Yutian Li, a Chinese woman working as an escort in Australia formed a relationship with the complainant in early 2016. The complainant led her to believe they would marry and enjoy a life together in Australia. Later that year he told her he had a terminal illness and did not want her to go through the resultant suffering of continuing their relationship. When she arrived unannounced in Sydney, intending to look after him, she discovered that he was already married and had a child, he did not have a terminal illness, and he did not wish to marry her.
Ms Li and Paul Pisasale then decided to demand from the complainant what was said to be Li’s airfares, accommodation and investigation costs in trying to find out the truth. Pisasale called the complainant on numerous occasions, demanding that the complainant pay a sum of money, and threatened to cause detriment to the complainant, including by being subjected to court proceedings, being sued for $200,000, incurring costs of $20,000 in court, being subjected to the adverse publicity of court proceedings and being summoned to go to court.
Two weeks later, on 1 February 2017, Pisasale had Mr Cameron James McKenzie, a solicitor friend, send a letter to the complainant wrongly claiming to be acting for the complainant’s wife demanding that he pay $8,400, which was said to reflect expenses incurred of $6,100 for a private investigator, $1,500 miscellaneous charges, and $800 of legal costs. That demand was accompanied by a threat to cause detriment to the complainant, namely that in the absence of payment the complainant was to “Answer for your actions in the Federal Court of Australia”, and that a failure to accept the offer may lead to the complainant being criminally prosecuted through his actions being discovered in a court of law.
Li and Pisasale were charged with two counts of extortion, and McKenzie with one count.
After a trial, a jury found all of them guilty as charged.
Li, McKenzie and Pisasale all appealed their convictions on the grounds that the verdicts were unreasonable and not supported by the evidence, and the learned trial judge erred in not leaving s 24 of the Criminal Code for consideration by the jury and directing the jury in relation to “reasonable cause”.
Extortion
Section 415 of the Criminal Code 1899 (Qld) provides that certain conduct is the offence of extortion:
“(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.”
In order to prove the offence under s 415, the jury must be satisfied beyond reasonable doubt that the person acted “without reasonable cause”.
Whether an accused acts “without reasonable cause” is a matter to be determined objectively: R v Campbell [1997] QCA 127 at p. 5. The scope of the application of the phrase “without reasonable cause” extends to both that which is demanded to be done as well as the threatened detriment: R v Succarieh [2018] 3 Qd R 104; [2017] QCA 282 at [29]- [46].
Section 22 of the Criminal Code 1899 provides a defence if the acts are done under a bona fide claim of right:
22 Ignorance of the law—bona fide claim of right
(1) ….
(2) But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
Mistake of fact
Section 24 of the Criminal Code provides a defence if the acts are done under an honest and reasonable, but mistaken, belief:
“24 Mistake of fact
(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.”
In order to exclude the defence under s 24 the jury must be satisfied that the belief under which the person acted was one not held honestly and reasonably. Even if held honestly, if the belief was not reasonable the defence fails. As will appear, the test to be applied to s 24 is an objective test, albeit that the belief is that of the particular accused, and not the putative belief held by the reasonable person.
In R v Succarieh [2018] 3 Qd R 104, the Court of Appeal referred to the decision in R v Campbell, and the question of the application of s 24:
“In Campbell, the Court (Fitzgerald P, Davies and McPherson JJA) had been referred to both the English cases and the article. In their reasons for judgment, their Honours observed:
“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. 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 therefor both involve an objective standard, viz., reasonableness.”
In Succarieh, Gotterson JA, referring to the way in which the findings were framed, and specifically a comment that “Subject to the claim of an honest and reasonable but mistaken belief, there is, therefore, no evidence of reasonable cause for the demand”. Gotterson JA made the following obiter dicta observation:
“I would add that it was not necessary that his Honour have reached conclusions as to honesty and reasonableness of a belief as to indebtedness within a context of s 24. It was, of course, open to him to have done so outside that context.”
Co-offenders
Section 7 of the Criminal Code provides for joint criminal liability for those involved in offending:
(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.
Section 8 of the Criminal Code provides for criminal liability for offences that are probable consequences of common intentions of unlawful purposes:
“When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
Reasonable cause and mistake of fact
It was submitted for Li and Pisasale that the trial judge was wrong to hold that the requirement of “reasonable cause” was entirely objective (ie whether the cause was reasonable to the ordinary reasonable person), and that section 24 of the Code added another dimension of subjectivity.
Morrison JA held that consideration of both “reasonable cause” and section 24 of the Criminal Code is of the asserted belief of the accused, but that the question is whether that belief is honestly or genuinely held on a reasonable basis. In each case, assessing reasonableness of the asserted belief is an objective test.
Li contended that in the case against her, the Crown could not beyond reasonable doubt exclude the section 24 defence, given there was no evidence she did not believe Pisasale’s investigation costs were not legitimate and given her limited English. However, Morrison JA rejected this submission, noting that there was no admissible evidence that she held such a belief (which could have put the defence in issue), Counsel for Ms Li did not advance such a case at trial, section 24 did not apply to her case because her guilt depended on the guilt of her co-offenders McKenzie and Pisasale, and the distinction between investigation costs and other costs was of no assistance to her.
Honest claim of right
McKenzie and Pisasale made submissions that the defence of honest claim of right under s 22(2) can apply to the issue of an absence of reasonable cause under s 415. In respect of count 2, it was submitted that the real issue in the trial was whether legitimate expenses were incurred and if not, whether Mr McKenzie honestly believed that they were.
However, Morrison JA rejected this submission, noting that the claim of right under s 22(2) of the Code must be “an honest claim of right and without intention to defraud”, and that the jury was instructed accordingly in a handout provided to them in accordance with Direction 76.1 of the Bench Book, and in the form approved in R v Mill.
Whether the verdicts were unreasonable
Li claimed that it was not reasonably open for the jury to convict her because there was no evidence that she encouraged Pisasale to seek reimbursement of investigator costs and she had abandoned any plan she had to recover the flights and accommodation costs. Morrison JA noted that the particulars of the charge were not a demand for investigation costs and that the Crown case was that there was no investigation at all, hence why there was a lack of reasonable cause. Furthermore, the evidence of her involvement was considerable, and included her providing Pisasale with the information to call the complainant and make the demands, had asked Pisasale to punish the complainant, was present and provided ongoing assistance when Pisasale made the calls, and her subsequent comments to Pisasale about not wanting to include the complainant’s immigration issues in the plan and no longer wanting to frighten him.
McKenzie claimed that it was not reasonably open for the jury to convict him because but it was not open to a jury to conclude beyond reasonable doubt that he knew that Ms Li had not incurred expenses (if, in fact, that had been proven). However, Morrison JA rejected this submission, noting among other things that McKenzie was given divergent amounts claimed by Pisasale, only dealt with Pisasale and exchanges subsequently entered into with Pisasale revealed an intent to scare the complainant. These matters entitled the jury to be satisfied of the absence of reasonable cause and the true nature of what was intended when the letter of demand was sent.
Consequently, the appeals were dismissed.
This bizarre story certainly supports the proposition that hell hath no fury like a woman scorned. In this case, Li’s anger and disappointment about having been lied to and rejected by the complainant sparked the events that led to the attempts to extort money from the complainant.
These appeals against conviction raised some interesting issues, however they also demonstrate that the tests of reasonable cause and mistake of fact are objective in nature. That is, the question is whether the defendant’s actions and beliefs were reasonable with reference to the objective circumstances, not their own subjective attributes. Furthermore, the proven lack of reasonable cause would in most cases negative or exclude a defence of honest and reasonable mistake of fact. In this case, the fictitious nature of the costs claimed and the attempts to deceive the complainant in relation to the identities of the persons making the demands, the threatened actions if the demands were not complied with and other matters excluded reasonable cause, mistake of fact and honest claim of right.
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