure the withholding of supplies on which the continuance of the relevant business depended, involved a violation of the person's legal right to obtain such supplies under his contract with the fuel company. His Honour relied on the decision in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 where it was held that a threat to break a contract may be the foundation for the common law action of intimidation.

67 Wanstall CJ said that it was sufficient in that case under s 359 of the Queensland Code, to treat the section as at least bringing within its scope the "uttering of a threat to cause a detriment to another by inducing a violation of his legal right, contractual or otherwise. Whether or not it extends to threats to cause a detriment to another by bringing about a consequence which is not in violation of the other's legal right should be left for decision in an appropriate case."

68 Wanstall CJ referred to the background of the Queensland s 359 concerning which, Sir Samuel Griffith, in his annotations to the section as it appeared in the draft Code, referred only to s 154 of the Italian Penal Code as a source. Wanstall CJ said:

"...the philosophy it embraces and the similarity of its unusual phraseology suggests to my mind that the draftsman was familiar with s 7 of the Conspiracy and Protection of Property Act 1875 (38 and 39 Vic c 86)."

69 In Zaphir Matthews J agreed with the reasons of Wanstall CJ.

"The essence of the appellant's case on these grounds is the meaning to be given to the word 'detriment' in the section."

71 Kelly J said that there was no reported case in which the interpretation of this section had been considered. His Honour said:

"The words 'injury' and 'detriment' are both qualified by the further words 'of any kind' and that being so I can see no warrant for importing a qualification that the injury or detriment must involve a criminal or unlawful connotation. Examples were given in the course of argument to illustrate the consequences which would ensue in situations in every day life if the word 'detriment' were not to be qualified in this way. In my view these considerations do not justify placing, as it were, a gloss upon the section which would be contrary to its clear words. It is not to be expected that the section would be invoked in circumstances such as those used by way of illustration even though on its strict terms it would be seem to apply."

72 In my view and with respect to his Honour's views, it is not sufficient when dealing with an offence punishable by imprisonment to say that "it is not to be expected that the section would be invoked" in certain circumstances. That leaves the decision as to whether a person commits a criminal offence or not to the person who lays the complaint.

73 In my opinion the answer to the problems raised by the definition of threat in s 338 of the WA Criminal Code is in the words in the opening paragraph which are:

"In this chapter a reference to a threat is a reference to a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to -

(d) cause a detriment of any kind to any person, whether a particular person or not." (my emphasis)

74 The word "threat" has a long history known to the law, some of which has been referred to earlier in these reasons. The relevant word in the definition insofar as it affects this appeal, is not "detriment", but "threat". It could not be a criminal offence punishable with imprisonment for seven years to make a lawful threat. It is an unlawful threat which is an offence.

75 Since Zaphir was decided, the High Court has decided He Kaw Teh v The Queen [1985] HCA 43; (1984-85) 157 CLR 523 which decision was concerned with the importation into Australia of heroin. In that case the learned Judge at the trial directed the jury that no specific state of mind, whether of motive, intention, knowledge or advertence needed to be proved by the Crown. His Honour suggested that the accused could establish a defence that he had an honest and reasonable belief in a set of facts which, if they existed, would make his act innocent. He said the accused bore the onus of establishing such a defence on the balance of probabilities. With respect to a charge of illegal possession which was also laid against the accused in that case, he directed that there were two defences open to the accused, namely that he had a reasonable excuse for the possession and that he did not know the goods in his possession had been imported into Australia in contravention of the Act. His Honour said that the onus of proof in either of those defences rested on the accused on the balance of probabilities.

76 In He Kaw Teh the two charges were laid pursuant to s 233B of the Customs Act. They were therefore statutory offences as is the one in question in this case.

"However the provision (s 233B) has to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v De Rutzen [1895] 1 QB 918 at 921 as follows:

'There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals and both must be considered.'

There has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes. Proudman v Dayman (1941) 67 CLR 526 at 540; Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248 at 261. However the principle stated in Sherras v De Rutzen has more recently been reaffirmed in the Judicial Committee and the House of Lords (Lim Chin Aik v The Queen [1963] AC 160 at 173; Reg v Warner [1969] 2 AC 256 at 272 and Gammon Limited v Attorney General (Hong Kong) [1985] AC 1 at 12-13 and in this Court: Cameron v Holt (1980) 642 CLR 342 at 346, 348). The rule is not always easy to apply. Its application presents two difficulties - first in deciding whether the Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element in the offence, in deciding exactly what mental state is imported by that vague expression."

78 Gibbs CJ said that one must have regard to the words of the statute creating the offence. The second matter to be considered is the subject matter with which the statute deals. Having referred to some of the matters relevant to the question, his Honour said at 530:

"These indications do not all point in the same direction, but at least they suggest the conclusion that the Parliament did not intend that the offence defined in paragraph (b) should be an absolute one. The expression 'mens rea' is ambiguous and imprecise. The passage which I have cited from Sherras v De Rutzen (supra) suggests that it means evil intention or a knowledge of the wrongfulness of the act."

79 His Honour referred to the case of Bank of New South Wales v Piper [1897] AC 383 at 389, 390 where their Lordships said:

"...but the questions whether a particular intent is made an element of the statutory crime, and when that is not the case, whether there was an absence of mens rea in the accused, are questions entirely different, and depend upon different considerations."

"These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one."

"However, it is more likely that the Parliament will have intended that full mens rea, in the sense of guilty intention or guilty knowledge, will be an element if an offence is one of a serious kind."

82 In the present case the offence being punishable with seven years imprisonment is "one of a serious kind".

"The gravity of the offence suggests that guilty knowledge was intended to be an element of it."

"With all respect I do not consider that the fact that the legislation dealt with narcotic goods supports the view that the Parliament intended to make the offence an absolute one or to make proof of guilty knowledge unnecessary; the gravity of the offence indicates to the contrary."

85 In an earlier decision Beckworth v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576 Gibbs J (as he then was) when discussing an indictment under s 237 of the Customs Act 1901 (Cth) said:

"In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams [1935] HCA 62; (1935) 53 CLR 563 at 567-568; Craies on Statute Laws (7th ed, 971) pp 529-534. The rule is perhaps one of last resort."

86 DC Pearce and RS Geddes in their Statutory Interpretation in Australia (3rd ed 1988), at 168, comment on the above statement as follows:

"This statement was endorsed by the High Court in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129 at 144-145 and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 163-164."

87 The foregoing comments of Gibbs CJ are consistent with requiring a criminal element to a threat under s 338A of the Criminal Code, WA, before a person could be liable to imprisonment for seven years for an offence under that section. Such a notion of "criminality" is not foreign to the criminal law in Western Australia. The accepted direction to a jury in a driving manslaughter case includes the words: "The departure from the standard of care must be such that you can say of it, that it is blameworthy to a degree which is deserving of punishment" - see also the words of Burt CJ in R v Doyle [1971] WAR 110 and 111-112 where his Honour said:

"...if you come to that conclusion and then conclude that his failure caused the death of another person, then it is certainly open to you as a matter of a value judgment to conclude that the accused was negligent in the criminal sense..."

88 Consistent with the foregoing dicta, is the fact that in construing s 338 of the Criminal Code, the Court is bound by s 18 of the Interpretation Act 1984 which provides:

In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object."

89 The Criminal Code is the schedule to the Criminal Code Act Compilation Act 1913 which was an "Act to enact a compilation of the Criminal Code Act 1902, with its amendments and portion of the Secret Commissions Act 1905, and for other related purposes."

90 The Criminal Code Act 1902 was "an Act to establish a Code of Criminal Law" and its preamble commences:

"Whereas it is desirable to declare, consolidate and amend the Criminal Law:...."

91 The purpose and object of the Criminal Code is the establishment of a code of criminal law. A construction which would impose criminal penalties upon the doing of an act which the person concerned is otherwise lawfully entitled to do, would seem not to promote that purpose or object.

92 Applying the principles discussed above, in my opinion, s 338 should be interpreted in a similar way to the section discussed by the Judges in the Thorne decision. The threat must be a criminal threat, being one "without reasonable cause". That would be consistent with s 397 of the Western Australian Criminal Code which makes it an offence for a person with intent to extort or gain, to demand anything in writing from a person "without reasonable cause".

93 As the jury in this case were not given such a direction concerning the meaning of the word "threat", I would allow the appeal, set aside the convictions and order a new trial.

94 WHITE J: I have had the advantage of reading in draft the reasons published by Kennedy J. Subject to the addition of a brief comment of my own in relation to the question whether the threat referred to in s 338(d) must be a threat to do something in itself unlawful, I entirely agree with what his Honour has said and with his proposed disposition of the appeal.

95 The appellant submitted that the word "detriment" as used in s 338(d) was intended to describe the conduct in the preceding subsections, that it was designed with the specific intent of catching indirect threats or, alternatively, should be confined to "some type of conduct proscribed in (a), (b) and (c), that is, unlawful conduct".

96 The appellant further submitted that s 338 is uncertain and ambiguous and should therefore be read down in favour of the accused person. It was submitted that the Crown conceded that there is conduct that falls within a strict interpretation of "threat" and "detriment" which does not offend the section and that the solicitor's letter is quoted as an example. Furthermore, it was submitted, the Crown conceded that a line must be drawn somewhere. The appellant submitted that:

"The interpretation contended for by the crown must make a solicitor's letter, hard bargaining in a commercial or legal context, hard bargaining in a social context, unlawful and would make otherwise non-tortious conduct illegal conduct. For example, one of the elements of the tort of intimidation that requires the conduct threatened to be illegal or tortious."97 It would, I think, clearly be an absurd result to construe s 338A in such a way as to hold that a demand by a solicitor on behalf of a client that a judgment debt be paid by a judgment debtor, failing which execution would be levied against the judgment debtor's property, would contravene s 338A(a) and (b) of the Criminal Code. Nor, with great respect, do I accept that this point is answered by the comments of Kelly J in R v Zaphir [1978] Qd R 151 at 180 where his Honour said:

". . . I can see no warrant for importing a qualification that the injury or detriment must involve a criminal or unlawful connotation. Examples were given in the course of argument to illustrate the consequences which would ensue in situations in everyday life if the word 'detriment' were not to be qualified in this way. In my view these considerations do not justify placing, as it were, a gloss upon the section which would be contrary to its clear words. It is not to be expected that the section would be invoked in circumstances such as those used by way of illustration even though on its strict terms it would seem to apply." (My added emphasis.)

98 However, the absurd result mentioned is avoided if the word "detriment" in s 338(d) is given its usual meaning of "loss, damage or injury": see Macquarie Dictionary (Revised Edition).

99 The expression "gain a benefit" as used in s 338A(a) of the Act seems inappropriate to describe the recovery of a lawful entitlement. In my opinion, it is to be construed as meaning gain a benefit to which the person concerned is not entitled.

100 I do not think that a compulsion to perform what is one's legal obligation can properly be described as a detriment in the context in which that word is used in s 338A(b) of the Act. To comply with one's duty can hardly sensibly be described as an injury, loss or damage.

101 Section 359 of the Criminal Code (Qld), with which the court in R v Zaphir (supra) was concerned, was in the following terms:

"Threats - Any person who threatens to do any injury, or cause any detriment, of any kind to another with intent to prevent or hinder that other person from doing any act which he is lawfully entitled to do, or with intent to compel him to do any act which he is lawfully entitled to abstain from doing, is guilty of a misdemeanour, and is liable to imprisonment for one year or to a fine of four hundred dollars."

102 In that case, Wanstall CJ, with whom Matthews J agreed, said at 164:

"It is sufficient for present purposes to treat s.359 of the Code as at least bringing within its scope the uttering of a threat to cause a detriment to another by inducing a violation of his legal right, contractual or otherwise. Whether or not it extends to threats to cause a detriment to another by bringing about a consequence which is not in violation of the other's legal right should be left for decision in an appropriate case.

I attach significance to the fact that the code makes common use of the phrase 'threats of any injury or detriment of any kind' in s.359 and in s.414 and s.415, in which it re-states offences cognate with the old offences of extortion by menaces. Consequently, in my view, there is no room for the suggestion that the threat of injury or detriment in contemplation of s.359 should be given any less scope that that already well established in the extortion-by-menaces cases."

103 The word "detriment" is used in the following sections of the Criminal Code of this State, namely, s 58, s 83, s 98, s 123, s 128, s 332, s 338, s 338A, s 396, s 397 and s 409. In each case, the word is used consistently with it involving a violation of another's legal right. I would respectfully adopt the view expressed by Wanstall CJ in the passage from his judgment in R v Zaphir quoted above and hold that s 338A brings within its scope the uttering of a threat to cause a detriment to another by inducing a violation of his legal right, contractual or otherwise. In my view, that means that a statement of an intention to do something that one is lawfully entitled to do would not be caught by s 338A(a) or (b). Whether or not it would come within the scope of s 397 of the Criminal Code which "re-states offences cognate with the old offences of extortion by menaces" would depend upon the relevant facts of the case.

104 I agree that the appeal should be allowed, the convictions quashed and a new trial ordered.

Protection of Property Act 1875

Compilation Act 1913

Commissions Act 1905

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