DISTRICT COURT OF QUEENSLAND
CITATION:
R v Omar Succarieh [2017] QDC 73
PARTIES:
R
v
SUCCARIEH, Omar (defendant)
FILE NO/S:
2272/15
DIVISION:
Criminal
PROCEEDING:
Trial – Judge-Alone
ORIGINATING COURT:
District Court
DELIVERED ON:
31 March 2017
DELIVERED AT:
Brisbane
HEARING DATE:
22 February 2017 – 24 February 2017
JUDGE:
Devereaux SC DCJ
VERDICT:
Guilty
CATCHWORDS:
CRIMINAL LAW - PARTICULAR OFFENCES – PROPERTY OFFENCES – EXTORTION AND LIKE OFFENCES – EXTORTION OR DEMANDING WITH MENANCES – GENERALLY – trial by judge sitting without a jury – where the accused was charged with extortion - where the defendant gave evidence of a belief that the complainant owed money to a third party - whether there was a debt owed - whether s.24 of the Criminal Code 1899 (Qld) engaged – whether the defendant reasonably believed there to be a debt - whether reasonable cause for the demand was excluded beyond reasonable doubt
CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – EXTORTION AND LIKE OFFENCES – EXTORTION OR DEMANDING WITH MENANCES – REASONABLE OR PROBABLE CAUSE – where the prosecution alleged several threats were made – whether the threats were made - whether reasonable cause for the demand is assessed with reference only to the demand and without reference to the nature of any threats
Criminal Code 1899 (Qld) s.24, s. 415 s. 644
Larceny Act 1916 (UK) s.29
Theft Act 1968 (UK) s.21
Hardie & Lane Ltd v. Chilton [1928] 2 K.B. 306Kelly, Baker and Perry [Nos. 144, 155 and 147 of 1991, unreported, 29 August 1991]
R v Campbell [1997] QCA 127
R v Craig (1903) 29 VLR 28
R v Dymond [1920] 2 KB 260
Reg. v Hamilton 1 C. & K. 212
R vJohnson and Edwards [1981] Qd R 440
R v Lacey & Lacey [2011] QCA 386
R vRobertson [1993] QCA 514
Thorne v Motor Trade Association [1937] AC 797
COUNSEL:
Mr M. B. Lehane for the Crown
Mr S. C. Holt QC for the Defendant
SOLICITORS:
Director of Public Prosecutions (Qld)
Anderson Fredericks Turner for the Defendant
The accused is charged as follows:
“That between the tenth day of March 2014 and the twenty-sixth day of March, 2014, at Brisbane city and elsewhere in the State of Queensland, he demanded a sum of money, without reasonable cause, with intent to gain a benefit for Yousef Masri[1] threatened to cause a detriment to Vasilios Pippos.”
[1]Although it would read better if the word ‘and’ were inserted here, the charge follows the form in the Criminal Practice Rules.
He has pleaded Not Guilty. On 6 February 2017 Judge Clare SC ordered the trial to proceed without a jury.
In the result, I am to determine, on the evidence, whether the accused is guilty.
The evidence comprised testimony of Mr Pippos, who was referred to as the complainant, and several police officers for the Crown. Mr Succarieh gave evidence. The prosecution tendered recorded telephone conversations and 3 SMS messages. The defendant formally admitted, pursuant to Criminal Code 1899 (Qld) (‘Code’) s. 644, that the speakers were correctly identified as himself, Yousef Masri, the complainant and Demitrios “Mitch” Conias. I have the benefit of transcripts of the recordings.
The burden rests on the prosecution to prove guilt beyond reasonable doubt. Although he gave evidence, the accused bears no onus to prove anything. It is upon the whole of the evidence that I must be satisfied beyond reasonable doubt of guilt before I could convict.
Some facts are not in dispute. I will return to them below. To some degree, where facts are in dispute, it is the word of the complainant against that of the accused. As this is a criminal trial the proper approach is that the prosecution case depends on acceptance of the complainant’s evidence despite the sworn evidence of the accused. So, even should I reject the accused’s account that would not lead automatically to conviction but would merely require consideration of whether the prosecution case proves guilt beyond reasonable doubt.
The credibility of the primary witnesses is in issue. Generally speaking, I accept the complainant as a truthful and reliable witness. His account was consistent and rang true. He was prepared to make concessions. One example was his free admission that, when he believed the accused was a potential purchaser of the café business, he exaggerated the business’ turnover and profit. Although counsel for the accused attacked the complainant’s evidence as to amounts he had been paid for working with or for Masri in a fruit and vegetable business as unrealistic, there was no basis put for doubting that evidence. That is, there was no evidence of that business’s turnover and profit nor what might amount to usual arrangements in that business. He also admitted he had not declared on his tax return certain amounts he paid himself in cash from the earnings of Masri’s business.
Having said that, there are parts of the accused’s evidence which I accept. There are not many areas where their accounts differ, and, as will appear, there are some where I think the accused’s account more likely. As to the recorded telephone calls, there is no significant dispute about what was said. The parties argue for different inferences to be drawn from certain passages.
The charge is provided for in s. 415 of the Code. Relevantly,
“(1) A person (the demander) who, without reasonable cause, makes a demand—
(a) with intent to—
(i) gain a benefit for any person (whether or not the demander); or
(ii) cause a detriment to any person other than the demander; and
(b) with a threat to cause a detriment to any person other than the demander;
commits a crime.
(2) It is immaterial that—
(a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or
(b) the threat does not specify the detriment to be caused; or
(c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way; or
Example—
a threat to cause a detriment to the public or any members of the public
(d) the detriment is to be caused by someone other than the demander.”
Before I may convict, the prosecution must prove that:
1. The defendant made a demand with intent to gain a benefit for any person, whether the defendant or someone else (or to cause a detriment to any person other than the defendant).
2. The demand was made with a threat to cause a detriment to any person other than the defendant.
3. The demand was made without reasonable cause.
The prosecution case was that the accused without reasonable cause demanded $50,000 from the complainant, Pippos, with intent to gain a benefit for Masri, with the following particularised threats:
(a) A threat to take over Mr Pippos’ business “either completely or for a period of time, without the complainant’s consent and with force if required”;
(b) A threat to “bring the demands directly to the attention of the complainant’s wife and daughter causing the complainant to fear for the safety of his family”;
(c) A threat to cause “physical injury” to the complainant.
Mr Holt QC, who appeared for the accused, submitted a list of uncontested facts. I am satisfied the following facts, drawn from that list but not precisely adopting it, are proved in the evidence directly or by necessary inference:
a. The complainant and Masri had a business arrangement in relation to a fruit shop owned by Masri.
b. Masri alleged that the complainant stole stock and cash from the business as a result of which the complainant owed him at least $50,000.
c. Masri authorised the defendant to approach the complainant to arrange for the money to be repaid.
d. On 12 March 2014 the defendant visited the complainant and they sat down at a table at the Courtyard Café and spoke for about 30 minutes.
e. The complainant denied that he owed the money but ultimately agreed to a payment plan and indicated that he wanted to apologise to Masri.
f. The agreement was that the complainant would pay $10,000 the next day and then $1,000 per week until the debt was repaid.
g. After the defendant left, the complainant arranged for his friend, “Mitch” Conias to help him. Over the course of the next day, 13 March 2014, there were several conversations between the defendant, Masri, the complainant and Conias.
h. Conias and the complainant advised the defendant that Conias was going to pay the $10,000 on the complainant’s behalf. However, they both wanted to pay the money directly to Masri. The complainant explained twice that this was so that he could apologise to Masri.
i. At 10.31.02pm on 14 March 2014 Conias delivered $10,000 to Masri on the complainant’s behalf.
j. On 24 March 2014 the defendant contacted the complainant to arrange for the next payment to be made.
k. A complaint was made to police on 26 March 2014.
As Mr Holt submitted, in writing, there is no doubt the accused made a demand for $50,000 of the complainant with intent to facilitate the payment of that amount to Masri. The issues are whether the prosecution has proved there was no reasonable cause for the demand and whether threats were made.
In essence, the defence case was not that there was such a debt but that:
(i) there was (the prosecution could not exclude beyond reasonable doubt) reasonable cause for the demand because the accused believed the complainant had stolen from Masri and owed him $50,000 or more and was authorised to demand payment; alternatively, the accused honestly and reasonably believed there was a debt and so, in either case, there was reasonable cause for the accused to make the demand, even if made with threats;
(ii)no threats were made as alleged.
In light of the cases considered below, the provisions of Chapter 5 – Criminal Responsibility of the Code and the terms of Code s. 415, I consider the alternative formulation of the defence case with respect to reasonable cause is the more appropriate. That is, if, viewed objectively, there is no reasonable cause for the demand because there is no admissible evidence of the alleged debt, the accused’s belief becomes relevant by way of Code s. 24.
“Without reasonable cause”
The accused submits the question of reasonable cause relates to the demand, not the threat. That is, if there is reasonable cause for the demand - for example, there is a debt – it is not an offence (against Code s. 415) to demand it with threats to cause a detriment.[2] For the reasons set out below, I do not accept that submission. In my view, a jury should be instructed, where the issue arises, that the assessment of whether reasonable cause for the demand has been excluded involves an examination of all of the circumstances of the making of the demand including whether it was made with threats and the nature of the threats.
[2]Alternative offences canvassed during submissions included Assault, perhaps Public Nuisance or Code s. 359 Threats. I doubt that section provides a proper fit for the circumstances alleged. The question, in any case, is whether the prosecution has made out a case under s. 415.
The suggested direction in the Supreme and District Court Benchbook 109A.1 comes with the following footnote to the third element – that the demand was made without reasonable cause:
“The defence, formerly expressed as “reasonable and probable cause” relates to the justification of such a claim, rather than to the appropriateness of offering violence to recover a civil debt: per Dowsett J in Kelly, Baker and Perry [1991] CCA 198, CA 144, 147 and 155 of 1991, 24.8.91. In Campbell [1997] QCA 127, CA 379 of 1996, 16 May 1997, the court, observing that “probable” did not seem to add anything, went on: “….it seems that there cannot be reasonable and probable cause to make a demand ‘containing threats of injury or detriment’ which would involve the commission of a criminal offence”. Perhaps the phrase requires some reasonable and just grounds for making the demand (Reg v Miard 1 Cox CC 22 at 24), such as furtherance or promotion of the lawful interests of the accused (Thorne v Motor Trade Association [1937] AC 797). There may be evidence that the defendant was acting pursuant to an honest and reasonable belief as to a state of things: s 24; see the obiter remarks as to a s 24 defence in Campbell.”
The suggested directions conclude:
“It is not for the defendant to prove that he acted with reasonable cause; it is for the prosecution to prove he did not.”
This direction is drawn from the reasons of Dunn J. in R vJohnson and Edwards [1981] Qd R 440 at 446.E:
“It was not and could not be suggested by the appellants that they had reasonable cause for demanding money from [the complainant]. They denied that there was any demand. (In my opinion, it is for the defence to raise the question whether there is a reasonable or probable cause making a demand; once it is made an issue, it is for the prosecution to negative the existence of such cause.)”
Early English cases support the view that the question of reasonable cause relates to the demand, not the threat and that the accused person’s belief that there is reasonable cause is irrelevant.
In R v Dymond [1920] 2 KB 260, the accused claimed to have been indecently assaulted by the complainant. She wrote a letter demanding money and an apology, with the threat that she would tell everyone in the town of his actions. It was no defence to the charge of uttering a letter demanding money with menaces and without reasonable and probable cause to prove she believed the assault gave her reasonable and probable cause to make the demand.
Reading the judgment of the Court of Criminal Appeal, Earl of Reading CJ referred to Reg. v Hamilton 1 C. & K. 212, where Rolfe B. decided the words “without any reasonable or probable cause” in the relevant statute “applied to the money demanded and not to the accusation constituting the threat”.[3]
[3][1920] 2 KB 260 at 265.
On that point, Hamilton was also followed in R v Craig (1903) 29 VLR 28.
In Craig, the accused had, as a younger man, sent advances of money to his father. He was aged 43 at trial. He wrote to his father demanding 10l. The issue was whether he had reasonable cause for the demand.
The jury asked, “If the jury agree that the accused considered he had a claim for money against his father, must a verdict of not guilty be brought in?”[4]
[4](1903) 29 VR 28 at 29.
The trial judge answered, “No.” and told the jury the question was whether in their opinion, and not in the opinion of the prisoner, there was reasonable and probable cause for making the claim.[5]
[5]Ibid.
The Full Court confirmed the conviction.
In R v Campbell [1997] QCA 127, the appellant wrote to the complainant demanding $40,000 for the return of the complainant’s property (guns which the appellant and another, Robertson, had taken from a storage facility). The appellant gave evidence that he was helping Robertson, whom the complainant owed $20,000. The trial judge directed the jury that the test of reasonable and probable cause was objective – what a reasonable person would consider as reasonable or probable. At trial, the prosecutor sought a re-direction which would make clear that all the circumstances of the demand should be considered, including the accompanying threats. The trial judge declined to re-direct “on the basis that what the prosecution sought had been made clear to the jury and was not disputed” by the defence.[6]
[6][1997] QCA 127 at 5.
In joint reasons, the court – Fitzgerald P, Davies and McPherson JJA – said:
“While the issue of “reasonable and probable cause” is not without potential difficulty, the problems which could arise need not be discussed in detail on this occasion. It is not obvious that the word “probable” adds to the phrase. Further, it seems that there cannot be reasonable and probable cause to make a demand “containing threats of injury or detriment” which would involve the commission of a criminal offence. And at common law, an honest belief by an accused that the demand was made with reasonable and probable cause might not suffice.[7] If s. 24 of the Code introduces a subjective element into an alleged offence against sub-s. 415(1)(a), a submission which was not directly advanced either at trial or in this Court and need not be decided on this occasion, the belief must not only be honest but reasonable; the requirements of reasonable and probable cause and honest and reasonable belief therefore both involve an objective standard, viz., reasonableness.”[8]
[7]Referring to R vDymond [1920] 2 KB 260. Other references omitted.
[8][1997] QCA 127 at 5.
The footnote to the statement which I have placed in italics reads: Hardie & Lane Ltd v. Chilton [1928] 2 K.B. 306; cf. Kelly, Baker and Perry [Nos. 144, 155 and 147 of 1991, unreported, 29 August 1991] per Dowsett J.
In Hardie and Lane, the Motor Trade Association, in pursuit of the interests of its members, had the power to place on a ‘stop list’ agents who sold cars other than at the listed price. Earlier decisions of the Court of Appeal and House of Lords had upheld the legality of this system. Sometimes, the association offered not to place the offender on the stop list in return for payment of a sum of money and a published apology. It was accepted that the alternative was a more lenient outcome than being placed on the stop list.
This was not a criminal case. The plaintiffs sued officers of the Association alleging conspiracy to obtain money under duress, alternatively for money had and received. As it was lawful in the circumstances for the Association to place a trader on the stop list, it was not unlawful to say it would do so and it was not unlawful to say it would not do so on condition that the trader did something that was not illegal.[9] Scrutton LJ held there was no conspiracy, “there being neither unlawful end nor unlawful means, and there being therefore no evidence of lack of reasonable and probable cause for the demand.”[10]
[9][1928] 2 K.B. 306 at 315.
[10][1928] 2 K.B. 306 at 318.
Referring to s. 29 of the Larceny Act 1916 (UK), which created the offence of uttering, knowing its contents, a letter demanding of any person, with menaces and without reasonable and probable cause, any property, Sankey LJ said, “That section clearly contemplates that there may be cases where there may be reasonable and probable cause for uttering a letter with menaces.”[11] Sankey LJ gave the example of a letter of demand for the payment of a debt with a threat of legal action.[12]
[11][1928] 2 K.B. 306 at 328.
[12]Ibid.
The statement in italics, I respectfully suggest, accurately represents the law and Dowsett J said nothing different in Kelly, Baker and Perry [Nos. 144, 155 and 147 of 1991, unreported, 29 August 1991]. The trial judge in that case directed the jury:[13]
[13]Kelly, Baker and Perry [Nos. 144, 155 and 147 of 1991, unreported, 29 August 1991] at 2.
“The test in each case is not what the accused himself thought but what a reasonable right thinking person would consider was probable or reasonable.”
and:
“The question that arises is, are the demands which accompanied the threat here shown by the Crown to be without reasonable or probable cause by the situation which obtains? The test is what a reasonable right thinking man would do in those circumstances.”
Dowsett J’s remarks were focussed on the law’s disapproval of “self-help” or vigilante action and reflect a concern that a jury should not be invited to consider that violence might be reasonable in any circumstances. Before making the statement extracted in the Benchbook his Honour said,
“Even in the furthest ridings of North Queensland, I do not think that self-help can now be re-established as an appropriate method of forcing alleged debts or recovery of allegedly stolen property.”[14]
[14]Kelly, Baker and Perry [Nos. 144, 155 and 147 of 1991, unreported, 29 August 1991] at 5.
Mr Holt submits the proposition in italics, being drawn from a case whether there was no independent cause for the demand, is not of general application. Where there is a debt or a belief in a debt, the ‘quintessential demand’ has a reasonable cause and if there is any other criminal conduct, then it ought to be dealt with as separate criminal conduct.
The statement made in R v Campbell informed the trial judge’s directions in R v Lacey & Lacey [2011] QCA 386. The appellants were convicted, among other things, of extortion. Although the relevant events occurred in 2007, and so the charge was in a slightly different form, the difference is of no relevance. The prosecution case was that after assaulting the complainant with baseball bats, the context being an allegation that he had stolen drugs, the appellants took him to a car and demanded he pay them back $13,000. The issues taken on appeal with respect to the extortion charges did not challenge the trial judge’s directions on reasonable and probable cause. The judge had given the jury written instructions as follows:[15]
[15][2011] QCA 386 at [97].
“COUNT 2 – EXTORTION
The prosecution must prove that:
1. The defendant intended to extort a sum of money from Owen Matthews.
2. The defendant orally demanded the sum of money.
3. The demand threatened injury to be caused to Owen Matthews by the defendants if the demand is not complied with.
4. The demand was without reasonable or probable cause.
- It is not for the defendant to prove that he acted with reasonable and probable cause, it is for the prosecution to prove he did not.
- There cannot be a reasonable and probable cause to make a demand containing threats of injury or detriment which would involve the commission of a criminal offence.
All four elements must be proved by the prosecution, and must be proved beyond reasonable doubt.”
In R vRobertson [1993] QCA 514, it was common ground before the Court of Appeal that the appellant’s acquittal of the charge of extortion was due to:
“the favourable direction on this count given by the learned trial judge …. if the jury found the appellant to have had a reasonable or probable cause for making the demand, the offence of extortion could not be made out, notwithstanding that a threat of force was used to make the demand.”[16]
[16][1993] QCA 514 at 5.
Mr Holt submits, accurately, that the Court “did not need to resolve” the question whether the direction was unduly favourable.
Mr Holt also refers to a passage from Lord Atkin in Thorne v Motor Trade Association [1937] AC 797 at 806 – 807 in support of his argument that the question of reasonable cause applies only to the demand and not the threat. Lord Atkin considered the Motor Association’s letter to an offender, announcing that he would be placed on the stop list but not if he pays a sum of money, could amount to a menace. It did not matter that the threat was to do something the actor had a right to do – “the ordinary blackmailer normally threatens to so what he has a perfect right to do”. In this context Lord Atkin said,
“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.”
In my opinion, the formulation in Campbell is the basis for the proper direction to the jury, if it be necessary in a particular case: that whether there is (no) reasonable cause for a demand may be assessed with reference to the nature of the threat the demand is coupled with.[17] I would put it, as I have already suggested, that a proper assessment as to whether the prosecution has proved there is no reasonable cause for the demand involves examining all its circumstances including the nature of any threats made.
Was there (no) reasonable cause based on belief in a debt?
[17]It is interesting to notice that the offences contained in sections 29 - 31 of the Larceny Act 1916 were replaced by a single offence, namely, the making of any unwarranted demand with menaces for gain or to cause loss. The Theft Act 1968 (UK), section 21(1):
(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief –
a)That he has reasonable grounds for making the demand; and
b)That the use of the menaces is a proper means of reinforcing the demand.
Was there a debt?
The only evidence as to whether there was in fact a debt in the order of $50,000 owed by the complainant to Masri came from the complainant. It was that there was no such debt.
The complainant said that in 2013 he agreed to a partnership in a fruit and vegetable store that Masri owned at Carindale. The complainant commenced work in Carindale in January 2013. From there he moved to a different shop at Helensvale, but came back to Carindale.
At some point, he and Masri became business partners. The original deal was that he would get $4000 a week for conducting the store, but he said he was never paid that much. He and Masri agreed on $2500 a week for the first month and then the complainant was to receive $4000. He did this for about 10 days, but Masri did not pay him.
The complainant recalled being paid something like $3000 in cash. This was at the Carindale store, where the complainant was the manager. At the Helensvale store he was not the manager. He worked at Helensvale until the beginning of April.
Back at Carindale, he described the arrangement with Masri as being “profit partners in the project” but he had also stated to Masri that he would require “X amount of dollars” every week.
This partnership began at the beginning of May 2013. The complainant said he worked until about the end of August 2013 running the store.
After a few weeks, he spoke to Masri about the fact that he was not getting paid. He said Masri replied that they were profit partners. The complainant told Masri he needed “X amount.” Masri said the complainant knew the shop was not making any money.
The complainant’s evidence was that he did not receive wages until about 12 or 13 weeks into the arrangement. He and Masri argued over money. Finally, Masri paid the complainant $1300 or $1350 a week. The complainant explained that he was allowed to pay himself from the takings.
The complainant also gave evidence that during the period he was working at Carindale, he took fruit from the store. He considered he had a right to do this as he was a partner. He used the fruit in his family owned café in George Street, Brisbane. He said he was taking that in lieu of pay. He said he would take $300 - $400 value of fruit per week. The complainant said he would give Masri a list whenever he took fruit. Eventually the complainant told Masri the whole arrangement was not working and he had to go back to his café.
Under cross-examination the complainant clarified that he first worked with Masri at Carindale, commencing in January 2013. He was to be managing the whole shop. That only continued for two weeks.
He agreed that he was working not as a manager, but stacking shelves in the shop owned by Masri in April 2014 at Carindale. The complainant said he was being paid $2500 a week over a month in that position. Then came the period from May 2013 when the complainant was a profit partner at Carindale. The complainant agreed he had not paid anything to become a profit partner, nor put any capital into the shop. Asked whether he ever looked at the books of the shop, he answered that he did not believe there were any books. He agreed that there was no written agreement and he agreed that he was not carrying financial risk.
The complainant’s evidence was that he expected to be paid $2500 plus his half profit share. He agreed that the time came when he was taking $1300 a week from the till, but insisted that he had Masri’s authority to do that. This money was taken from the takings, in the same way he would pay other employees. The complainant conceded he did not complete paperwork with respect to those wages and ultimately conceded he did not declare the $1300 a week income.
The complainant confirmed under cross-examination that he took fruit and vegetables for the purposes of his café from the Carindale shop on the basis that he believed he was entitled to. When he was challenged, on the basis that he had not paid for the fruit, he responded “but he didn’t pay me.” He kept no record, thinking it would not be an issue, “as the amount of stock that was being taken, as opposed to what I was being owed, outweighed it so much that it wasn’t an issue.”[18]
[18]Transcript of Proceedings: Day One, 1-54.20 – 21.
The complainant gave evidence that at the time he concluded working with Masri, he did not owe Masri anything. He agreed however that he had said in his police statement “when I left this agreement I owed roughly $300 a week for food for 12 weeks. However I had not been paid for 15 weeks, the pay being $2500 a week.”[19]
[19]Transcript of Proceedings: Day One, 1-55.1-3.
It was put to the complainant in cross-examination that the accused said to him during their meeting on 12 March 2014 that the complainant had been taking money from the business. The complainant rejected that.
Masri was not a witness at the trial. There was no evidence to contradict the complainant’s evidence, consistent with his police statement, that any amount he took in stock was far outweighed by unpaid salary. The accused’s evidence that Masri told him of a debt and that he believed Masri, is not evidence in proof of the existence of a debt. Subject to the claim of an honest and reasonable but mistaken belief, there is, therefore, no evidence of reasonable cause for the demand.
Section 24 of the Criminal Code provides:
“(1)A person who does or omits to do an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
(2)The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”
It was not submitted by the prosecution that the operation of s. 24 was excluded.
The mistake must be honest and reasonable. To be reasonable, the belief must be held by the accused, in his particular circumstances, on reasonable grounds.
An honest belief in the existence of a state of things.
I allow the real possibility that the accused believed in the debt but I am satisfied beyond reasonable doubt that any such belief was not reasonable in all the circumstances.
The accused gave evidence that he had known Masri for most of his life. They had always maintained a friendship. There was a period of time where he did not see Masri for a number of years after high school. They rekindled their friendship about seven or eight years ago. He knew that Masri had worked most of his life in fruit and vegetable selling. The accused’s younger brother had worked with Masri at the Gold Coast fruit shop. The accused was aware that Masri had a Helensvale fruit shop and one at Carindale and said there were also others that Masri owned.
The accused had not met the complainant in person before 12 March 2014 when he met him at Courtyard Palms Café in George Street, Brisbane.
The accused’s brother, who had worked with Masri, told the accused of an incident where the complainant – whom the accused referred to as Billy – caused upset by approaching girls who worked at the fruit shop suggesting he would pay them for sex. This was referred to as the ‘sugar daddy incident’.
The accused said he had two other friends who also worked with Masri. They would tell him that the complainant “used to take all of this fruit and veg out the back and he was, you know, there was funny dealings with the tills and the way things was happening with the money but they didn’t know that things were fishy”.[20]
[20]Transcript of Proceedings: Day Two, 2-16.16-18.
The accused spoke of an argument that his brother had had with the complainant.
The accused’s evidence included that Masri told him there was footage of the complainant taking money from the till. The accused did not see the footage. Masri talked in number above $70,000, even “100 grand.”[21] Masri was planning to move overseas so the accused offered to help him get the money back.
[21]Transcript of Proceedings: Day Two, 2-18.8.
Asked during examination-in-chief whether at any stage he had any doubt about whether the debt was in fact owed, the accused replied “no”. In fact, the accused said he still thought there was a debt owing. This was “because of the fact that he did steal and there was multiple people that told me he did. Not just Yousef (Masri), but my brother is someone I trust with everything in my life.”[22]
[22]Transcript of Proceedings: Day Two, 2-31.36 – 38.
Mr Holt referred, in support of finding that the accused honestly believed the complainant had stolen from Masri, to various statements made by the accused which can be heard in recorded telephone conversations. For example, the accused can be heard to tell Conias, “just at the end of the day man, when someone steals from someone else, it’s got to get paid back.”
I am not persuaded by this kind of evidence. I have listened during the trial and again since to all of the recorded conversations. I am not satisfied that the fact that assertions are made - between the accused and Masri or the accused and the complainant or the accused and Conias - makes more likely the truth of anything asserted.
Another example relied on by Mr Holt is where the accused is heard to say to Conias, “I will say this to you man, that the amount that we’ve told Bill is a generous amount, if you wanna get into the middle of all this and find out exactly how much he owes, I guarantee you it’s gonna be a lot more than that”.
As I have said, I allow the likelihood that the accused believed in the debt but his statements and exhortations to others do not make it more likely he believed in the debt.
Was there a belief held on reasonable grounds?
The information relied on as a basis for the belief came, the accused said, from Masri, two friends and his brother. None of these was a witness in the trial. I have listened to recordings of Masri on the telephone to the accused. His demeanour ranges from sounding reasonably normal to incomprehensibly hysterical.
Mr Holt refers also to statements by the complainant to the accused as fortifying the accused’s belief. An example is the complainant telling the accused he wanted to apologise to Masri. Upon a reading of the relevant passage from cross-examination of the complainant I think the evidence does not contribute to reasonable grounds for a belief the complainant had stolen from Masri and owed $50,000 or more:
“And do you remember him saying to you words to the effect of, “It was better to deal with the situation by agreement between the two of you, rather than involving the police?” ---He did say that.
Now, at the time of the negotiation phase I suggest that you told Mr Succarieh that you wanted to apologise to Yousef Masri for what you had done? ---I said – no. I said I wanted to apologise to Mr Masri, yes.
That’s I think what I just said. So let’s be clear - - - ? ---No. You added a bit more to it.
All right. Well, I’m going to say what I said - - - ? ---Okay.
- - - and let’s see whether you agree or not. I’ll break it down. You agree with me that in this meeting with Mr Succarieh you said that you wanted to apologise to Mr Masri? ---That’s right.
And that was in the context of Mr Succarieh saying to you that you had, at least on your account, been stealing fruit from Mr Masri? ---I wasn’t stealing.
That was in the context - - - ? ---Okay.
- - - where, at least on your account, Mr Succarieh had been accusing you of that? ---Yes. Yes.
Yes. And you then say to Mr Succarieh, “I want to apologise to Mr Masri”? ---That’s right.
And you said, “I want to apologise to him for what I’ve done”? ---I didn’t say that.
I see. So what did you – well, firstly, what did you say to Mr Succarieh you wanted to - - - ? ---I told him I wanted to - - -
Just wait, please? ---Well, you just asked me a question.
I hadn’t finished? ---All right.
We have a transcript that’s going to read terribly if we talk over each other. What did you say to Mr Succarieh that you were apologising for? ---I didn’t tell him what I was going to apologise for. I wanted a face-to-face with Yousef Masri.”[23]
[23]Transcript of Proceedings: Day One, 1-60.17 – 1-61.10.
As the complainant said, he wished to meet Masri personally. In the circumstances of the conversation the statement of desire to speak to Masri and apologise did not provide reasonable grounds for the relevant belief.
Mr Holt also relies on extracts from the recorded telephone calls where the complainant tells the accused he wants to speak to Masri himself and have a chat and express his regrets and apologise. Once it is understood that the context is that the accused is blocking attempts by the complainant and Conias to meet Masri in person, the expression of intention to apologise cannot reasonably amount to a confession of the debt by the complainant. It cannot contribute to reasonable grounds for a belief that the debt of $50,000 is real.
Likewise, if the complainant told the accused he was desperate (which the complainant denies) it gives rise to the inference that the plaintiff paid himself and took fruit and vegetables because he was otherwise not being paid as agreed. It is unnecessary to decide whether the complainant used the word ‘desperate’ but this provides an example of what happens in conversations between people sometimes, where each experiences the dialogue from his/her own position and hears what he/she is listening for.
The accused may be heard on the telephone telling Conias,
“We have people that worked with him in the shop witnessing him taking the stuff without putting money in the tills. Yesterday when I talked to him about this he lied through his teeth telling me he put money in the tills until in the end he confessed that he didn’t.”
If this is meant to be an assertion that the complainant admitted stealing it is not clear. It is more consistent with an admission that the complainant took produce without paying for it, which is not in dispute and does not provide or contribute to reasonable grounds for the relevant belief.
Conias told the accused the complainant was in severe financial difficulties. The complainant explained that what Conias said was not true but was designed to persuade the accused not to pursue the complainant for money. So much is the obvious inference even without the explanation from the witness. The recorded conversations are replete with assertions of no value; self-serving statements and hollow banter. Relevantly, statements made by Conias to the accused, on the telephone in March 2014 about the complainant’s financial position do not support a belief that, at some between January and May 2013 the complainant was desperate and stole $50,000 or more from Masri.
Allowing for the likelihood that the accused believed the complainant owed Masri more than $50,000, I am satisfied the prosecution has excluded the operation of s.24 because the any such belief was not held on reasonable grounds. In the result, leaving aside the question of threats made, I am satisfied beyond reasonable doubt that there was no reasonable cause for the demand made by the accused that the complainant pay $50,000 to him for Masri.
Assuming I am wrong about that finding, s. 24 provides that the accused is no more criminally responsible for an act done under the mistaken apprehension than if the real state of things were as he believed. Assume then that the complainant owed Masri more than $50,000 and Masri asked the accused to demand payment. It seems to me there is still another question – whether in the situation there is reasonable cause to demand payment of the debt. One answer might be, “No. But no offence is committed unless the other elements of s. 415 are present.” This was not argued by the prosecution and it is not necessary to consider it further. But on one view of it, the relevant mistake is not as to the existence of a debt but as to the existence of reasonable cause for making the demand. And this belief would be no more relevant to whether there was reasonable cause for the demand than the belief of the offender in Dymond.
The demand
The following facts, which I accept, are drawn from the uncontested facts, complainant’s evidence, the accused’s evidence and the recorded telephone calls.
The complainant ran a café on George Street Brisbane. There was outdoor seating on the footpath. On Tuesday 11 March 2014, he received a phone call. The caller described himself as a friend of a friend, saying he wanted to come and see the complainant. This was agreed. The accused was the caller. He said, “When I meet you, I’ll talk to you about things.”[24]
[24]Transcript of Proceedings: Day Two, 2-18.43- 44.
The next day, the accused called the complainant late morning saying he was looking for the place. They met up outside the café. They had not met before. They sat at an outside table. The complainant describe the accused as “not overly tall, overweight, really big arms, big beard, and he was carrying a black zip-up type folder.”[25]
[25]Transcript of Proceedings: Day One, 1-33.7-8.
The accused did not give his name. In evidence he said, “If I was going to meet up with him, I was just going to be a general Joe Blow, someone that may be friends with a friend.”[26]
[26]Transcript of Proceedings: Day Two, 2-19.21.
The accused employed a careful plan of approach.
The complainant thought the visitor was interested in buying the café. He asked was the accused there about the café and the accused replied, “Yes. Tell me about the café.”[27] The complainant told the accused about the business, admittedly exaggerating the takings and profit because he thought he was speaking to a potential purchaser. He was disconcerted then, when the accused began to ask whether he was a gambler, whether he took drugs “or stuff like that.”[28]
[27]Transcript of Proceedings: Day One, 1-33.19.
[28]Transcript of Proceedings: Day One, 1-33.35.
The accused gave evidence consistent with the complainant’s but revealed his approach. When the complainant thought he was a potential buyer he, “thought this would be a good opportunity to try to use that to assess his situation best.”[29] If the complainant thought the accused was a buyer, “he would be honest with me, he’d be straightforward and would tell me his financial situation more accurately rather than if I approached him by saying that he owed someone money he stole from them.”[30]
[29]Transcript of Proceedings: Day Two, 2-20.32.
[30]Transcript of Proceedings: Day Two, 2-20.36-38.
Once the accused had established the complainant had money, he asked about gambling, alcohol and drug addiction. The complainant’s expression “seemed to change a lot at that point, his facial expressions. I think it was a very confused - -”[31]
[31]Transcript of Proceedings: Day Two, 2-22.3 -4.
The accused then told the complainant he was there because the complainant owed someone $50,000.
The witnesses’ accounts differ as to whether the accused told the complainant he had stolen the money. The complainant said the accused did not, but only said, “I’m going to tell you why I’m here. You owe someone $50,000 and I’m here to collect.”[32]
[32]Transcript of Proceedings: Day One, 1-33.36 – 37.
The accused gave evidence that he told the complainant, “I’m going to tell you the truth. I’m not actually here for the shop. I’m not a buyer. I’m only here – I’m here because you stole money from someone. You owe someone money. And I’m here to work out a way to negotiate – see how we can get that money back.”[33] The accused also said, “we need to work out a way for you to pay this money back.”[34]
[33]Transcript of Proceedings: Day Two, 2-22.17-21.
[34]Transcript of Proceedings: Day Two, 2.22.17-21.
I think it is unnecessary to adopt one version over the other. The differences are largely about language used. There is no doubt the complainant was met by a stranger who, without identifying himself, obtained details of the complainant’s financial circumstances then made very personal inquiries followed by the allegation of a very substantial debt to an unnamed person and requiring an immediate response.
Masri’s name was then mentioned as the creditor, though the witnesses disagree about who named him. The complainant denied owing anyone $50,000.
The accused gave evidence the complainant said that he had been desperate:
“I said I’m going to be one hundred percent honest with you. I need you to be one hundred percent honest with me as well. You know, don’t bullshit me. Don’t lie to me. Let’s just be honest with each other, you know. I need to understand why you would steal from Yousef? I actually said that to him as well. I said why did you steal from – why did you need to steal – and that’s how – that’s why he said I was desperate. I needed a way out. Because I didn’t understand, if he didn’t have those addictions why did he need to steal?”[35]
[35]Transcript of Proceedings: Day Two, 2-23.4-10.
At this stage, the accused said, he also asked the complainant about “the sugar daddy incident” and told the complainant that he thought that was disgusting.[36] Although the complainant denied this was discussed, I think it likely it was. The use of such a tactic - the allegation itself and the demonstration that he had background personal information - would unsettle the complainant.
[36]Transcript of Proceedings: Day Two, 2-23.25, 2-23.32.
The accused gave evidence that the two of them “started working towards a negotiation phase, I guess, if you want to call it that.”[37] The accused told the complainant it would be better for them to deal with the matter rather than going to the police.
[37]Transcript of Proceedings: Day Two, 2.23-43-44.
The complainant protested that he did not have the money to pay any such debt. The complainant said that he wished to talk to Masri. The accused said “Yousef doesn’t want to talk to you. Tell me how – you know, tell me how you’re going to pay this debt.”[38] I accept this evidence from the complainant because it is consistent with recorded statements made by the accused designed to prevent him and Conias speaking to Masri.
[38]Transcript of Proceedings: Day One, 1-34.3-4.
The accused then made a statement to the effect that he would go inside the café and talk to the complainant’s daughter about the financial circumstances. The complainant told him he could not do that.
The accused’s evidence on this point was that he became upset with the complainant when the complainant said the shop did not even belong to him. His evidence included the following:
“To be honest with you, I got upset at that point. I said, look, we just talked about saying that we’re going to be honest with each other. You’re not being honest with me. You’re starting to bullshit me again. You know, you’ve got to stop bullshitting me.”[39]
[39]Transcript of Proceedings: Day Two. 2-24.17-20.
With respect to speaking to the complainant’s daughter, the accused gave evidence:
“I just said how about I ask your daughter then? and then he said, no, please, just leave them out of this, I said, ok, well, I will leave them out of this, I said, but you’ve just got to be honest with me. Start telling me the truth then.”[40]
[40]Transcript of Proceedings: Day Two, 2-24.33-35.
At some point the accused told the complainant that although the debt was $50,000, the creditor would accept $40,000 in immediate cash. The complainant told the accused he might be able to come up with $10,000. The accused doubted that Masri would accept that and enquired how the complainant would pay off the rest, asking whether he could pay $2,000 a week. The complainant offered $100 a week. The accused said, “Don’t muck me around, because I’m fair dinkum.”[41] The meeting ended with the arrangement that the complainant would pay $10,000 immediately and thereafter $1,000 per week. His understanding was that if he missed a payment the debt would go back up to $50,000 and start again. His evidence was, “If I didn’t pay, he’d come after me and break my legs.”[42]
[41]Transcript of Proceedings: Day One, 1-34.18.
[42]Transcript of Proceedings: Day One, 1-34.25.
The accused confirmed that he told the complainant that an immediate payment of $40,000 would clear the debt. His account of the final arrangement was, like the complainant’s, that $10,000 would be paid and then for the next 40 weeks he would pay $1,000 a week. The accused said in evidence, “I said to him if you miss payments, if you don’t pay on time, it’s always going to remain at $50,000.”[43]
[43]Transcript of Proceedings: Day Two, 2-26.33-35.
As well as the physical threat, and the alleged threat to involve the complainant’s family, the complainant said that the accused threatened to take over the shop. Without a strong memory of their conversation the complainant said, “I believe it all came down to do with if I didn’t pay or if I didn’t give him any money or if there was no money forthcoming tomorrow or the next day, that they would just walk in and take over the shop.”[44]
[44]Transcript of Proceedings: Day One, 1-35.9 – 12.
The threat to simply come and take over the shop was made earlier in the discussion, before the offer to pay $10,000.
During a recorded telephone conversation between Masri and the accused on 25 March 2014 commencing 9.49am, the accused is heard to say to Masri “the funny thing is I - - said that to him. I said, yeah, I said, what I might do, we’re gonna come and see your books and we’re gonna take over for a few weeks.”
The accused, it is clear from his evidence, interpreted the complainant’s agreement to pay $10,000 as a confession that he had stolen money. But, as I have earlier said, there is no clear evidence of a confession or admission of the debt. It is more likely, as the complainant said, he merely said he would pay some money because he was scared.
The accused asked the complainant whether he should write up a contract but the complainant gave him his word and the two departed.
The prosecution called two police officers, one a federal agent, who were sitting near the accused and the complainant. One recorded the conversation. The witnesses added little but confirmed that the accused and complainant met for about 27 minutes. The officer operating the recorder heard mention of $50,000, a father-in-law and the complainant saying he did not own a car. She heard the complainant denying he owed money and the accused saying, “Sop bullshitting me”. Neither officer heard a threat to break legs.
At this point, on the prosecution case, the offence is actually complete. The indictment is drawn between 10 March and 26 March 2014. The later discussions that can be heard between various parties in the telephone recordings are relied on both to give meaning to what occurred during the conversation at the café and provide evidence of the continuing threats and demand. I will detail some of the phone call transcripts below, but it is useful to state my conclusions now.
Given the matters discussed and all of the circumstances, I accept the complainant’s evidence that he was frightened as a result of the meeting. I accept that he feared for his family and feared “they [were] just going to walk in and cause a ruckus, you know, hurt my family, hurt me, I – as I was petrified.”[45]
[45]Transcript of Proceedings: Day One, 1-35.21-22.
The circumstances of the discussion – the demand - were designed to intimidate the complainant. The accused admitted insisting on the complainant being honest with him. The repeated exhortations, from a stranger who never gave his name, to be honest, to fully disclose his financial situation - with the suggestion that the accused would speak to the complainant’s daughter as a sanction against the complainant should he not be straightforward and honest with the accused – were all designed to threaten the complainant .
If the threat to speak to the daughter were the only threat relied on by the prosecution the case might not succeed. It is not clear, in terms of s. 415, with what detriment the complainant was being threatened.
I find the accused did threaten to come in with associates and take over the café, even if temporarily. This was a clear threat of a detriment.
The making of these threats, taken with all of the circumstances of the conversation, make more likely the truthfulness of the complainant’s evidence to the effect that he was threatened with his legs being broken. His evidence included: “He said if I miss a payment, it goes back to $50,000. If you don’t pay, then I’ll break your legs.”[46] The complainant agreed that this was said at the end of their conversation.
[46]Transcript of Proceedings: Day One, 1-61.38-39.
The accused denied making that threat but his evidence included, as I have already noted: “I said to him if you miss payments, if you don’t pay on time, it’s always going to remain at $50,000.”[47]
[47]Transcript of Proceedings: Day Two, 2-26.34-35.
I accept the complainant’s evidence on this point despite the accused’s sworn denial.
In summary, the accused, in the circumstances outlined, demanded payment of $40,000 immediately or an agreed plan to pay $50,000 using intimidating techniques and threatening unlawful consequences. There was no reasonable cause for such a demand.
After the meeting – selected pieces from the phone recordings
Having said he would pay $10,000, the complainant contacted “a distant sort of relative” named Conias, who was known as Mitch. He explained his problem to Conias who said he was a mate of Masri and agreed to help him. The pair planned to meet Masri personally.
The recorded calls of 13 March 2014 commence soon after noon. The first includes Masri explaining to the accused that Conias proposed meeting Masri at 7.30 that evening at a particular restaurant. The two discuss going to the meeting. The accused comments: “To be honest, I’m probably gonna annihilate him, hey. We’ve already got the freakin’ agreement, bro, and if he can’t stick to his agreement, he’s freakin’ he’s already stuffed it up.”[48]
[48]MFI A: Volume of Transcripts at 4.5-4.9.
Mr Lehane relies on the statement as confirmation of the accused’s violent propensity towards the complainant and so the likelihood that he made the threats alleged. Mr Holt points out that the statement was made after Masri told the accused he would wait outside the restaurant, “and if something stupid happens - - ”, so the statement is about defending any attack. As I have said, care must be taken in relying on assertions made in the recorded discussions. Yet, if the passage does not prove the accused would actually use violence it suggests he is quick to speak of using it.
Masri asks the accused to contact Conias to say he, the accused, will meet Conias.
During the call the accused then makes to Conias, Conias explains he will be lending the complainant the money because the complainant has none. (Again, this is not relied on for its truth.) The accused makes plain only he will attend any meeting.
The accused declines to give his name to Conias on the first phone call recorded between them. The pair negotiate an earlier meeting time.
In a call just after 1 pm, the accused explains to Masri that having Conias involved changes things: “he’s gonna be a different sort of category now. Like, this guy, he’s gonna freakin’ wanna know, he basically he … wants to find out why it’s, it’s come to that amount.”[49]
[49]MFI A: Volume of Transcripts at 13.20 – 13.24.
During a call between the complainant and the accused, one can hear Conias in the background saying he will only give money to Yusef (Masri). The accused makes plain that he, not Masri, is dealing with the matter and that he alone has an agreement with the complainant. The accused says: “I think the best thing to do is, to pay the money, yeah, and when you finish paying the money in full, then you can, you’re more than welcome to call up and apologise for the actions that you, you done.”[50]
[50]MFI A: Volume of Transcripts at 21.36 – 21.39.
These statements seem designed to isolate the complainant and are more consistent with extortion than negotiated debt collecting.
The accused then rings Conias asking why he persists in wanting to meet Masri. Conias asks who the money is owed to. The accused replies that it does not matter “who it’s owed to now”, that he is the one looking after it. Conias makes an elaborate explanation about how the complainant can pay a certain amount and then make arrangements but only after talking to Masri. The accused agrees to speak to Masri.[51]
[51]MFI A: Volume of Transcripts at 23 – 26.
In the next recorded call, the accused explains the situation to Masri who promptly suggests a meeting at Helensvale. Then Masri and the accused agree to meet at 4.30 “at the shop”.
The accused next speaks to Masri. Among other things, the accused suggests that Masri call Conias and tell him he (Masri) will not be meeting Conias but that he should speak to the accused and give him the money.
There is then the recording of a call which obviously follows a discussion between Masri and Conias. Masri reports, in a very highly agitated voice, what he told Conias. This included, in a reference to the complainant,
“The guy friggin’ left me with a $100,000 [Indistinct] dollar, and every time he served a customer, he friggin’ put the ah money, ah pocketed the money in his pocket. Do you think I’m stupid? I said, I seen everything on the cameras. I said, he’s a dead man anyway. Very simple.”[52]
[52]MFI A: Volume of Transcripts at 33.39 – 33.43.
In this call Masri reports to the accused that he told Conias, “the money’s gotta be paid whether he likes it or not. I don’t want the money. If he doesn’t wanna pay, does, does he wanna pay the money? I said, while I’m sittin’ overseas, he can sit there and have a very nice time paying the money, ‘cause I’m leaving this stupid country anyway. Fuck you. I don’t want the money. He goes, no, no, you’ll get the money.”[53]
[53]MFI A: Volume of Transcripts at 33. 57 - 34.5.
At 3.05 pm, the accused speaks to the complainant and explains that Masri will not meet at Helensvale. Only the accused is to deal with the complainant and/or Conias. The accused expresses his upset at the complications created by Conias’ involvement. The complainant speaks of wanting to be able to still speak to Masri in the future and showing he has “done the right thing to him in giving back.”[54]
[54]MFI A: Volume of Transcripts at 38.56 – 38.57.
About 20 minutes later, at 3.22 pm, the accused calls the complainant, who explains that he expects to see Conias at 5 pm. The accused suggests Conias will not give money and the complainant should ‘sort out another option’. Then the accused tells the complainant Masri “doesn’t give a shit about the money anymore. He, I think he wants something else, man.” The complainant responds that he wants to pay. The accused refers to Conias and having to verify everything with Masri and says:
“But now that I’ve verified everything with Yusef, I’ll be honest with you, brother, he’s … he’s not very happy, man, and unfortunately he was very close to saying he doesn’t want the money anymore.”[55]
[55]MFI A: Volume of Transcripts at 43.1-25.
The prosecution submits this is a reference to the threat of physical violence. The defence suggests it is equally possibly a reference to reporting the complainant’s theft to police. The accused gave evidence to this effect.
Whenever the accused makes this suggestion, he does not say what option is now intended. The threat/menace hangs unsaid. But each time the accused or Masri suggest the money is no longer required, it evokes a more urgent response from the complainant or Conias. In my opinion, the overwhelming inference is that the threat to deal with the problem a different way is intended to resonate with the threats made at the meeting of 12 March, including the threat of physical violence.
I draw this conclusion even though later transcripts show the accused suggesting to Masri there is nothing else to do but report the complainant to the police. That never seems a likely move by Masri, not least because of his imminent departure from the country.
The complainant rings back five minutes later to say he will be meeting Conias at 5. The accused says he does not want to meet Conias, he will meet with the complainant.
The next call, at 4.36 pm, is between the accused and Masri. The accused reports that he told the complainant Masri was close to not wanting the money any more. They laugh about Masri being made to look the bad one. The accused reports that he told the complainant it was better for the complainant to deal with them than to go to the police. He reports the complainant saying he was desperate. Clearly these statements refer back to the original meeting. The accused reports that he made it clear that the complainant was “the one that stuffed up. He stole from you blatantly, we’ve got evidence .”[56]
[56]MFI A: Volume of Transcripts at 49.53-54.
This statement by the accused might confirm his belief that the complainant stole from and owed money to Masri but it does not, in my opinion, advance the case for reasonable grounds for the belief.
At 6.54 pm, the accused calls Masri to report receiving a message from Conias that the complainant was with him and he would be seeing Masri the next day. Masri instructs the accused to “tell him don’t worry about the money any more.”[57]
[57]MFI A: Volume of Transcripts at 51.46-47.
At 6.58 the accused calls Conias and tells him, “we don’t want actually the money anymore, so don’t bother comin’ tomorrow.” At this Conias explains how scared the complainant is, that his wife is worried, and gives purported details of the complainant’s parlous financial position. The accused explained, “we have no problem with [the complainant’s wife]. We have no problem with anyone, only the person that stole from the shop, that’s it.”[58]
[58]MFI A: Volume of Transcripts at 52.35 – 37.
At 8.57 the accused reports to Masri who tells him he has instructed a mutual acquaintance, Mickey, to speak to Conias, to “just warn him, what the hell’s he doing getting involved.”[59] The accused said he would meet Conias in the morning.
[59]MFI A: Volume of Transcripts at 55.31-32 and 56.6-8.
Conias sent a text message to the accused at 9 pm to meet at 6.30 am at the markets.
At 9.04 the accused speaks to Masri. The conversation includes the accused saying, “I think I’m just going to tell the police everything man” and “Just show, just show the evidence that we got to the police and let them deal with him good nice and hard you know.”[60]
[60]Transcript Exhibit D.
If this shows the real state of mind of the accused at this stage, it does not affect the finding that the relevant threats were made nor that his asserted belief in the existence of a debt to Masri was not based on reasonable grounds.
At 9.19 the accused rings Conias. He tells him “we don’t want the money from Billy anymore. We don’t want the money. We’re gonna deal with this in a different way. It’s the best thing to do. We’d rather deal with it in a different way.”[61] He tells Conias there will be no meeting at the markets. He will meet Conias mid-morning. Eventually they agree to meet at a particular café at West End.
[61]MFI A: Volume of Transcripts at 57.45 -57.48.
During this conversation Conias again speaks of the complainant’s parlous financial position. The accused suggests Conias remove himself from the negotiations and “we’ll deal with Billy by ourselves.”[62] Conias explains debts the complainant owes him and the two argue over whether and how the debt to Masri could be paid. The accused says, “He’s gonna give me a thousand bucks a week and that’s what’s gonna happen. If it doesn’t happen, then - - this whole thing gonna just fold.”[63]
[62]MFI A: Volume of Transcripts at 59.7.
[63]MFI A: Volume of Transcripts at 63.7-8, 63.12.
Conias clearly fears the alternative, which has remained unstated since the original meeting at the café.
In a mildly agitated voice, the accused says:
“Listen. Listen, brother. I’m in the industry of getting money for people. Okay? Now, I don’t try to, the best solution is to try to work out something, work out a negotiation.”[64]
[64]MFI A: Volume of Transcripts at 60.43-46.
The statement is heavy with the suggestion of detrimental consequences should negotiations fail.
Conias expresses concern for the complainant’s wife, his cousin, and asks the accused how he would feel if it was his first cousin. The transcript records the following:[65]
[65]MFI A: Volume of Transcripts at 64.50. I have listened several times and cannot improve on the transcript.
“SUCCARIEH: He’s got a freakin’ debt. He’s gotta pay it.
MITCH: [INDISTINCT]. Yeah, I know, bro.
SUCCARIEH: What I’ll do, I’ll go freakin’ chop his freakin’ legs off, that’s what I’d actually do if I was you.
MITCH: Well, I don’t really give a fuck what you do with him.
SUCCARIEH: No, no, I’m not gonna do this.
MITCH: As long as the daughter and the, and the –
These statements do not amount to threats by the accused to chop off the legs of the complainant. This evidence merely shows the accused’s facility with threatening language. The evidence tends, if only marginally, to make more likely the complainant’s evidence of the threat made by the accused ta the meeting of 12 March 2014.
It is in this conversation that the accused repeats, after Conias raises concern for the complainant’s wife and daughter, that “he has no intentions to do anything to anyone.”[66]
[66]MFI A: Volume of Transcripts at 65.11-12.
At 9.27 pm the accused reports briefly this conversation to Masri.
Text messages pass between Conias and the accused.
At 6.52 am on 14 March 2014 the accused and Masri talk, including about Conias having a lot of money and being retired.
At 10.31 am on 14 March 2014, Masri tells the accused Conias came to his shop and gave him “that money”. He reports, among other things, that Conias said he would give another lump sum in two weeks’ time; that he told Conias he was leaving the country and the accused was entrusted to gather his debt; that Conias said the complainant would call the police but Masri said, “Mate, let him call the police. I said, we’re doing nothing against the law mate.[67] I said, if, if you want, I’ll call the police. …. He goes, no, no, no. We know you …”[68]
[67]The words “against the law” are not in the transcript.
[68]MFI A: Volume of Transcripts at 73.57 – 58; 74.3 – 74.
On 24 March 2014, the accused called the complainant to advise that the two weeks was nearly up and “we’re expecting another payment on Thursday.”[69] The complainant says he knows nothing about another payment. It is left on the basis that the complainant will contact Conias.
[69]MFI D.
On 25 March 2014, the accused reports to Masri that he does not expect more money to come from the complainant. He suggests, “probably just let it go, you know?”[70] It is during this discussion that Masri suggests he should “Walk into that shop and just take everything that’s owed to me. That’s it. Walk in and take everything.”[71] And the accused recalls saying something similar to the complainant.[72] One can infer from things said during this discussion that Masri at least is aware of the likelihood that Federal police are listening to them.
[70]MFI A: Volume of Transcripts at 77.52.
[71]MFI A: Volume of Transcripts at 80.2-3.
[72]MFI A: Volume of Transcripts at 80.2 – 11 and see paragraph [77.41 - 52] above.
On 27 March 2014 Masri tells the accused that the complainant has gone to the police. He suggests the accused “went past that restaurant” and “threatened him and now he’s gone to the police.” The accused protests that he did not go near the place, “as soon as you told me to stay away from there.”[73]
Summary
[73]MFI A: Volume of Transcripts at 86.54 – 55.
There is no contest that the accused made the relevant demand with intent to gain a benefit for Masri. I am satisfied beyond reasonable doubt that the demand was made without reasonable cause and the threats were made.
There are two, at least, routes to the finding that the demand was made without reasonable cause.
First, there was no reasonable cause because there was no admissible evidence of a debt and if, which is likely, the accused believed the debt existed, he did not so believe on reasonable grounds.
Second, in any case, even if the accused made the demand under the honest and reasonable but mistaken belief that the complainant owed Masri more than $50,000, there was no reasonable cause for the demand as made – that is, with threats of unlawful violence to the complainant and unlawful trespass to his business.
In the result, I find the accused guilty of the charge.