Court of Appeal (WA)|2017-01-27|Before: Buss P, Mazza JA, Mitchell JA

LAU -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 16 (27 January 2017)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LAU -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 16

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted after trial of one count of possessing a prohibited drug with intent to sell or supply it to another and one count of possession of cash reasonably suspected of being unlawfully obtained - The proper construction of the defence of duress in s 32 of the Criminal Code (WA) - Whether the trial judge erred by not directing the jury on the defence of duress - Whether the appellant had discharged the evidential burden in relation to the defence

Criminal Code (WA), s 31(3) (repealed), s 31(4) (repealed), s 32, s 417(1)

Abbott v The Queen (Unreported, WASCA, Library No 7814, 1 September 1989)

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166

Micalizzi v The State of Western Australia [2013] WASCA 96

NCH v The State of Western Australia [2013] WASCA 29

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176

Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280

Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319

Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

1 BUSS P: The appellant appeals against conviction.

3 Count 1 alleged that on 21 August 2014, at Rivervale, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).

4 Count 2 alleged that on 21 August 2014, at Rivervale, the appellant had in his possession cash in the amount of $4,800 reasonably suspected of being stolen or unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).

5 Count 3 alleged that on 21 August 2014, at Rivervale, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

6 Count 4 alleged that on 21 August 2014, at Rivervale, the appellant had in his possession cash in the amount of $8,250 reasonably suspected of being stolen or unlawfully obtained, contrary to s 417(1) of the Code.

7 Count 1 related to a bag containing methylamphetamine found by police in the boot of the appellant's car. Count 2 related to $4,800 cash found by police in the boot of the appellant's car. Count 3 related to two bags containing methylamphetamine found by police in a boxing bag at the appellant's home. Count 4 related to $8,250 cash found by police in the appellant's bedroom at his home.

8 On 18 November 2015, after a trial in the District Court before Levy DCJ and a jury, the appellant was convicted on counts 1 and 2 and acquitted on counts 3 and 4.

10 The trial judge directed the jury to consider whether the State had disproved duress in relation to count 3. A direction to that effect was not given in relation to any other count.

11 The sole ground of appeal alleges that his Honour erred in law by not directing the jury on duress in relation to counts 1 and 2.

12 Counsel for the appellant submitted to this court that the jury should have been directed to consider duress on counts 1 and 2 because 'the evidential foundation for duress on those counts had been satisfied'.

13 On 14 March 2016, Mazza JA granted leave to appeal.

14 On 21 August 2014, the appellant's car was stopped by police in Kooyong Road, Rivervale.

15 Detective Liam McNally attended soon after the stoppage and was informed by other police officers that drugs had been found in the appellant's car (ts 130).

16 Detective McNally spoke to the appellant and formed the view that an interpreter was required. The appellant indicated that his primary language was Cantonese (ts 130 - 131).

17 The drugs were in a cardboard box, with Chinese symbols on it, in the boot of the appellant's car (ts 135). Later, the drugs were analysed. They comprised 12.9 g of methylamphetamine (ts 145). The drugs were the subject of count 1.

18 Cash in the sum of $4,800 was found in the boot of the appellant's car (ts 133). The cash was the subject of count 2.

19 Detective McNally gave evidence that other police officers had arrested the appellant's mother, Ms Yau, and that she was brought to the place where the appellant's car had been stopped (ts 145 - 146).

20 The appellant and Ms Yau were then taken to their home at 95A Kooyong Road, Rivervale (ts 146). The appellant's partner was present at the home (ts 146).

22 They found drugs in a boxing bag in the garage. Later, the drugs were analysed. They comprised 41.6 g of methylamphetamine. The drugs were the subject of count 3.

23 Police also found $8,250 cash in the appellant's bedroom (ts 152). The cash was the subject of count 4.

24 Before the vehicle stoppage in Kooyong Road, the appellant was seen at the Assured Ascot Quays apartments (the hotel) at 150 Great Eastern Highway. The appellant was observed putting items in the boot of his car (ts 154).

25 The police seized a number of mobile telephones found in the appellant's car and at his home.

26 Detective McNally said the appellant had informed him that he received about $200 to $300 a day for his services in driving 'escort girls' from place to place (ts 201).

27 Ms Annette Broom, a forensic scientist employed by PathWest, gave evidence that she interpreted the results of forensic testing of items seized by police from the appellant's car and home (ts 276).

28 DNA on a clipseal bag containing the drugs found in the appellant's car matched his mother's DNA. The appellant was excluded (ts 278).

29 The appellant gave sworn evidence at the trial through an interpreter.

30 The appellant said his first language was Cantonese. He had limited English (ts 289). He was born and educated in Hong Kong. Since 2008 he had lived in Australia (ts 290).

31 The appellant said his mother was a gambler. Her debts increased as a result of her gambling. His mother owed 'a big sum of money' as a gambling debt (ts 299). In 2009, the appellant became aware that his mother was working as a prostitute (ts 336). He assisted his mother to operate her 'escort business'. He worked as a driver, acted as an interpreter for his mother and placed advertisements (ts 292). He also sublet a property at 35 Cohn Street, Carlisle to escorts and students (ts 293). He deposited money from his mother's 'escort business' into his bank account (ts 298 - 299).

32 The appellant said his bank account was the primary account for his mother's 'escort business'. His mother was able to withdraw money from the account (ts 298). The money in his bank account belonged to his mother (ts 365).

33 Since 9 June 2014, the appellant had been in a relationship with Yu Shan. They had a daughter (ts 300).

34 The appellant gave evidence that he had a suspicion in June 2014 that his mother was involved in the illicit drug trade because, despite her increasing debts, she was able to gamble (ts 301). He questioned his mother about the source of the money she used to gamble. She told him that she earned the money from the sale of Chinese painkillers (ts 301 - 302).

35 The appellant said that, until the end of July 2014, there were two men who assisted his mother with driving and translating services (ts 300, 302).

36 The appellant gave evidence that in July 2014 he spoke to his mother because he was again suspicious that she was involved in the illicit drug trade. The source of his suspicion was messages on her mobile telephone which she asked him to translate for her and, also, the amount of money that was being received (ts 305 - 306).

37 According to the appellant, his mother admitted that the money was the proceeds of drug dealing. The appellant said he told his mother that he would not assist her in doing anything illegal, including driving and translating, if it was related to drug dealing (ts 307). The appellant said his mother responded by threatening that 'if you don't help me, you're not my son and I will go to the bedroom and grab [a] gun and kill you and your wife and then I [will] suicide' (ts 307).

38 The appellant asserted in cross-examination that his mother also told him 'I'm going to get a gun from my handbag' (ts 358).

39 The appellant said he believed his mother would carry out her threat. His mother had friends who possessed guns. He also believed that he had no choice but to accede to his mother's demands, otherwise she would kill him, his wife and their unborn child (ts 308). The following exchange occurred in the appellant's examination-in-chief:

So what did you think your mum would do if you did refuse her? What did you think your mum would do if you refused to help her deal in drugs?---We all would die, including myself and my wife and the baby because, yeah, my wife was pregnant at the time and I did tell my wife about it.

So, Mr Lau - - -?---(Direct) Yeah?

- - - what choice did you have with refusing to assist your mum dealing drugs?---(Through interpreter) I have no choice because she has a friend got in possession of gun and she can do what she want to do and I've no choice at all.

...

Did you help her or refuse her?---I could only help her and offer her assistance because I had no choice and I don't know what will happen if I refuse her.

But what did you think she would do if you did?---I would certainly die and my wife and my - the baby's life would be at risk and they would certainly die too (ts 308).

40 The appellant said that at about the time his mother made the threat there was a change in her behaviour. She became more argumentative, stubborn and 'close to madness'. The appellant said he realised that the Chinese painkiller his mother was taking was in fact the drug 'ice'. He believed that her changed behaviour was attributable to her use of the drug (ts 309).

41 The appellant gave evidence that he did not want to work for his mother because he was concerned about her erratic behaviour and he was unhappy about being involved in drug dealing (ts 314).

42 The appellant said he approached his mother in mid-August 2014 and told her he no longer wanted to perform drug related work for her. His mother responded by threatening to disown him. Also, she repeated her threat that she would use a gun to kill him, his wife and their baby (ts 313 - 314).

43 The day after this conversation, the house where the appellant lived with his wife was broken into and ransacked. The owner of the house was badly bashed. According to the appellant, his mother arranged for those events to occur in order to frighten him. He came to this conclusion because the events occurred the day after the conversation in question and because the owner claimed that some of the people who broke into and ransacked the house and attacked him were from mainland China (ts 316).

44 After his mother repeated her threat and the house was broken into and ransacked, the appellant bought pepper spray and an 'electric gun' (Taser) for the purpose of protecting himself, his wife and their child (ts 315). The appellant then believed, as a result of the threat having been repeated by his mother and the house having been broken into and ransacked, that he had no choice but to continue assisting his mother in her drug dealing (ts 317). He thought that the only way to stop his mother's illegal activities and to extricate himself from the situation in which he found himself would be for the police to apprehend her (ts 318).

45 The appellant gave evidence that he attempted to facilitate his mother's apprehension by reporting her to the police via the police website. On 18 August 2014 at 3.42 pm, he sent the police an email in which he used the pseudonym 'Cam'. He opened an email account for the purpose of sending the email (ts 319 - 320). The email (exhibit 18) stated:

I was [sic] know someone sell the drug in 150 geat [sic] eastern hwy, room R4, female, age: more [sic] 45, chinese, and she will stay to 19 August only. Go check pls.

46 The appellant said he did not use his own email account because he believed that would be 'too risky'. He knew his mother's friends had guns and were gangsters. They would not hesitate to hurt him if they discovered that he 'had done something against [his] mum'. Some of them 'are even policemen' (ts 320 - 321).

47 According to the appellant, he hoped that the police would go to the street address he had given in his email and arrest his mother, so that she would be unable to hurt him and his family (ts 320).

48 On 19 August 2014 at 11.45 am, the police sent an email (exhibit 18) in response to the appellant's email, as follows:

Cam, Thankyou for your information, Belmont Police will make enquiries in relation to this matter.

49 The appellant gave evidence that he did not know the extent of his mother's criminal connections. However, he did know that the people who sold drugs to her were 'very bad people' (ts 321).

50 The appellant said that, even though his mother was in custody, he was still frightened that if she discovered he had sent the email to the police, his family would be in immediate danger (ts 321).

51 The appellant gave evidence that, on 21 August 2014, his mother told him to go to the hotel at 150 Great Eastern Highway and check out of the room where she had been staying and remove all of her property from the room (ts 322). He said his mother told him to put all of her property in his car and take it to 35 Cohn Street, Carlisle (ts 322). The room was 'registered in [his] name so [he had] to do the check out' (ts 322).

I went to 150 Great Eastern Highway to check out because my mum asked me to do so and I have no choice (ts 322).

53 He packed all of his mother's property into bags. He saw her property included glass tubes and scales. However, when he was in physical possession of his mother's property he was unaware that the property included the methylamphetamine the subject of count 1 and the cash the subject of count 2 (ts 322 - 323). He said he did not know about the methylamphetamine or the cash 'until police has unpacked them' (ts 323).

54 An iPhone seized by the police belonged to the appellant. A Nokia mobile telephone seized by the police belonged to his mother. The appellant's mother used the Nokia mobile telephone to communicate with her customers about illicit drugs. The appellant translated the customers' messages because his mother did not speak English (ts 323). He began doing this translation work for his mother after the two men, who had previously assisted her with this work, left at the end of July 2014 (ts 324).

55 On the day of the appellant's arrest and on the previous day, he sent text messages on behalf of his mother. He gave evidence that he thought the amounts referred to in the messages concerned either drug dealing or a loan (ts 447).

56 The appellant said his mother's threats to kill him and his family had not been withdrawn (ts 448).

57 As to the two bags found in the boxing bag in the garage at 95A Kooyong Road (count 3), the appellant said he put the box containing the bags in the boxing bag because his mother had asked him to hide them. He suspected that they contained drugs (ts 435).

58 As to the $8,250 cash in his bedroom (count 4), the appellant said the money belonged to him (ts 365). He denied that the money was the proceeds of drug dealing (ts 441).

59 The appellant gave evidence that when he was arrested he did not know if some of the police who had arrested him worked with his mother (ts 325).

60 The appellant admitted that when he was first interviewed by the police he did not tell the truth as to why he had bought the pepper spray and the Taser (ts 394).

61 Originally, the appellant told the police that he had bought those items for protection against friends of his housemate. He did not mention his mother.

62 The appellant's explanation for the lie was that:

(a) There were many police in the vicinity during the first interview and he 'didn't know who they were good and who they were not good' (ts 394).

(b) He was worried that some of the police in the vicinity may have been associated with his mother and that anything he said against her would be repeated to her (ts 394).

(c) His mother and an interpreter were present during the search of the home, and accordingly he could not speak against her while she was present (ts 397).

63 The appellant gave evidence that he believed the first real opportunity he had safely to inform the authorities about his mother's illicit drug dealing and her threats against him was when he was interviewed in prison. At that time, he told the truth and explained why he had lied during the first interview (ts 394 - 397).

The elements of the offences charged in counts 1 and 2

64 As to count 1, where an accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, and putting to one side for the moment the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:

(a) the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;

(b) at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MD Act;

(c) the substance or thing was, in fact, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MD Act (that is, subject to the exclusion in s 4(4) of the MD Act, a 'drug of addiction' as defined by s 5 of the Poisons Act 1964 (WA) or a 'specified drug' as defined by s 5 of the Poisons Act or a drug specified in sch I of the MD Act); and

(d) (unless the presumption in s 11(a) of the MD Act applies), the accused intended to sell or supply to another at least some of the substance or thing.

Subject to the issue of the accused's knowledge, those are the elements of the offence.

65 A number of propositions may be stated in relation to proof by the State of the knowledge of an accused where the accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

66 First, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing.

67 Secondly, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was 'a prohibited drug'.

68 Thirdly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific drug the subject of the charge.

69 Fourthly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.

70 The principles I have stated in relation to count 1 and s 6(1)(a) of the MD Act are taken from my reasons in Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [179] - [184] and the decisions cited in my reasons.

71 In the present case, the presumption in s 11(a) of the MD Act applied to count 1.

72 As to count 2, where an accused is charged, as a principal offender, with possession of a thing capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained, contrary to s 417(1) of the Code, the State must prove beyond reasonable doubt that:

(b) the thing which the accused possessed was capable of being stolen; and

73 The term 'possession' is defined in s 1(1) of the Code to include 'having under control in any manner whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing or property in question'.

74 It is not sufficient for the State merely to prove that the accused was in control of the relevant thing. The State must prove that the accused intended to possess it.

The appellant's case at trial in relation to counts 1 and 2

75 The appellant's case at trial in relation to counts 1 and 2 had two aspects. First, he denied having any knowledge (including any awareness or belief in the likelihood) that the drugs and the cash were in his car when he was stopped by police in Kooyong Road, Rivervale. Secondly, he was acting under duress in checking out of the hotel room at 150 Great Eastern Highway, removing all of his mother's property from the room, putting the property in his car and transporting the property.

The ground of appeal: the trial judge's ruling at trial in relation to counts 1 and 2 and the defence of duress

76 During discussions between the trial judge, the prosecutor and defence counsel in the absence of the jury, before his Honour commenced his summing up, his Honour invited defence counsel to explain how the defence of duress arose in respect of counts 1 and 2 (ts 454 - 455).

LEVY DCJ: But he's not committing an offence. He did not believe that unless he committed the offence, the acts constituted in the offence, the threat would be carried out. He had no knowledge of the acts amounting to the offence. You can't be acting under duress if you have no knowledge of the acts.

[DEFENCE COUNSEL]: Yes, your Honour. I accept your point (ts 455).

(a) the essence of the defence on counts 1 and 2 was that the appellant did not have any knowledge (in the relevant sense) of the drugs or the cash;

(b) on his own evidence, the appellant was not committing the offences alleged in counts 1 and 2; and

79 Counsel for the appellant in the appeal was not defence counsel at trial.

80 Later, before his Honour commenced his summing up, the prosecutor told his Honour and defence counsel, in the absence of the jury, that he had 'reconsidered [the State's] position' in relation to the defence of duress and that it was his submission that 'the defence of duress should be left' to the jury on both count 1 and count 3 (ts 471).

81 The prosecutor said that if the jury rejected the appellant's evidence that he did not have the requisite knowledge of the drugs then 'the defence of duress can apply' (ts 472 - 473).

82 The trial judge rejected the prosecutor's submission. His Honour ruled that he would leave to the jury the defence of duress in relation to count 3 but not in relation to count 1 (or count 2) (ts 475).

The ground of appeal: the evidential burden on the accused in relation to a defence

83 Section 112 of the Criminal Procedure Act 2004 (WA) states, relevantly, that 'the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice'.

84 The law in Western Australia concerning a summing up in a criminal trial before a judge and jury is not relevantly different from the law in trials at common law. See Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [77] - [78] (McHugh J).

85 If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as in the present case) the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, had been negatived? Questions as to the weight to be given to the evidence and the credibility of the accused are matters for the jury. See Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ).

86 A trial judge must leave a defence to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived the defence, even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it. See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 - 118 (Barwick CJ, Windeyer J agreeing), 132 - 133 (Menzies J); Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 - 162 (Gibbs CJ, Wilson, Brennan & Deane JJ); Fingleton [83] (McHugh J); Braysich [32].

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

...

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused (117 - 118).

[C]ounsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused. The law is always for the judge (133).

89 In Van Den Hoek, Gibbs CJ, Wilson, Brennan and Deane JJ said:

Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration (161).

90 In Fingleton, McHugh J emphasised, by reference to Barwick CJ's statement of the relevant principles in Pemble (117 - 118), that a trial judge is bound to put to the jury 'every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it' [83]. See also Braysich [32].

91 The accused may discharge the evidential burden by giving or calling evidence, or by pointing to evidence called in the State's case. See Braysich [37]. Slender evidence may be sufficient, depending on the facts and circumstances of the particular case, to discharge the evidential burden.

92 If the accused discharges the evidential burden then the jury is responsible for making findings of fact in relation to the elements of the defence.

93 In Braysich, the appellant, a stockbroker, was charged on indictment with numerous counts of creating a false or misleading appearance of active trading in securities on the stock market in contravention of s 998(1) and s 1311(1) of the Corporations Law (WA). Section 998(5)(a) deemed a person who 'enters into, or carries out, either directly or indirectly, any transaction of sale or purchase of any securities, being a transaction that does not involve any change in the beneficial ownership of the securities' to have created a false or misleading appearance of active trading in those securities on a stock market. Section 998(6) provided a defence to a prosecution for a contravention of s 998(1), constituted by an act referred to in s 998(5), 'if it is proved that the purpose or purposes for which the person did the act was not, or did not include, the purpose of creating a false or misleading appearance of active trading in securities on a stock market'. Section 1311(1) was a general offence provision which provided that a person doing an act that the person was forbidden to do by or under a provision of the Corporations Law was guilty of an offence unless that or another provision of the Law provided that the person was guilty, or not guilty, of an offence.

94 A majority of the High Court held that the trial judge had erred in ruling that there was no evidence upon which the statutory defence could be left to the jury. The legal burden and the evidential burden in relation to the defence conferred by s 998(6) rested upon the appellant. The critical point was whether there was evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established.

95 French CJ, Crennan and Kiefel JJ said in relation to the appellant's failure to produce evidence of his subjective purpose or purposes in relation to the share trading in question:

The appellant was not required to produce evidence of his subjective purpose or purposes in order to meet the legal burden of establishing the statutory defence. The legal burden on him was to prove on the balance of probabilities that he lacked the proscribed purpose. One way of doing that was to adduce or point to evidence inconsistent with the proposition that he had that purpose. He did not have to point to evidence of his actual purpose in order to invoke the defence. Any evidence that could support an inference that the appellant did not have the proscribed purpose was relevant to the statutory defence. The question whether he had discharged the "evidential burden" was to be answered accordingly [37].

The ground of appeal: the text of s 31(3) and (4) (repealed) of the Code

96 Before the enactment of the Criminal Law Amendment (Homicide) Act 2008 (WA) (the 2008 Amending Act), the provisions of the Code with respect to the defence of duress were contained in s 31. Section 31 provided, relevantly:

A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say -

...

(3) When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;

(4) When he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution;

But this protection does not extend to an act or omission which would constitute an offence punishable with strict security life imprisonment, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has, by entering into an unlawful association or conspiracy, rendered himself liable to have such threats made to him.

97 A number of features of s 31(4) may be noted. First, it was necessary that the threat be made by a 'person actually present'. Secondly, it was necessary that the threat be directed to the accused and not to a third party. Thirdly, it was necessary that the threat be a threat of immediate harm. Fourthly, it was necessary that the threat be to cause the death of or grievous bodily harm to the accused. Fifthly, the second paragraph of s 31(4) provided that the defence under s 31(4) did not extend to a number of offences.

98 Those and other features of s 31(4) and various aspects of s 31(3) were referred to and discussed in the Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (2007) 186 - 190.

The ground of appeal: aspects of the proper construction of s 31(3) and (4) (repealed)

99 In Abbott v The Queen (Unreported, WASCA, Library No 7814, 1 September 1989), the appellants were prisoners who were serving a sentence or sentences in Fremantle prison. They were charged with a number of offences after a riot in the prison. Prison officers were attacked, some with fists, and others with empty buckets and pieces of wood. Officers were taken hostage and the prison itself was set on fire. Each of the appellants appealed against his conviction, after a trial, of various offences. Some of the appellants were convicted of the unlawful detention of a prison officer. Those appellants were given leave at the hearing of the appeal to add an additional ground said to be based on s 31(3) of the Code. The additional ground alleged that the trial judge erred in failing to direct the jury that if they were satisfied that the actions of the accused were reasonably necessary, in order to resist actual and unlawful violence threatened to him or another person in his presence, they must acquit.

100 Malcolm CJ, Brinsden and Rowland JJ held that the effect of s 31(3) was that 'the appellant who relies upon it must concede, in order to make out the defence, that he was detaining the officers, but contend that the detention was not unlawful because the detention was reasonably necessary to resist actual and unlawful violence threatened to him or the officers he was detaining' (108). A little later, their Honours elaborated:

The act for which the appellant escapes criminal responsibility under s 31(3) must be the act of unlawfully detaining the officer, and the reason or the purpose of such detention must be to resist the threat of unlawful violence to himself or to the officer detained. It is necessary, therefore, to have evidence before the jury to show that the appellant was detaining the officers because he feared unlawful violence either to himself or to those officers from other prisoners. Once that evidence exists, the onus is on the Crown to negate the defence (109).

101 In Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280, this court considered s 31(3) and (4). McLure P (Owen JA agreeing) said [11] - [18]:

I turn to the text of s 31(3). The following propositions would appear to be uncontroversial. There must be actual and unlawful violence threatened to the person who did or omitted to do the relevant act (the accused) or another person; the threat of violence, whether it be to the accused or another person (or both), must be made in the presence of the accused; actual unlawful violence means the application of physical violence to the person, directly or indirectly (which would include a sexual assault); and the act or omission must be reasonably necessary in order to resist the threat.

The test of what is reasonably necessary is objective. However, what is reasonably necessary must be determined by reference to the circumstances in which the accused found himself at the relevant time, including what he knew or ought reasonably to have known.

The expression 'in order to' requires that there be a causal connection between the threat and the accused's (prima facie) criminal act or omission. As a matter of fact, it is unlikely that the objective test could be satisfied in the absence of evidence from the accused as to what caused him to engage in the conduct in question. Indeed, the court in Abbott v The Queen (Unreported, CCA SCt of WA, Library No 7814, 1 September 1989) concluded that the defence in s 31(3) is only available if the accused concedes the existence of the relevant act(s) or omission (111). It is unnecessary to determine the correctness of that proposition.

The next issue is the meaning of the word 'resist' in the phrase 'act ... in order to resist ... violence threatened to him, or to another'. In its context it must be a reference to resisting the threat of unlawful violence made by the maker of the threat. To resist is to 'oppose' or 'strive against' the maker of the threat carrying it out. That is consistent with the requirement that the accused must be in the presence of the person making the threat at the time it was made. If 'resist' has the restricted meaning of opposing or striving against the maker of the threat, the appellant's duress defence had to fail.

It is instructive to compare the use of the word 'resist' in s 31(3) with the language of s 31(4). The relevant act in s 31(4) must be in order to 'save himself from' a threat of death or grievous bodily harm. That expression is wider than 'resist' and would cover a contingent threat (eg 'I will cause you grievous bodily harm if you do not act as a drug courier').

It is unlikely to have been the legislative intention to have a duress defence in s 31(3) that was freed from the stringent limitations incorporated in s 31(4). My preliminary view is that the word 'resist' in s 31(3) is intended to have the restricted meaning. However, it is not appropriate to determine that issue in this appeal. I will proceed on the unstated assumption on which all parties proceeded at trial and in the appeal namely that 'resist' means save himself or another from the threat of violence. That is consistent with the broad approach of this court in Quartermaine v Western Australia [2008] WASCA 22; (2008) 36 WAR 384 where the construction issue was not raised or considered.

On the wide view of 'resist', s 31(3) becomes an additional avenue for raising the defence of duress. In that event s 31(3) must be construed against the background of the strong policy considerations in that area of the law. They were identified by Gleeson CJ in Rogers v The Queen (1996) 86 A Crim R 542 and King CJ in R v Brown (1986) 43 SASR 33, both of which were approved by the High Court in Taiapa v The Queen [2009] HCA 53 [31] - [32], [36]. King CJ said in R v Brown:

'The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation (40).'

What is reasonably necessary is a value judgment involving a question of law so there must be evidence that, in the view of the court, would justify the jury in finding that the conduct was reasonably necessary: Taiapa. (emphasis added)

See also Micalizzi v The State of Western Australia [2013] WASCA 96 [28] - [30] (McLure P).

102 Section 31(3) and (4) were repealed by the 2008 Amending Act.

103 It is unnecessary to consider the correctness of the statement in Abbott that the defence in s 31(3) was only available if the accused conceded the existence of the relevant act or omission.

The ground of appeal: the text of s 32 of the Code

104 Section 32 of the Code provides (and, when the appellant allegedly committed counts 1 and 2, provided):

(1) A person is not criminally responsible for an act done, or an omission made, under duress under subsection (2).

(2) A person does an act or makes an omission under duress if -

(i) a threat has been made; and

(ii) the threat will be carried out unless an offence is committed; and

(iii) doing the act or making the omission is necessary to prevent the threat from being carried out;

(b) the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

(3) Subsections (1) and (2) do not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of -

(a) doing an act or making an omission of the kind in fact done or made by the person under duress; or

(b) prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.

105 The term 'offence', referred to in s 32(2)(a)(ii), is defined in s 2, as follows:

An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.

106 Section 32, as currently enacted, was inserted by the 2008 Amending Act.

107 The text of s 32 is materially different from the text of s 31(3) and (4) (repealed). For example, none of the features of s 31(4) to which I have referred at [97] above was incorporated in s 32.

The ground of appeal: aspects of the proper construction of s 32

108 By s 32(1), a person is not criminally responsible for an act done, or an omission made, under duress as specified in s 32(2).

109 Section 32(2) states in effect that a person does an act or makes an omission under duress if the conditions set out in s 32(2) apply and are satisfied. There are in essence five conditions.

110 First, the person must believe that a threat has been made: s 32(2)(a)(i).

111 Secondly, the person must believe that the threat will be carried out unless an offence is committed: s 32(2)(a)(ii).

112 Thirdly, the person must believe that doing the act or making the omission is necessary to prevent the threat from being carried out: s 32(2)(a)(iii).

113 Fourthly, the act or omission must be a reasonable response to the threat in the circumstances as the person believes them to be: s 32(2)(b).

114 Fifthly, there must be reasonable grounds for the beliefs stated in the first, second, third and fourth conditions: s 32(2)(c).

115 Each of the beliefs referred to in the first, second, third and fourth conditions is the person's subjective belief. So, the person must have a subjective belief: that a threat has been made (the first condition); that the threat will be carried out unless an offence is committed (the second condition); that doing the act or making the omission is necessary to prevent the threat from being carried out (the third condition); and as to the circumstances (the fourth condition).

116 As to the fourth condition, the act or omission by the person must be a reasonable response (that is, an objectively reasonable response) to the threat in the circumstances as the person subjectively believes them to be.

117 As to the fifth condition, there must be reasonable grounds (that is, objectively reasonable grounds) for each of the person's subjective beliefs within the first, second, third and fourth conditions.

(a) As to s 32(1) and the chapeau of s 32(2), the 'act' or the 'omission' which the person allegedly did or made under duress must be an element of the charged offence. This follows from the nature and content of s 32(1), which operates, in effect, to excuse a person from criminal responsibility for an act done, or an omission made, under duress if the conditions set out in s 32(2) apply and are satisfied. If the relevant act or omission was not a criminal act or omission, for the purposes of the charged offence, s 32 would be otiose.

(b) As to the 'threat' referred to in s 32(2)(a), s 32(2)(b) and s 32(3), the term 'threat' is not defined for the purposes of those provisions. The term is defined in s 332(4) and s 338 of the Code, but neither of those definitions applies to s 32. The term 'threat' in s 32 bears its ordinary and natural meaning. A 'threat', for the purposes of s 32, includes an express or implied statement of an intention to kill or injure another, or to cause loss or damage to another or his or her property. This explanation of the content of 'threat' in s 32 is not an exhaustive account. The broad ambit of the term 'threat' in s 32 is circumscribed in its application by the requirement in s 32(2)(b) that the relevant act or omission be a 'reasonable response' to the 'threat' in 'the circumstances' as the person believes them to be, and the requirement in s 32(2)(c) read with s 32(2)(a) and s 32(2)(b) that there be 'reasonable grounds' for the person's 'beliefs'.

(c) Section 32(2)(a)(ii) requires that the person do the act or make the omission in the belief that the threat will be carried out unless 'an offence' is committed. Section 32(2)(a)(ii) must be read with the definition of 'offence' in s 2. When that is done, it is apparent that s 32(2)(a)(ii) requires that the person do the act or make the omission, within s 32(1) and the chapeau of s 32(2), in the belief that the threat will be carried out unless an act or omission, within the definition of 'offence' in s 2, which renders the person doing the act or making the omission liable to punishment, is committed. The requisite belief must relate to the whole of the subject matter of s 32(2)(a)(ii). The act or omission, within the definition of 'offence' in s 2, must necessarily be a criminal act or omission because the definition requires that the doing of the act or the making of the omission will render the person concerned liable to punishment. However, the focus of s 32 is on 'an act' done or 'an omission' made, within s 32(1) and the chapeau of s 32(2), as distinct from 'an offence' committed. The act done or the omission made by the person, within s 32(1) and the chapeau of s 32(2), is not necessarily co-extensive with the acts or the omissions which constitute the 'offence' referred to in s 32(2)(a)(ii). It is not essential that the 'offence' referred to in s 32(2)(a)(ii) be identical to the charged offence. Section 32 distinguishes between an act or omission, on the one hand, and an offence, on the other. Section 32(1) excuses a person from criminal responsibility for 'an act' done, or 'an omission' made, under duress within s 32(2). Section 32(1) does not excuse a person from criminal responsibility for 'an offence' committed, even though that may be the effect, in a particular case, of the person being excused from criminal responsibility for an act done, or an omission made, under duress within s 32(2).

(d) By s 32(2)(a)(iii), the doing of the act or the making of the omission must be 'necessary' to prevent the threat from being carried out. The word 'necessary' is susceptible of various meanings. Its meaning in a statute must be determined by reference to the connection in which it is used. The word takes colour from its context. In s 32(2)(a)(iii), the word 'necessary' connotes that the doing of the act or the making of the omission by the person is essential (and not merely useful, convenient or expedient) to prevent the threat from being carried out.

(e) As to s 32(2)(b), the determination of the 'reasonableness' of the act or omission as a response to a 'threat', which threat satisfies s 32(2)(a), involves an evaluation of the nature and quality of the act or omission in the context of:

(b) the nature and quality of 'the circumstances' as the person believes them to be.

119 By s 32(3), neither s 32(1) nor s 32(2) applies if the threat is made by or on behalf of a person 'with whom the person under duress is voluntarily associating' for the purpose of:

(a) doing an act or making an omission of the kind in fact done or made by the person under duress; or

(b) prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.

120 It is unnecessary, in the present case, to consider the proper construction of s 32(3). It was not suggested at trial that s 32(3) applied to the appellant. At the hearing of the appeal, counsel for the State conceded that, in the present case, s 32(3) was not engaged (appeal ts 35). The concession was properly made.

121 The accused has an evidential burden in relation to the defence of duress, as specified in s 32(2).

122 If the accused satisfies the evidential burden, the legal burden is on the State to negative the defence:

(a) by excluding at least one of the conditions in s 32(2) beyond reasonable doubt; or

(b) by proving beyond reasonable doubt that s 32(1) and s 32(2) do not apply by virtue of s 32(3).

See Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [5] (French CJ, Heydon, Crennan, Kiefel & Bell JJ).

123 In Taiapa, the appellant was convicted of trafficking and of possessing a dangerous drug, namely methamphetamine, after a trial before a judge and jury in the Supreme Court of Queensland. The appellant's defence was that he had had no option than to comply with a demand by criminals (two men named Tony and Salvatore) that, in satisfaction of a debt he owed to them, he should travel to New South Wales and collect packages which contained dangerous drugs. The appellant claimed that on two occasions he had been threatened at gunpoint by the criminals and that they had threatened to harm members of his family if he did not obey their instructions. At trial, the appellant said he had not reported the threats to the police because he did not believe that the protection the police could afford would have been fully effective. The trial judge refused to leave to the jury the defence of compulsion provided for in s 31(1)(d) of the Criminal Code (Qld). The Court of Appeal of Queensland held that there was no evidentiary basis for a conclusion that the appellant's belief as to the effectiveness of the ability of the police to defeat the threat was based on reasonable grounds. Accordingly, the trial judge had been correct not to leave the issue of compulsion to the jury. The High Court affirmed the decision of the Court of Appeal. French CJ, Heydon, Crennan, Kiefel and Bell JJ said:

The circumstance that the demands and threats made by Tony and Salvatore were made with a gun and were accompanied by instructions not to report the matter to the police does not support the reasonableness of the applicant's belief that he had no option other than to comply with the demands in order to escape the carrying out of the threats. The applicant had, as he acknowledged, ample opportunity to seek the assistance of the police. He offered three reasons for his failure to do so. The first was that he did not have sufficient information to enable the police to identify Tony and Salvatore. The second was that he did not believe that police protection was '100 per cent safe'. The third was that Tony and Salvatore were 'not your every day drug dealers' and were unlikely to fall into a booby trap. The Court of Appeal said that the police could have placed surveillance on the applicant's premises and that a controlled delivery of the drugs to Tony and Salvatore might have led to their arrest. It is true that there was no evidence about the investigative methods or the resources available to the police. However, this does not undermine the Court of Appeal's conclusion. There is no reason to doubt it. The applicant's belief that he did not have sufficient information to enable the police to identify Tony and Salvatore does not take into account that the police may have known more about these men than he thought that they did or that the police may have been able to find out more about them than he thought they could. In any event, it does not explain his failure to report the matter to the police in order to seek their protection. The applicant's belief that police protection may not be 100 per cent safe provided no basis for a reasoned conclusion that it was not. It may explain the applicant's preference for complying with the unlawful demands. However, an unparticularised concern that police protection may not be a guarantee of safety cannot without more supply reasonable grounds for a belief that there is no option other than to break the law in order to escape the execution of a threat.

The Court of Appeal was correct to hold that no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that there were not reasonable grounds for the applicant's belief within s 31(1)(d)(ii) [40] - [41]. (emphasis added)

The ground of appeal: the appellant's submissions

124 In Micalizzi, the appellant and another man, Santos, were charged with two counts in an indictment. Each count alleged that, on a specified date at Jandakot, the appellant and Santos had in their possession a prohibited drug, with intent to sell or supply it another, contrary to s 6(1)(a) of the MD Act. After a joint trial before a judge and jury, both the appellant and Santos were convicted on each count. The prohibited drugs in question were transported in a light aircraft from Bankstown airport in New South Wales to Jandakot airport in Western Australia. Santos was the pilot and the appellant was a passenger. No-one else was on board. Upon arrival at Jandakot airport, the appellant and Santos were apprehended by police. The aircraft was searched and a black sports bag was located in its cargo hold. The bag contained the prohibited drugs.

125 The appellant's case at trial was that he was not at any time in possession of the prohibited drugs found in the black sports bag.

126 More particularly, the appellant's case was that:

(a) the appellant believed that money, and not prohibited drugs, was in the bag;

(b) alternatively, if the jury was satisfied beyond reasonable doubt that the appellant was in possession of the prohibited drugs, he was not criminally responsible in that it was reasonably necessary for him to be in possession of the drugs in order to resist actual and unlawful violence threatened to him, or to another person in his presence: s 31(3) (repealed) of the Code.

127 The appellant gave sworn evidence at the trial to the effect that he was a passenger on the aircraft only because a man named Bowa had threatened to kill him and rape his mother. He maintained that Bowa had made these threats in order to force him to transport what he believed was money from Sydney to Perth, so that the money could be used to repay a debt owed by Bowa. The appellant denied that he knew or believed there were prohibited drugs in the bag found on the aircraft.

128 The trial judge left the defence of duress to the jury.

LAU -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 16 (27 January 2017)

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LAU -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 16 (27 January 2017)

Legislation Cited (3)

Cases Cited (12)