Petch v R

HOEBEN CJ at CL: I agree with Hamill J that Grounds of Appeal 1 and 2 should be upheld and the conviction quashed. I also agree that Ground of Appeal 3 has not been made out. I agree with Hamill J that a re-trial should not be ordered. I agree with the orders proposed by Hamill J.

HAMILL J: On 2 May 2013, Ivan Petch was the Mayor of the City of Ryde and Danielle Dickson was the Acting General Manager of Ryde City Council. That afternoon, the pair had a conversation about some litigation in which the Council and a number of the councillors, including Mr Petch, were involved. More than five years later, on 12 October 2018, Mr Petch was found guilty of “blackmail”, pursuant to s 249K of the Crimes Act 1900 (NSW), based on what he said and did in the course of that conversation. His trial was conducted before Judge Noman SC and a jury. He was sentenced to imprisonment for 2 years, to be served by way of an intensive corrections order (ICO) that will expire on 9 December this year.

Mr Petch appeals against his conviction on the following grounds:

There was no substantial dispute at the trial as to the facts of the case. Similarly, on appeal, the submissions were based for the most part on the evidence adduced by the prosecution at the trial. The prosecution case turned on the testimony of Ms Dickson, her evidence as to what was said in the conversation on 2 May 2013 and on the inferences that could safely be drawn from the terms of that conversation, the context in which it occurred and Mr Petch’s demeanour at the time.

Ms Dickson was first employed by Ryde City Council in October 2011. She had qualifications in architecture and was studying a Masters of Business Administration. Her job title was Director, Community Life. In February 2013, after the General Manager (a Mr Neish) left the Council, Mr Petch offered Ms Dickson the temporary position of Acting General Manager until the position was filled. To that point, Mr Petch had been supportive of Ms Dickson and something of a mentor. The position was challenging for Ms Dickson as she was balancing her role as a mother with the extra responsibility of running the Council. Mr Petch asked her if she was enjoying the new role and whether she intended to apply for the permanent position when it was advertised. She agreed in the course of her evidence that she was ambitious and had decided to apply for the permanent position.

At the time Ms Dickson took on the role of Acting General Manager, the Council was involved in litigation in the Supreme Court of New South Wales. Some of the councillors, including Mr Petch, were defendants in that litigation. There was an issue concerning whether the legal costs of the individual councillors would be covered, reimbursed or otherwise indemnified by the Council or its insurers. The issue was complex because not all councillors were parties to the litigation and some of the councillors who were parties were not re-elected in Council elections held during the currency of the litigation. The councillors who were parties to the litigation were required to declare their interest and recused themselves when the litigation was considered by Council. This created issues in achieving a quorum.

The matter was raised in an extraordinary meeting on 27 March 2013. The minutes of that meeting became Exhibit A at the trial. Pecuniary and non-pecuniary interests were declared and a number of councillors recused and/or absented themselves. For reasons of no significance the meeting was adjourned more than once. The following resolutions were made on 9 April 2013:

Ms Dickson explained that the second resolution reflected her understanding that it was inappropriate for her to discuss the details of the matter with those councillors, including Mr Petch, who had a pecuniary interest in the outcome.

On 23 April 2013, the Council resolved to commence the process of filling the General Manager’s position on a permanent basis. A Mayoral Minute containing the resolution and a timetable for the recruitment process became Exhibit B. [1] Ms Dickson gave evidence that the Council wanted to have the permanent General Manager appointed by August or September 2013. The Minute showed that the Mayor was to chair the committee managing the recruitment process. However, the appointment was ultimately a matter for the Council to vote on as a collective.

Ms Dickson gave evidence that Mr Petch asked how she was enjoying the role of Acting General Manager and she asked him how he thought she was performing. He provided positive feedback and encouraged her to apply for the permanent position.

On 18 April 2013, Ms Dickson received an unsolicited email from a solicitor, Mr Belling. The email was sent at the request of Mr Petch and provided advice that “an option” in relation to the ongoing Supreme Court litigation was for the Council to reimburse the councillors for their legal costs. The email was marked for identification in the course of Ms Dickson’s evidence (MFI 4). A redacted version was tendered in the defence case after the cross-examination of Ms Dickson (Exhibit 5). Mr Belling gave evidence at the trial. He acted for the Council in respect of the “deed of separation” concerning the former General Manager. He agreed Mr Petch approached him and asked him to provide advice to Council in relation to the outstanding costs issue. Mr Belling could not remember the appellant telling him that the Council had engaged independent lawyers to advise on the issue.

On 2 May 2013 at 12.04pm, Ms Dickson distributed an email to the members of Council. It said:

At about 3.00pm on 2 May 2013, there was a meeting in the Mayor’s office about an award for Ryde’s “Citizen of the Year”. The meeting was attended by Mr Petch, Ms Dickson, “probably four staff” and the short listed candidates for the award. After the meeting, Mr Petch asked Ms Dickson to “stay back”. Ms Dickson described the layout of the room and said she was seated on a lounge “a metre maybe” from Mr Petch. She said the door was closed but could not recall how it came to be closed. In light of its importance, it is necessary to set out Ms Dickson’s version of the critical conversation as provided in her evidence-in-chief:

Ms Dickson gave evidence that she thought the conversation was “inappropriate and potentially corrupt”. Shortly after she left Mr Petch, she typed some notes and telephoned the Independent Commission Against Corruption (ICAC).

Ms Dickson’s note of the conversation was tendered as Exhibit D. There was no objection to her six paragraph narrative of what occurred. However, objection was taken to the seventh and final paragraph of the note. It is this paragraph that is the subject of the second ground of appeal. The note was as follows (with my italicisation of the final paragraph):

There was cross-examination about the precise terms of the conversation, where the pair was seated and Mr Petch’s tone, demeanour and physical actions. However, the appeal was effectively conducted on the basis of the evidence I have just set out.

There was evidence of an exchange of text messages between the appellant and Ms Dickson later on in the evening of 2 May 2013, of Ms Dickson’s approach and interactions with ICAC, the advice Ms Dickson received from the Council’s lawyers and the way in which the costs issue was ultimately resolved. It is not unfair to describe most of the other evidence adduced at trial as largely peripheral to the central issue concerning the inferences to be drawn from Ms Dickson’s evidence of the 2 May conversation and the context in which that conversation occurred, including Mr Petch’s motive to achieve a result whereby he and the other councillors had their litigation costs indemnified.

A number of pre-trial issues were addressed between 26 September 2018 and 2 October 2018. It is unnecessary to go into very much detail.

The pre-trial issues included a notice of motion demurring to the indictment based on the failure of the original indictment to allege facts capable of establishing “menaces” as defined in s 249M of the Crimes Act, that is an express or implied threat. The substance of the demurrer was upheld because the original indictment alleged that the “unwarranted demand” was made “to improve [Ms Dickson’s] prospects of being the successful applicant for the permanent General Manager’s position”. Judge Noman SC held that this was an “inducement” rather than a threat of any detrimental or unpleasant action. Her Honour held that the indictment in that form was defective. However, her Honour did not accept that the indictment did not charge an offence known to the law. Accordingly, the orders sought in the notice of motion were refused and the Prosecutor was given leave to amend the indictment. The amended indictment cast the menaces or threat in terms whereby it was alleged that Ms Dickson’s “prospects of being the successful applicant for the permanent General Manager’s position at the Ryde City Council would be adversely affected” if she did not comply with the unwarranted demand.

There were also a number of evidentiary rulings made before the trial commenced. The Judge rejected evidence the prosecution sought to rely on as tendency evidence. An objection to certain portions of a telephone intercept was overruled, as was an objection to evidence of a Ms Carpenter, and an objection to the notes made by Ms Dickson. The question of the admissibility of the final paragraph of Ms Dickson’s notes remained outstanding.

A jury was empanelled on 2 October 2018 and the evidence was all but completed 3 days later on 5 October. A number of legal arguments were then addressed in the jury’s absence. This included arguments relating to the elements of the offence and an advanced ruling that, if the appellant raised his good character, the prosecution would be permitted to lead particularised evidence to rebut good character. The jury returned on Monday, 8 October 2018, when the last of the evidence was taken, the Prosecution closed its case and Counsel delivered their closing addresses.

The trial Judge summed up the next day and the jury retired to consider its verdict at 2.16pm on Tuesday 9 October 2018. The jury indicated it could not reach a unanimous verdict on the morning of Friday, 12 October 2018 and the Judge exhorted the jury in accordance with the High Court’s decision in Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. The jury returned its verdict of guilty at 3.47pm that day.

The first ground of appeal raises a complaint in relation to the legal directions provided to the jury that was not raised at trial. The relevant part of the summing up and written directions essentially accorded with the submissions made by senior and junior counsel appearing for Mr Petch. The ground relates to the directions provided to the jury as to the mental element of the offence and the construction of s 249K of the Crimes Act. The section was introduced in 2007 and it seems the issue has not previously been considered at an appellate level. Because of the importance of the question to the administration of justice generally, and because it involves an element of the offence that was potentially critical to the outcome of the appellant’s trial, leave pursuant to r 4 of the Criminal Appeal Rules 1912 (NSW) should be granted. In spite of the stance taken by the appellant at the trial, I would uphold this ground of appeal.

The second ground complains of the admission of evidence over objection concerning Ms Dickson’s opinion of the appellant’s state of mind. This included the final paragraph of the notes taken by Ms Dickson and oral evidence to a similar effect. The evidence was not admissible and this ground should also be upheld.

The third ground asserts that the verdict was unreasonable and unable to be supported having regard to the evidence. This ground is not established. It was open to the jury to convict the appellant on the admissible evidence and if given proper directions.

The final issue, argued against the possibility that the Court would uphold grounds 1 and/or 2 but not ground 3, is whether the Court should order a retrial. In my view, it should not.

These are my reasons for those various conclusions.

The appellant submitted that the trial Judge erred in her directions to the jury in relation to the intention required to prove the offence. The directions in question were discussed at a little length before the summing up and the directions were agreed to by Senior Counsel for the applicant. There is no dispute that leave is required to rely on this ground: Criminal Appeal Rules, r 4.

The issue of the mental element of the offence arose initially in the course of submissions on an objection taken to Ms Dickson’s evidence under s 131 of the Evidence Act 1995 (NSW) (exclusion of evidence of settlement negotiations). Counsel for the appellant submitted the elements were as follows: [2]

This submission was derived from the “Victorian Bench Notes” relating to the blackmail offence created by s 87 of the Crimes Act 1958 (Vic) which was provided to the trial Judge. The Prosecutor disputed that the fourth of these elements was a matter that had to be proved beyond reasonable doubt. The Judge was provided with a variety of secondary sources including the second reading speech delivered when s 249K was introduced in 2007 and parts of a discussion paper and reports concerning the Model Criminal Code upon which the New South Wales provision was based. The Prosecutor submitted that the direction should accord with that suggested in the material relating to the Model Criminal Code although she did not provide a particular form of words.

In a judgment determining that the evidence was admissible, Judge Noman concluded that “the elements are to be as identified as in the Model Criminal Code, which largely adhere to the wording of the offence provision”. [3] At that stage, her Honour did not identify any particular form of words to be used in directions to the jury on the elements of the offence.

On Friday, 5 October 2018, the trial Judge provided the parties with a proposed written direction on the elements of the offence in draft form (MFI 17). The parties were invited to comment and counsel for Mr Petch sent an email to the Judge on 7 October suggesting some proposed changes to the document (MFI 18). The trial Judge incorporated these changes into a second version of the draft direction and provided it to the parties on Monday, 8 October 2018 (MFI 19). The issue was then discussed and the parties, mostly by agreement, suggested further changes. There was an email exchange that night with the parties asking for some refinement of the directions relating to the term “threat” (MFI 25-26). The Judge incorporated these changes and provided another version of the proposed elements document (MFI 27). There was then further discussion, and yet another draft document (MFI 28) provided to the parties, although the record before this Court does not indicate when this occurred. It seems that MFI 28 was the final version of the written directions provided to the parties prior to the summing up. [4]

It can be seen that Judge Noman took considerable care to ensure that the parties provided input into the directions on the elements of the offence. Ultimately, the document was largely in an agreed form but there was some dispute as to the directions on intention. The Prosecutor maintained her position that the directions should accord with the Model Criminal Code but acknowledged that her Honour may be “minded to adopt [the appellant’s] interpretation and on that basis, the Crown is content with how your Honour has expressed it”. The approach finally adopted appeared to accord with the submissions made on Mr Petch’s behalf.

The written direction provided to the jury became MFI 29 and was distributed to the jury towards the beginning of the summing up. It was in the following terms:

The oral directions essentially took the jury through the document and repeated the written directions:

Her Honour then gave uncontroversial directions as to how a person’s intention can be inferred from their words and conduct.

There was no application for any re-direction in relation to the elements of the offence or the issue of intention.

The appellant submits that the trial Judge fell into error in the directions concerning the mental element of the offence. It was submitted that the Victorian model should not have been followed because the relevant statutory provisions are substantially different to s 249K of the Crimes Act. Based on the history of the legislative changes and the Final Report on the Model Criminal Code, upon which ss 249K, 249L and 294M are based, it was submitted that the offence requires “proof of an intention to menace”. This, in turn, required proof of an intention to make an express or implied threat of “action detrimental or unpleasant to another person” and an intention that the threat “would cause an individual of normal stability and courage to act unwillingly in response.” [5] It was submitted that the direction “you must also find that [the threat] was sufficiently serious as would cause such an individual of normal stability and courage in Ms Dickson’s position to act unwillingly in response” provided an objective test and did not deal with the mental element.

It was accepted by counsel appearing on the appeal that the trial Judge was not provided with the assistance required. However, because the error related to an element of the offence it was submitted that rule 4 ought not to be invoked against the appellant.

Section 249K(1)(b) of the Crimes Act provides:

Section 249L defines the term “unwarranted demand”:

Section 249M defines “menaces”:

The amendments incorporating ss 249K-249M were introduced by the Crimes Amendment Act 2007 (NSW). It was based on the Model Criminal Code. The provisions are, relevantly, in identical terms to those set out in Division 18 the Model Criminal Code. [6] They are in somewhat different terms to the provisions enacted in the Commonwealth Criminal Code, [7] although those provisions were also based on the Model Code.

The appellant placed particular reliance on the commentary in the Final Report to the Model Criminal Code where the “fault elements” were described as follows: [8]

The accompanying narrative includes the following explanation:

Section 249K itself provides two alternative intentions that must accompany the “unwarranted demand with menaces”. These are (a) an intention of obtaining a gain or causing a loss or (b) an intention of influencing the exercise of a public duty. It was the second of these that was relevant in the present case and the trial Judge provided a clear direction in “Element 3” that the prosecution was required to prove “the demand was made with the intention of influencing the exercise of a public duty.”

However, by use of the ablative “with menaces” attaching to the requirement of an “unwarranted demand” (in s 249K) and the definition of “menaces” (in s 249M), the section also requires proof of an intention to make an “unwarranted demand with menaces”. By reference to the definition of “menaces” in s 249M, this requires proof that the accused person intended to make “an express or implied threat” and intended to cause the person subject to that threat to act unwillingly in response to the threat.

The directions provided to the jury under element 4 covered, at least implicitly, the second of those requirements by incorporation of the words “the accused must have intended that Ms Dickson fear that the threat would be carried out unless she complied”. However, the directions did not demand proof that the accused intended to issue an express or implied threat (which is the core of the definition of menaces in s 249M). This was an error in the directions going to an essential element of the offence.

To be clear, in cases prosecuted under s 249K, the jury must be directed in some clear form that the offence is only established if it is proved beyond reasonable doubt that the accused person intended to make an unwarranted demand with menaces and that requires (amongst other things) proof that he intended to make an express or implied threat. No particular form of words is required but it must be made clear, especially in the case of an implied threat, that the accused intended to make an unwarranted demand, intended the demand to be with menaces and that this involves an intention to make a threat.

I am fortified in this view by the contents of the Final Report on the Model Criminal Code but my conclusion as to the requirements of proof and the elements of the offence created by s 249K is largely based on the plain words of the statute, the definition of menaces in s 249M and the general law concerning the presumption of mens rea: see, for example, Sweet v Parsley [1970] AC 132 at 149; He Kaw Teh v The Queen (1985) 157 CLR 523 at 528-531 (Gibbs CJ), 549-560 (Wilson J), 568, 582-583 (Brennan J) and 591-592 (Dawson J).

This construction also appears to align with the approach taken in the United Kingdom. The blackmail offence contemplated by the Model Criminal Code was said to be based on s 21 of the Theft Act 1968 (UK) which provides:

In R v Lambert [2010] 1 Cr App R 299; [2009] EWCA Crim 2860, the Court of Appeal said of this provision at [10]:

Particularly given the position adopted by the appellant at trial, I have considered whether the omission was one that may have impacted on the outcome of the trial. In other words, I have addressed the question of whether the accused lost a chance of acquittal that was fairly open to him. This is relevant to, although not determinative of, whether leave should be refused under rule 4, and whether it can be said that no substantial miscarriage of justice actually occurred, so as to invoke the proviso to s 6 of the Criminal Appeal Act 1912 (NSW).

The facts of the present case were unusual. It was not a typical case of “blackmail”. This was highlighted by the way in which the original indictment was drafted, where the “unwarranted demand with menaces” was identified as an inducement. On the unusual facts of the case, it was possible for the jury to accept that Ms Dickson took the words and conduct as a threat (that is, an unwarranted demand with menaces) and conclude that the behaviour, considered objectively, amounted to a threat, but nevertheless to entertain a reasonable doubt as to whether Mr Petch intended his conduct to constitute such a threat. If the jury were of such a mind, the omission of a direction that he was only guilty if he intended to make an unwarranted demand with menaces may have been crucial.

I can see no forensic or tactical reason for counsel at the trial to have adopted the stance they did. The legislation was relatively new and untested, a matter the trial Judge acknowledged at the conclusion of her judgment on sentence. All participants were doing their best in the absence of direct authority and by reference to analogies with legislation elsewhere and secondary material. While the trial judge accepted the submissions of his then counsel, the appellant lost the chance of acquittal reasonably open to him as a result of the omission of an important direction concerning the elements of the offence. In the circumstances, I would neither invoke rule 4 nor apply the proviso. I am unable to conclude that there was no substantial miscarriage of justice.

For those reasons, I would grant leave under rule 4 and uphold ground 1.

Mr Petch accepted that all but the final paragraph of the notes taken by Ms Dickson was relevant and admissible as an exception to the hearsay rule pursuant to s 66 of the Evidence Act. It was submitted that the final paragraph was inadmissible on three bases. First, the evidence was not relevant. Second, the evidence was hearsay and did not constitute an exception under s 66 because it was not “first-hand hearsay” as defined in s 62. Third, the evidence was inadmissible opinion evidence (s 76) and the exception relating to lay opinions in s 78 did not apply. The first and third arguments, but not the hearsay argument, applied to similar opinions provided by Ms Dickson during the course of her evidence.

The arguments at trial and on appeal were largely directed to the issue arising under s 78 of the Evidence Act. For that reason, I will deal with that issue first. Before doing so however, it should be observed that the inference to be drawn from Mr Petch’s words and actions was the central issue the jury was called on to determine. His case was that he issued no threat and made no “unwarranted demand with menaces”. The evidence to which objection was taken essentially invited Ms Dickson to give evidence of Mr Petch’s state of mind when the words relied on by the prosecution were uttered.

Before the Prosecutor sought to tender Exhibit D (Ms Dickson’s notes of the conversation), Ms Dickson had already been permitted to give evidence of her opinion as to Mr Petch’s intentions. The Prosecutor argued, and the trial Judge accepted, that the evidence was admissible under s 78 of the Evidence Act. The evidence is set out above at [13]. To repeat an example, Ms Dickson gave the following evidence over repeated objection:

The final paragraph of the notes taken by Ms Dickson was in the following terms:

When objection was taken to the final paragraph of Exhibit D, the Prosecutor again relied on s 78. Senior Counsel for Mr Petch submitted “what really is being provided here in this case, through this witness, is her opinion about this man’s criminality and the fact that a crime was being committed.” After the trial Judge suggested the witness may be able to give evidence to explain “why she was making notes”, Senior Counsel continued:

The Prosecutor referred to the judgment of Spigelman CJ in R v Whyte [2006] NSWCCA 75. No attention was paid to the contrary view taken by Simpson J in the same case, to the fact that the Chief Justice’s view was not adopted by the majority, or to the fact that the judgment of Spigelman CJ has been questioned in subsequent cases. Senior Counsel for Mr Petch referred to Benasic v R (1987) 77 ALR 340, although the argument was not refined or developed to any significant degree and the case appeared to be treated by the Prosecutor and trial Judge as one favouring the admissibility of the evidence. It seems that neither party drew her Honour’s attention to the other judgments in R v Whyte, to the decision in McLaren v Chief of Navy [2013] ADFDAT 5 or to the High Court’s analysis of s 78 in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36. Judge Noman determined the evidence was admissible and the trial proceeded.

In cross-examination, further evidence of a similar kind emerged. This was inevitable once the evidence was elicited in chief and in the final paragraph of Exhibit D. Senior Counsel was confronted with the reality that the evidence was before the jury and had to be challenged. That undertaking was something of a forensic minefield. The evidence of the witness included the following opinions as to what was in the appellant’s mind:

Section 76 of the Evidence Act provides “evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.” Section 78 provides the following exception to this rule:

Benasic v R was a blackmail case where the alleged victim was permitted to give evidence of how he felt when the threat was communicated to him. He said he was shaking and very frightened. The Federal Court held the evidence was admissible. Fox J said at 342, the evidence was relevant because (i) the reaction was “part of the event” or res gestae, (ii) “it tends to show that the threat was serious, and not simply an excusable joke” and (iii) the reaction of the addressee, while by no means conclusive offers some assistance … as to the objective test”. Kelly and Pincus JJ held at 344, that the victim’s response may provide evidence “as to the menacing character of the approach.” Putting aside the fact that Benasic v R was decided under different kidnapping provisions and was not concerned with s 78 of the Evidence Act, the case was concerned with the victim’s reaction and its impact on the question of the objective impact of the threat. While those issues may have had indirect relevance to the question of intention, the evidence was not concerned with the victim’s opinion of what was in the accused person’s mind, or directly concerned with their intention, when the offending words were uttered. The same applies to the cases upon which reliance was placed by the Federal Court: R v Clear [1968] 1 QB 670 at 679 and Connolly v Willis [1984] 1 NSWLR 373 at 384.

As the appellant conceded on appeal, the application of those cases may have permitted evidence of Ms Dickson’s reaction. However, they do not authorise the admission of evidence of her perception or opinion of the appellant’s intention or state of mind. The question is whether the lay opinion rule in s 78 does so.

R v Whyte was a sexual assault case in which evidence was given that the complainant told her mother the accused “tried to rape me”. Spigelman CJ expressed the opinion (at [31]) that “the victim of a sexual assault who has a belief as to what is being done is entitled to express that belief”. As to s 78, his Honour said (at [36]):

Simpson J (as her Honour then was) disagreed. While the evidence was admissible as evidence of “complaint” and pursuant to s 66 of the Evidence Act, it was not admissible to prove the appellant’s state of mind. Her Honour explained:

The third member of the Court, Barr J, did not address the s 78 issue. His Honour merely agreed that the evidence was admissible as evidence of complaint.

R v Whyte was not a binding authority on the issue that presented itself to the trial Judge in the present case. There was no majority supporting the application of s 78 to evidence whereby a witness purports to provide an opinion as to an accused person’s state of mind or intention. The position taken by Spigelman CJ was not accepted in McLaren v Chief of Navy and does not fit comfortably with the judgments of the High Court in Lithgow City Council v Jackson. In my view, the approach taken by Simpson J in R v Whyte was correct.

Partington v R [2009] NSWCCA 232 was a very different case factually although the Court noted the difference of opinion taken by Spigelman CJ and Simpson J as to the correct approach to s 78 in R v Whyte. Partington was a homicide case and concerned the evidence of a witness who heard banging on a door and was permitted to give evidence of her opinion that a person or a person’s head was being pushed against the door. She gave evidence of hearing moans and other noises. McClellan CJ at CL said at [46]:

His Honour provided some examples, some of which might be considered controversial and need not be considered further here. As to the evidence in Partington, his Honour concluded at [47]:

In McLaren v Chief of Navy, the Defence Force Disciplinary Tribunal (Tracey J (President), Logan and Brereton JJ (Members)) held at [46] that Partington supported the view taken by Simpson J in Whyte, as “do the plain words of s 78 of the Evidence Act.” Their Honours continued:

The issue in McLaren v Chief of Navy arose from evidence of the complainant that the defendant used a mirror to look at her in a shower cubicle. The Tribunal concluded at [49]:

A similar approach was taken by the Victorian Court of Appeal in Patrick v The Queen (2014) 42 VR 651; [2014] VSCA 89. A complainant was permitted to give evidence of her interpretation or “perception” of an apology cast in general terms provided by the alleged perpetrator (her father) of sexual offences against her. The witness said she believed the apology was a reference to sexual misconduct. The Court (Neave and Tate JJA and Sifris AJA) held the evidence was not relevant at [33]:

As to the suggestion that the complainant’s evidence might be admissible as a lay opinion, at [50] the Court held:

Before turning to the evidence in the present case, I should make fleeting reference to the High Court’s consideration of s 78 in Lithgow City Council v Jackson. It is unnecessary to consider the decision closely other than to note that the Court made it clear that the word “perceived” in s 78(a) is a reference to an observation “made by one of the five senses of sight, hearing, smell, taste or touch”: at [43] (French CJ, Heydon and Bell JJ). Their Honour’s also considered the meaning of the word “necessary” in s 78(b), noting at [51] that the function of the provision “is to make up for incapacity to perceive the primary aspects of event and conditions, or to remember the perception, or to express the memory of that perception”. At [53]-[54], their Honours rejected the suggestion that “necessary” should be construed as “not unreasonable”: the provision is not a “best evidence provision”, “permitting reception of the evidence if there is no better evidence”. Rather, the word “necessary” is directed “to a relationship internal to the evidence of the perceiver – the relationship between the perceiver’s perceptions and the perceiver’s opinion”.

The respondent’s written submissions dealt with this ground in one paragraph. [9] It was submitted that Ms Dickson’s perception of the words spoken by the appellant was a “material issue” at the trial. Reliance was placed on the fact that her perception that the words amounted to a threat was challenged in cross-examination. It was submitted that Ms Dickson’s opinion “that the appellant intended to threaten her was not led to prove the intention; but to prove her understanding or perception of that intention.” The respondent also submitted that the trial Judge directed the jury that it “should ignore the opinion for the purpose of deciding whether the [prosecution] had proved beyond reasonable doubt each of the elements”. It was submitted that R v Whyte is the “closest case in factual similarity to the present case” and that “the court held (by majority) the words [were] admissible”. None of these submissions can be accepted.

Ms Dickson’s perception of the threats was not a material issue at the trial. The material issues were (relevantly) whether an “unwarranted demand with menaces” was made and whether the appellant acted with the requisite intention. The fact that the appellant was driven to cross-examine on Ms Dickson’s perception, because evidence was elicited over objection in the evidence in chief, did not make it a material issue. Nor does it justify, retrospectively, the admission of the evidence.

The trial Judge did not direct the jury that it should ignore the evidence of Ms Dickson’s opinion when considering the issue of whether there was a threat or in considering Mr Petch’s intention. The passage relied on by the respondent was concerned with Ms Dickson’s perception that the conduct may have been corrupt. Her Honour said:

The first sentence of that passage followed directions concerning the drawing of an inference “whether or not the accused used menaces or threat”. The jury was not directed that it could not use Ms Dickson’s perception in drawing such an inference.

The respondent’s submission in relation to R v Whyte is simply wrong. While each of the judges held the evidence was admissible as complaint evidence, only one member of the Court (Spigelman CJ) held the evidence was admissible as a lay opinion going to the issue of the accused’s intention and whether there was, in fact, a sexual assault. Simpson J disagreed and Barr J did not decide the issue.

The respondent submitted, without any analysis, that both sub-sections of s 78 were satisfied. Ultimately, that is the issue to be determined.

Some of the cases have emphasised the importance of identifying the “matter or event” to which the operation of the section is directed. The appellant submitted that the “matter or event for the purpose of s 78(a) was the appellant’s state of mind”. Alternatively, without making any concession, the appellant submitted if “framed more broadly”, the matter or event was “the interaction between the complainant and the appellant”.

If it is the former, the complainant’s opinion evidence was not relevant. Her opinion could not rationally effect the assessment of the probability of a fact in issue in the trial: cf Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at [11]-[12]. Smith v The Queen was concerned with evidence of police officers that CCTV photographs of the perpetrator of a robbery depicted the accused. Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

Contrary to the appellant’s submission, I am inclined to the view that the “matter or event” for the purpose of s 78 of the Evidence Act was the conversation and interaction between the protagonists during their five minute meeting in the Mayor’s office on 2 May 2013. The “opinion” for the purpose of the section concerned what that interaction meant or established (that is, whether there was an unwarranted demand with menaces), including what was in the appellant’s mind and what he intended at the time.

To fall within s 78(a), the evidence of Ms Dickson’s opinion had to be based on what she “saw, heard or otherwise perceived” about the matter or event. Insofar as the opinion concerned Mr Petch’s intention or state of mind, it was not an opinion based on what Ms Dickson “saw, heard or otherwise perceived”; that is by reference to her five senses of sight, hearing, smell, taste or touch. Rather, it was an inference she drew from the all of the circumstances including the issues then confronting the Council, her knowledge of, and relationship with Mr Petch, and her understanding of his personal and pecuniary interests.

Turning to s 78(b), the evidence of Ms Dickson’s opinion was not necessary to obtain an understanding of her “perception of the matter or event”. There was no confusion in her evidence about what was said in the conversation, the change in the appellant’s demeanour, or the tone in which things were said.

Neither the oral evidence, nor the final paragraph of the notes Ms Dickson made after the conversation, was admissible under s 78 of the Evidence Act.

The note taken shortly after the incident was also hearsay evidence and inadmissible unless caught by one of the exceptions to the hearsay rule.

The appellant conceded that all but the final paragraph of the note was admissible under s 66 of the Evidence Act. It contained representations given by a person, of things seen, heard or otherwise perceived by that person, who was available to give evidence. The occurrence of the asserted facts was “fresh in the memory” of the person when the representation was made.

However, the final paragraph contained an opinion that the Mayor was “threatening to manipulate” the General Manager recruitment process one way or another depending on what Ms Dickson did in relation to the indemnification of costs arising from the pending litigation. An opinion as to what was in the appellant’s mind, and what his intentions were, was not first-hand hearsay as that expression is defined. Section 62 provides that s 66, and other sections within Division 2 of Part 3.2, only applies where a person has “personal knowledge of an asserted fact”: s 62(1). Section 62(2) provides:

Ms Dickson did not see, hear or otherwise perceive what was in Mr Petch’s mind at the time of the conversation. The evidence was not first-hand hearsay and s 66 did not apply to provide an exception to the hearsay rule.

The respondent submitted that if there was an error in the admission of the evidence “the proviso applies and there was no substantial miscarriage of justice”. [10] No submissions were advanced in support of this contention and it can be disposed of briefly. If the invitation to apply the proviso was related to the contention that the trial Judge directed the jury that the evidence could not be used to prove there was an unwarranted demand or to assess the appellant’s intention, that submission must be rejected. As the passage set out at [80] demonstrates, there was no such direction. The direction related to Ms Dickson’s opinion that the interaction may be corrupt. The jury was not directed to disregard her opinion as to the appellant’s state of mind or whether he was making a threat.

The case against the appellant, in relation to the particular offence charged against him, was not an overwhelming one. The inadmissible evidence went directly to one of the central issues the jury was called upon to determine. The witness gave the evidence in absolute terms. Ms Dickson said she was “left in no doubt” as to the appellant’s intention and that he was making a threat. She said she “entirely understood what he intended”. She said she “knew him well” and had a “[collegiate] relationship” with him from their many interactions. I accept the appellant’s submission that evidence given in such terms, in relation to a central issue at the trial, “was likely to have a seductive effect” on the jury.

I am not persuaded that no substantial miscarriage of justice actually occurred. I would uphold ground 2.

The appellant submitted that the verdict was unreasonable and could not be supported having regard to the evidence. The approach to be taken to such a ground is well established and need not be repeated here: see for example, M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400 at 408; [2011] HCA 13, R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. The principles were most recently restated by the High Court in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12. They were summarised by the this Court in Guo v R [2020] NSWCCA 40 as follows:

The appellant relied on the unusual nature of the offence which led the prosecution initially to draft an indictment that contained no allegation of any threat to cause a detriment to Ms Dickson. The evidence of the complainant, especially the crucial part of the evidence set out at [13] above, was deconstructed with considerable care and fastidiousness by Senior Counsel on the hearing of the appeal. It was submitted that the evidence did not establish that a threat was made and that the jury ought to have entertained a doubt as to whether there was any unwarranted demand with menaces. It was also submitted that, even if “menaces” were established, the nature of any threat was “not of a quality to cause an individual of normal stability and courage to act unwillingly in response.” Reliance was placed on the complainant’s evidence that she was somewhat diffident as to whether she wanted the permanent job given her family commitments.

In considering this ground, I have disregarded the inadmissible evidence of the complainant’s opinion as to the appellant’s intention. I have directed myself as to the intention that must be established in accordance with my resolution of ground 1. I have taken into account that the prosecution’s case was circumstantial and that any inference inconsistent with guilt must be excluded beyond reasonable doubt.

Considering all of the evidence, I am not satisfied that the jury ought to (or as some cases put it, “must”) have entertained a reasonable doubt about the appellant’s guilt. In oral submissions, the appellant approached the crucial part of the complainant’s evidence in a piecemeal fashion. The jury was required to consider the evidence taken as a whole. The same applies to an assessment of the evidence undertaken by this Court. Having considered the evidence in that way, I am satisfied that it was open to the jury to find that the appellant intended by his words and conduct on 2 May 2013 to issue an implied threat to act to Ms Dickson’s detriment in her application for the permanent General Manager’s position.

It is true, as the applicant submitted, that Mr Petch was not empowered to deny Ms Dickson the job and could not have exercised control over the votes cast by the other councillors. However, his position as Mayor, role on the selection committee, and leader of a “block” of councillors who tended to vote together, placed him in a position where he was capable of exercising some influence. At the very least, that was likely to be Ms Dickson’s perception – a matter of which the appellant would have been fully aware.

It was also undoubtedly the case that Mr Petch had a financial interest in the issue he raised with Ms Dickson and this provided him with a motive to attempt to influence her. The evidence of Mr Belling was capable of supporting the fact that Mr Petch had an interest in the outcome and had taken steps to achieve a particular result. The question of whether the threat would have caused a person of normal stability and courage to act unwillingly was an issue in relation to which a jury of 12 was in a distinctly advantaged position to evaluate. As the High Court emphasised in Pell v The Queen at [37]-[39], the advantage referred to in cases such as M v The Queen is not confined to the advantage of seeing and hearing the witnesses give evidence and the atmosphere of the trial. It also involves the interactions of 12 members of the community called upon to reach unanimity.

Ms Dickson’s evidence of the appellant’s change of mood and demeanour, and his physical actions while uttering the words giving rise to the charge was important in providing the flavour and import of the conversation. Those actions were relevant to the jury’s (and this Court’s) assessment of his intentions.

I would reject the third ground of appeal.

Having upheld the first and second ground of appeal, the appeal must be upheld and the conviction and sentence be quashed. The question is whether the Court should exercise its power under s 8 of the Criminal Appeal Act to order a retrial. The principles are well established although their application to particular cases can be controversial: see, for example, King v R (1986) 161 CLR 423; 67 ALR 379, R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, Gerakiteys v R (1984) 153 CLR 317; 51 ALR 417, R v Honeysett (1987) 10 NSWLR 638 at 646. The appellant relied on what was said in Castagna v R; Agius v R [2019] NSWCCA 114 at [190]-[205].

The respondent was correct in referring to the public interest in the prosecution of criminal offences, particularly those committed by people, like the respondent, who (allegedly) used their high public office to commit the offence.

On the other hand the case has unusual and compelling features. The appellant is now 80 years of age. There was a five year delay in bringing him to trial. By the time this judgment is published he will have served more than three quarters of the custodial sentence (intensive corrections order). By the time of any retrial, eight or nine years will have elapsed since the offence was allegedly committed. Mr Petch was subject to public scrutiny and opprobrium in the course of proceedings before the Independent Commission Against Corruption.

In all of the circumstances of this case, I would not order a retrial.

For those reasons, I would make the following orders:

CAVANAGH J: I have had the considerable benefit of reviewing the judgment of Hamill J. I agree with the orders that his Honour proposes and, except with respect to ground 1, generally agree with his reasons.

The point on which I disagree with his Honour is in respect of the elements of the offence of blackmail as set out in s 249K of the Crimes Act.

The applicant submits that the elements of the offence include a requirement that the prosecution prove “an intent to menace”. This had not been part of the agreed directions to the jury in respect of the offence.

The written direction to the jury included a specific reference to the requirement that the demand was made with menaces but did not include a direction as to the intent to menace.

I accept, as submitted by the applicant, that one of the directions appears to have been taken from the Victorian Bench book for the offence of blackmail as set out in s 87 of the Crimes Act 1958 (Vic) and that there are differences in the NSW and Victorian provisions. However, this direction could not have been of any consequence or disadvantage to the applicant in terms of the jury’s decision. This is not the point of ground 1.

It is not necessary that I comment further on the background to the directions given to the jury or the issues that arose at the time. These matters have been covered thoroughly by Hamill J.

The applicant’s real complaint is that the directions did not include any statement to the effect that it was necessary to prove that the applicant intended:

The reason that such a direction was not included was that neither the trial judge nor the parties considered that an intent to menace was an element of the offence. The applicant now advocates a different construction of the offence provision.

The offence provision is set out in s 249K of the Crimes Act as follows:

It is clear that the offence requires the prosecutor to establish that the accused intended to obtain a gain or cause a loss or influence the exercise of a public duty. There is thus a necessary mental element to the offence.

The legislative drafting technique adopted was to define the terms used in the offence provision in separate provisions as follows:

As such, when construing s 249K, both “unwarranted demands” and “menaces” must be given the meanings ascribed to them in ss 249L and 249M.

A demand with menaces is unwarranted unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand. The meaning of unwarranted demand thus requires a finding as to the belief of the offender.

On the construction advanced by the applicant, the prosecution must also prove a third mental element being intent to menace. This is said to be supported by the proper construction of s 249M.

For the reasons set out below, I disagree that s 249M should be construed in such a way as to include an intent to menace as an element of the offence.

Statutory construction involves a consideration of text, context and purpose. The primary object of a statutory construction is to construe the relevant provision consistently with the language and purpose of the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

As observed by Gleeson CJ in Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29 at [8]:

It is important to emphasise that s 249M is in the nature of a definition section. It is entitled “Menaces—Meaning”, although the drafters have then used the non-exhaustive term “includes”. It may be that, despite the use of “includes”, s 249M is intended to be exhaustive as it is difficult to anticipate how any other meaning could be given to “menaces” for the purposes of the actual offence provision. This is particularly so when the drafters adopted the technique of specifying that a threat does not constitute a menace unless certain other requirements are satisfied.

Section 249M should be interpreted according to the ordinary meaning of the words used. A qualification should not be introduced unless required by the text or the context in which the provision appears. Section 249M does not operate independently of s 249K.

Such a provision should be interpreted in the context in which it appears: Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635; [1966] HCA 74 (Barwick CJ, McTiernan and Taylor JJ); Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155.

This may be particularly relevant when considering the general presumption of mens rea.

The difficulty I have with the applicant’s construction is that it has the effect of introducing words into the section that are not there.

A person can only be guilty of the offence if the person makes an “unwarranted demand with menaces”.

Whilst “menaces” is defined non-exhaustively, it is defined with reference to either an expressed or implied threat (s 249M(1)(a)) or a general threat (s 249M(1)(b)). The test is objective rather than subjective. The question is whether there was a threat, rather than whether the accused intended to make a threat.

The meaning of “menaces” is then limited in s 249M(2) by the proviso ending with “unless”. That is, it is necessary for the prosecution to establish either s 249M(2)(a) or s 249M(2)(b).

Both ss 249M(2)(a) and (b) are directed at the effect of the threat rather than the intent of the maker. That is, it either would cause an individual of normal stability and courage to act in a certain way or would cause the particular individual to act in a certain way (and the person who makes the threat is aware of the vulnerability of the recipient of the threat).

The applicant relies on the second reading speech of the Crimes Amendment Bill 2007 (NSW) for the purposes of establishing that the section was intended to be based on the Model Criminal Code as follows:

Other than supporting the submission that the new provision was intended to be based on the Model Criminal Code (it is in identical terms), the second reading speech does not assist in gleaning the intention of the legislature on this particular point. There is no reference to an intent to menace being an element of the offence.

The reference to the Model Criminal Code is a reference to the 1995 report of the Model Criminal Code Officers Committee established by the standing committee of the Attorneys General (“the MCCOC”).

Chapter 3 of the report includes commentary on the offence of blackmail and includes the statement that “the fault elements for blackmail require that the defendant intends to make a demand on another person and intends to reinforce that demand with menace”.

The reference to the fault elements is a reference to what became Pt 2.2, Div 5 (fault elements) of the Criminal Code 1995 (Cth) (“the Code”).

It is submitted that Chapter 3 of the report was the foundation for the offences in ss 139.1 and 139.2 of the Code, which are the federal analogues of the offence in s 249K of the Crimes Act.

Whilst they may be the comparable provisions in the Code, a consideration of ss 139.1 and 139.2 of the Code does not shed light on the proper construction of ss 249K or 249M of the Crimes Act.

The Commonwealth legislature adopted a different drafting technique in enacting the Code. As set out in s 3.1 of the Code, an offence under the Code consists of both physical and fault elements. The fault element for an offence under the Code may be intention: s 5.1. Intention is the default fault element when the section creating the offence does not specify a fault element: s 5.6. Intent to menace is incorporated into the offence provisions in the Code through s 5.6.

The Crimes Act does not contain a similar provision. Intention to menace does not become a necessary ingredient of the offence of blackmail through other provisions of the Act.

In my view, caution must be exercised in placing too much weight on extrinsic material of the type relied on by the applicant or construing the Crimes Act with reference to the Commonwealth legislation or even overseas enactments (the applicant also refers to the UK provision).

The often described limitations in discerning the intention of Parliament with reference to what is said in debates in Parliament [12] or commentary in reports, rather than the text of the provision, are evident in this matter.

In the second reading speech, the Attorney-General stated that the new blackmail provisions are based on the Model Criminal Code. However, there is no reference in the second reading speech to a requirement of an intent to menace. That emerges only through an analysis of the commentary in the report of the MCCOC.

Section 34 of the Interpretation Act 1987 (NSW) relevantly provides:

In addition to the general limitations to which I have already referred, there are two problems with the use of the commentary and comparable legislation as an aid to construction in this case.

Firstly, I do not consider s 249M of the Crimes Act to be ambiguous or obscure. Further, the importation of the meaning of menaces (as set out in s 249M) into s 249K does not lead to ambiguity or obscurity or produce a result that is manifestly absurd or unreasonable.

Secondly, I doubt that the commentary falls within the type of material described in s 34(2) of the Interpretation Act being material which may be considered in the interpretation of a provision of an Act.

Similarly, the reference to the Commonwealth legislation does not assist as the element of intent is incorporated into the similar offence in the Code through an express provision. The comparable sections are subject to default fault elements as set out in s 5.6 of the Code. This highlights the limitations of comparing legislation in other jurisdictions as an aid to statutory construction.

Further, I do not consider that the general presumption of mens rea has the effect of requiring an intent to menace as an element of the offence, having regard to the section as a whole. Section 249M must be interpreted in context. It is not the offence provision. It is in the nature of a definition section. It appears as part of Part 4B of the Crimes Act. It provides a meaning to the term “menaces” when used in the section creating the offence.

Unlike in cases such as He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 in which the issue was whether Parliament intended that the offence created by the provision should have no mental ingredient, intent is already an element of the offence. It is not necessary to import intent to satisfy any general presumption.

In my view, the proper construction of s 249M does not include the intent to menace as a necessary element of the offence.

In the circumstances, other than the error in making a direction based on the Victorian provision which could not have been disadvantageous to the applicant, the applicant has not established error in the directions given to the jury. I would not allow Ground 1.

I otherwise agree with the reasons and orders proposed by Hamill J.